Download PDF - Robson Hall Faculty of Law

8 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
of the other trials he presided over, involving other persons associated with the
uprising, he could not be called a highly skilled lawyer or jurist. 29
C.
The Charge
The Canadian government had the choice of three statutes under which it
could lay charges against Riel: the 1838 Fenian Act, 30 the 1868 Canadian High
Treason Felony Statute, 31 and the medieval 1351 Statute of Treasons. 32 The last
made “high treason” the most serious offence in English law, with death being the
only possible outcome upon conviction. The decision to charge Riel under this
1351 legislation was made by the Justice Minister, Sir Alexander Campbell, and
by the Prime Minister, Sir John A. Macdonald. Of the seventy-two participants
charged in the rebellion, only Riel was charged with high treason, 33 the only
charge that carried an automatic death penalty.
Two intertwined reasons have been suggested for the government’s decision.
First, the record suggests that Macdonald wanted Riel executed. 34 Second, the
government was politically motivated to paint the rebellion as the act of one evil
man, rather than what it was: a Métis movement for recognition of their rights to
land, language and religion. 35
The decision to charge Riel with high treason was risky. The essence of high
treason was the act of a citizen against the sovereign. But Riel had become an
American citizen on March 16, 1883. The appropriate charge for Riel, a noncitizen,
would have been under the Fenian Act, which made it treason for a
citizen of another country to levy war against Canada. 36 Either the government
was unaware of Riel’s American citizenship, or they knew and were willing to take
the chance – correctly as it turned out – that this “technicality” would not result
in Riel’s acquittal. 37
29
30
31
32
33
34
35
36
37
Ibid at 56-62.
In 1838, Upper Canada passed An Act to protect the Inhabitants of this Province against Lawless
Aggressions from subjects of Foreign Countries, at peace with Her Majesty, 1838, 1 Vict., c 3. This was
subsequently amended by 1840, 3 Vict, c 12. The statute was so heavily relied on to prosecute
the Fenians that it became known as the “Fenian Act”. Under the Fenian Act, it was treason for
a citizen of another country, an alien, to levy war against Canada.
SC 1868, 31 Vict, c 69, formally titled An Act for the better security of the Crown and of the
Government. Under s 5, it was treason-felony to levy war against the Crown or the government.
(UK), 25 ed III, Stat 5, c 2.
Goulet, supra note 25 at 48.
Jean Teillet, “Exoneration for Louis Riel: Mercy, Justice, or Political Expediency” (2004) 67 Sask
L Rev 359.
Bumsted, supra note 12 at 271.
Teillet, supra note 34.
Riel was charged with breaches of allegiance (as a British subject) and local allegiances (as a
person living with Canada under the protection of the sovereign). In fact, due to the
Naturalization Act, 1870 of the United Kingdom the doctrine of national allegiance was wiped