issued a royal proclamation giving Governor Murray, among other things, full authority to constitute justices of the peace and appoint men of his choosing to the positions. So began the process that would eventually produce justices of the peace in Ontario, and, specifically, in Muskoka, a century later.
It was one thing to have the authority to create JPs, quite another to have the right handle on how to do so. After all, the JP’s functions in England had developed over time as a distinctive component of a most particular society, evolving to suit English needs in ways appropriate for English conditions, in ways only possible within that setting. Such uniqueness meant replicating justices of the peace, in short order and in a different society, was difficult.
The quest to adapt British institutions and practices within North America’s fledgling communities took unexpected turns. It seemed probable that grafting English laws and judicial procedures onto an existing French society, in the wake of centuries of French–English warfare and mutual hatred, would create a toxic reaction leading to rejection of the transplant. Yet, the relationship between magistrates, police, and people in Quebec and Lower Canada did not seem overly difficult. With evidence from Quebec records following 1764, historian Donald Fyson has now corrected many earlier misinterpretations about this “British” institution in a largely French-speaking community, documenting, from “banal cases involving no particularly interesting judicial principles,” substantial continuity between the old French regime and the new British order that replaced it. The transplant was taking root, at least where JPs were appointed in the established communities of Quebec.
Reaching beyond those established Quebec settlements, however, the situation was quite different as the colony expanded into the unsettled territory to the west that would in time become Ontario. The year after Murray created the first justices of the peace in 1764, new districts were created in Quebec’s sprawling regions of wilderness. “Provisions for administration at the local level were provided for each of the newly created districts at this time by the granting of commissions as justices of the peace,” explains Wilson, “with three justices empowered to hold quarter sessions in each of their appointed districts.” The principal problem with these districts serving as the primary judicial units was that their much larger size and sparsely settled population, compared to their corresponding county unit in England, made it hard to find qualified men to serve as JPs. The problem was further exacerbated because Roman Catholics were now barred by law from being appointed and few Protestants lived in Quebec.
The result was predictable. Relationships of power and authority became strained, laws went unenforced, procedures remained unfamiliar, and the different outlooks of English-speaking and French-speaking colonists clouded the picture — problems that were compounded by the fact that the vast areas of the new districts made control and administration difficult and slow. Dissatisfaction was mounting. Inhabitants, demanding a say in government, agitated in part because of the problems that arose from an administrative and legal system operated by justices of the peace. The British government responded with a new constitution, embodied in the Quebec Act of 1774. Despite other changes, it maintained the institution of a local magistrate in the French-speaking territories and extended this judicial-administrative position to settlements in the inland territory that would, in time, become Ontario.
After the 1770s this inland Quebec territory began filling in with settlers. In just a decade and a half, colonial development in this sector advanced so much that it required its own local structure for governance, rather than depending on its distant capital down the St. Lawrence. A separate government system soon became necessary for this westerly region because its new settlers, unlike those in old Quebec, were mostly English-speaking, non-Catholic, and, also, were militant supporters of the British Crown. Many had fought on the losing side in the American Revolution, when thirteen of England’s colonies had rebelled against the Crown and fought to create a new republic, the United States of America. Those on the losing side, fleeing with their lives from torched homes and confiscated farms, were dubbed “United Empire Loyalists.” They started life anew in the remaining British North American territories, some settling in Nova Scotia, others crossing into this empty inland territory to live on the north shore of Lake Ontario and in the Niagara Peninsula. They brought with them loyalty to the Crown, an aggrieved sense of injustice that would long endure in Ontario’s political culture as anti-Americanism, and familiarity with such British institutions as the local justice of the peace as it had evolved it in a North American setting.
To accommodate this altered reality, the British Parliament again revamped constitutional arrangements, this time in the Constitutional Act of 1790, changing Quebec’s governance structure by dividing the colony, renaming its successor parts Lower Canada and Upper Canada (in relation to their lower and upper elevations on the St. Lawrence River.) Besides dividing and renaming territory, the act also established a constitution for the new Province of Upper Canada.
By this date English-style justices of the peace had already been exercising jurisdiction in this extended segment of Quebec territory, as thinly populated as it had been, for over two decades. Under this 1790 reconstitution, the Court of the General Quarter Sessions of the Peace was left untouched, so the structure of local government remained basically as it had been, with JPs wielding significant roles in local government as well as administering justice. A landmark 1790 development, creation of a legislature, opened colonial life in the province to something more democratic than before. Election of representatives to Upper Canada’s first legislative assembly followed in 1791.
This legislature in the early years of Upper Canada was, as Wilson notes, “confined largely to provincial matters, and the actual maintenance of local affairs and justice in Upper Canada was controlled by the men appointed justices of the peace sitting in the Court of General Quarter Sessions of the Peace for each district.” This arrangement replicated the pattern in England familiar to the MPs at Westminster who debated and enacted the Constitution Act of 1790. It was also favoured by Britain’s Colonial Office, which sought, in as many ways as it could, to control political life in its remaining North American colonies, having just lost many of its most prosperous and populous ones along the Atlantic seaboard. JPs, given pivotal roles in local government across the province, were appointed with the approval of the British governor in Upper Canada.
The British regime was still shaken by the French and American revolutions, and feared “mob rule” and “democracy”; these two were, in fact, identified as the same thing, an apprehension that worked itself into many controls the British instituted in Upper Canada to restrain North America’s yeasty democratic tendencies. Where citizens of the new American republic swore allegiance to the Constitution, Upper Canada’s residents were “British subjects,” whose loyalty was to the Crown. These were two fundamentally different foundations upon which to erect the “rule of law.” The 1791 election of an assembly of representatives in Upper Canada was a timid step in the direction of democracy. This legislative body remained ineffectual because real power still resided with the legislative council, a second chamber with greater powers and whose regime-supporting members were not elected but appointed by the governor.
Within this configuration designed to constrain democratic tendencies, the province’s justices of the peace played major roles, thanks to their powerhouse combination of judicial and governmental functions in local affairs. Until the 1830s, as historian James Aitchison notes, “No town meeting could legally be held without a warrant for the purpose signed by two justices.” In other words, freedom of assembly existed only if the regime, represented by its justices of the peace, approved of who was going to gather, and for what purpose.
The “rule of law” supported the established order by keeping democracy at bay in other ways, too. When a provincial statute in 1793 empowered Upper Canada’s townships to select officials who would handle minor local matters, not only was the authority of these men limited, they were subject to supervision by justices of the peace even in handling their minor tasks. That was not an aberration. It was a local microcosm of the provincial scene itself, where elected representatives in the assembly were severely limited in their roles and subject to being overridden
