Ontario Manitoba Boundary Dispute

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Ontario Manitoba Boundary Dispute

At the time of Confederation the Ontario provincial boundary was believed to end somewhere near Port Arthur (Thunder Bay). It never went as far north as Hudson's Bay and followed instead along the “height on land” that divided the drainage basin of the Great Lakes from that of Hudson’s Bay. Quebec was also considerably smaller, only about one half of it's current size. What is now Alberta, Saskatchewan, Northern Manitoba, Northern Ontario and Northern Quebec was known as Rupert's Land until 1869 when it was sold to the Canadian government for £300,000. When transfer of the land was complete the vast territory was named the Northwestern Territory. It was from this Territory that the tiny Province of Manitoba was created on July 1, 1870. However, when Manitoba was initially created it was no bigger than the size of the settlements along the Red River Valley, making it the smallest province in the Confederation.

Initially the administration of justice for the Northwestern Territory was placed under the control of the Lieutenant-Governor of Manitoba and, in anticipation of further land grants, the Government of Manitoba created several Boundary Acts in the belief that the Federal Government would eventually enlarge her borders to include parts of the Northwestern Territory. The first such request was made on April 24, 1873, when the Conservative Government of Manitoba sent several members of her cabinet to Ottawa to press for an enlarged boundary from their federal counterparts. If Manitoba's request had been granted the province would have been enlarged to nearly 300,000 sq. miles, with ports on both Hudson's Bay and Lake Superior. Unfortunately the matter was never settled as the Federal Government under John A. MacDonald was voted out of office only a few months later. When the new Federal (Liberal) Government under Alexander MacKenzie came into power, it declined to grant Manitoba's request, being openly more sympathetic to their Ontario counterparts request for an enlarged boundary into the same area.

However, on April 12, 1876, prior to being voted out of office, the MacDonald Government passed “An Act respecting the North-West Territories to create a separate territory out of part there of” (39 V, c21). The Act created, within the North-West Territories, an area the size of Manitoba’s request (basically all of northern Manitoba and Ontario today). The Act stated that the land “shall be and is hereby set apart as a separate district of the said North-West Territories by the name of the District of Keewatin [and that] the Lieutenant-Governor of the Province of Manitoba, or the person acting as such, shall ex-officio be Lieutenant Governor of the said District of Keewatin ... and shall make provision for the administration of justice in the said district, and generally to make, ordain and establish all such laws, institutions and ordinances as he may deem necessary for the peace, order and good government therein”. The Act was proclaimed in force on Oct. 7, 1876, only weeks before MacDonald was voted out of office.

The Keewatin Act, as it became locally known, made Manitoba responsible for the 300,000 square miles of land it wanted, but without title to it. Eventually, however, the Manitoba Government hoped that the District of Keewatin would be added to her provincial boundaries. Except for the prohibition of intoxicants, the laws in the District of Keewatin were basically the same as in Manitoba.
It seems that the Ontario Government also had its eye on the District of Keewatin and they entered into negotiations with the newly elected Federal Liberal Government to obtain it. Although Manitoba was given the role of administering justice in the area, Ontario laid claim to the land, stating that it had originally been part of Upper Canada which, in turn became the former province of Quebec which Britain had acquired from France in 1759 after the Battle of the Plains of Abraham. The  Treaty of Paris, signed on Feb. 10, 1763, ceded all French possessions in North America to the English. At the time, French held territory included the Great Lakes Basin and territory "running from a corner of Pennsylvania, along the Ohio River, westward, to the Bank of the River Mississippi, and northward to the southern boundary of the Merchants Adventurers of England Trading into the Hudson's Bay".

The drafters of the Treaty of Paris believed the that the Mississippi River flowed north to the Arctic sea and hence the western most boundary of British North America would be the center of the Mississippi River.

British North America Act 1867, Section 6, reads: The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form Two separated Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec

The Provinces of Upper and Lower Canada were created by the Constitutional Act of 1791. The Act divided the Province of Quebec into Lower Canada (on the lower reaches of the St. Lawrence River) and Upper Canada, along the present-day Ontario-Québec boundary.

As far as the Ontario Government was concerned this old Treaty between France and England established Ontario’s boundary somewhere west of the Lake of the Woods. Ontario’s interpretation of the Treaty was that her boundary lay due north from the western most end of the Mississippi River. As the Mississippi River has its beginning somewhere near Wadena, Minnesota, a line drawn due north from there places Ontario’s western most boundary somewhere near where it lies today, about 50 kilometers west of Kenora (formerly known as Rat Portage).

As far as the Federal Government was concerned (under John A. MacDonald anyway), the Treaty established that Ontario’s western most boundary lay along a line drawn due north from where the Ohio River (traveling westward) meets the banks of the Mississippi River. As these two rivers meet near Cairo, Illinois, a line drawn due north from there places Ontario’s most we sternly boundary somewhere near Thunder Bay (formerly the towns of Port Arthur and Fort William).

MacDonald’s claim that the Ontario boundary lay near Thunder Bay was based on an 1817 court decision stemming from the trial of Charles de Reinhardt who was accused of a murder near the Dalles, a narrowing of the Winnipeg River about 19 kilometers north of Rat Portage. De Reinhardt was tried in the Criminal Court of Lower Canada (now Quebec) because it was thought that the Lake of the Woods region lay in “Indian Territory” beyond the edge of Upper Canada (now Ontario). De Reinhardt’s lawyer argued that the Court had no jurisdiction in the case because the Lake of the Woods was actually part of Upper Canada. After listening to historical arguments about the frontier boundaries of Canada, Chief Justice Jonathan Sewell ruled that the western boundary of Upper Canada (Ontario) ended between Port Arthur and Fort William and that de Reinhardt was properly tried in Lower Canada.

To resolve the dispute, once Alexander MacKenzie came to power, he appointed as Board of Arbitrators to settle the question of where Ontario’s western boundary lay. MacKenzie, being openly sympathetic to Ontario’s claim to the area, chose a Board that did not contain a single representative from either Manitoba or the District of Keewatin. On August 3, 1878, the Board ruled that Ontario’s boundary lay somewhere west of Rat Portage (now Kenora).
However, shortly after the Board’s decision was released, Alexander MacKenzie’s Liberal Government was voted out of office and John A. MacDonald’s Conservative Party was returned to power. When asked to ratify the Board’s decision, MacDonald refused stating that the Board had shown an "utter disregard to the interests of the Dominion as a whole [in their decision]” and he refused to accept their ruling. As such the land was not granted to Ontario. Nevertheless, the Ontario Government passed an "Act Respecting the Administration of Justice in the Northerly and Westerly parts of Ontario", and while it did not yet have the authority to administer justice there, the Government declared that it was "of the highest importance ... to secure the peace, order and good government of the area". Notwithstanding this declaration Ontario would not appoint any provincial constables in the area for another three years even though they were to complain to the Federal Government that “lawlessness abounded in the area”.

While the Federal Government refused to recognize Ontario's claim, effectively voiding their Act, in May 1880 the Conservative Party did pass an "Act for the Administration of Criminal Justice [in the Disputed Territory]” (43V, c36). The Act provided that persons arrested in the Disputed Territory could be tried and punished under the laws of either Ontario, Manitoba or the District of Keewatin, however the Act was only to remain in force until the end of the next Session of Parliament and no longer. Thus, by providing an automatic expiry date, it was presumed that a decision respecting the boundary question would be resolved in that time.

During the next Session of Parliament, on March 21, 1881, the MacDonald Government “resolved” the boundary question and passed “An Act to provide for the extension of the boundaries of the Province of Manitoba” (44 V, c14). The Act extended the eastern boundary of Manitoba to a "line drawn due north from where the westerly boundary of the province of Ontario intersects the boundary dividing Canada from the United States". As far as the Governments of Manitoba and the Dominion were concerned Manitoba’s eastern boundary lay near Port Arthur (Thunder Bay). The Government of Ontario, on the other hand, felt that her boundary did not end until the western most reaches of the Lake of the Woods, near Rat Portage (Kenora). As the Act did not clearly define the boundary in geographical terms, it really resolved nothing, and only added to inter-provincial discord between the Provinces of Manitoba and Ontario.
On July 1, 1881, the Act extending Manitoba’s boundaries was proclaimed in force throughout the new territory and on August 10, 1881, the Manitoba Government stated that “from and after the 15th day of August, 1881, all enactments and provisions of all Acts of the Legislature of the Province of Manitoba should be extended and applied to the territory added to the said Province ... and all ordinances of the Northwest Council theretofore in force in the said added territory should on and after the said date be null and void”.
Within weeks the Province of Manitoba began appointing officials to take up duties in their new territory. On August 26, 1881, Charles McCabe of Rat Portage was made Coroner and Issuer of Marriage Licences for the Province. On the same date Patrick O’Keefe and Daniel R. Cameron, also of Rat Portage, were made Constables, and on September 7, 1881, the County Court and Electoral District of Varennes was established in Rat Portage and a registrar was duly appointed. Also on September 7th the Government of Manitoba repealed the old prohibition on intoxicating liquors that had been in affect in the area and adopted a new permit system.

In a foreshadowing of the troubles to come, it should be noted that the Federal Public Works Act prohibited the sale of intoxicants at or near any Public Work, and conflict was due to arise over the sale of liquor in any area bounded by the new CPR Railway. This was no more evident than in the small town of Rat Portage where the rail line ran right through the heart of the community and keen Dominion Police Officers were routinely on the look-out for illegal liquor activity.

The first such incident occurred when Provincial Constable Patrick O’Keefe seized four barrels of illicit liquor. Instead of destroying the liquor O’Keefe, as Court Bailiff, he apparently took it back to his room for safekeeping. It appears that O’Keefe’s room was within the jurisdiction of a Public Work and he was subsequently arrested by a member of the Dominion Police for breaching the federal prohibition against having liquor in the area. O’Keefe was subsequently brought before a Dominion Magistrate and fined for unlawful possession on intoxicating liquors. After paying the fine O’Keefe waited for the Magistrate to leave the Bench and subsequently arrested him for having the same liquor in his possession without a provincial permit. The Dominion Magistrate was then taken before a Manitoba Magistrate where he was fined $100.00. As a result of the incident O’Keefe was relieved of his duties as a Bailiff because “the proper discharge thereof was incapacitated by his multifarious duties as Constable”.
Ontario was obviously furious with the actions of the Manitoba government in their “territory” and, although Manitoba had already established a County Court, Jail and small police force in Rat Portage, Premier Mowat stated in the Legislature that “I say that it is absolutely necessary that we should go and take possession, that we should assume the duty of enforcing the laws there unless some satisfactory provisional arrangement can be made ...if the people of Ontario have been asleep, I venture to say that they are aroused now and that they will be asleep no more, and that they will not rest until every mile of the awarded territory is surrendered to us” (January 27, 1882, Report of the proceedings in Ontario Legislature). He continued this defiant tone several weeks later when he stated that “it has, in the opinion of this House, become the duty of this Province to assume without further delay the full government and ownership of the territory, without reference to the claims of the Federal Government [who would not] inflict further wrong by offering forcible resistance to the laws or officers of this Province, such laws being the only one in force there” (March 10, Report of the proceedings in Ontario Legislature).
Although Mowat’s Government claimed that they would take possession of the area and that these were the only laws in force in the territory, one of the first major cases to be handled by the Manitoba Police was the murder of Ted Bescoby in Rat Portage several weeks after Mowat’s speech in the House. On June 18, 1882, Manitoba Provincial Constable William Houston was called to the house of Mrs. Ann Bescoby and once inside he found the body of her husband, Ted Bescoby beaten and stabbed to death. Mrs. Bescoby was subsequently arrested and transported to Winnipeg where she faced charges of murder. Although Mrs. Bescoby was later acquitted, what is significant about the case is that Ontario never challenged the authority (or the jurisdiction) of the Manitoba Police or Courts to arrest and try Mrs. Bescoby for murder.

On January 12, 1883, another murder rocked the small town of Rat Portage when the Manitoba Police arrested Thomas Drewes in connection with the death of Patrick Maloney. A week earlier Drewes had struck Maloney over the head with an axe, and when Maloney finally succumbed to his injuries Drewes was arrested and transported to Winnipeg for trial. On March 13, 1883, Drewes was convicted of Manslaughter in Winnipeg. Like the Bescoby case, Ontario never challenged the authority (or the jurisdiction) of the Manitoba Police or Courts to arrest and try Drewes for murder.

As Ontario did not seem to be actively challenging Manitoba’s authority in the area (physically anyway), on July 7, 1883, the Manitoba Government indicated that it would be calling an election shortly in the area for a seat in the Manitoba Legislative Assembly. The date of the election was subsequently set Official Proclamation for September 28, 1883.

Realizing that their claim to the area was quickly slipping away with every unchallenged act by the Manitoba authorities, on July 9, 1883, the Government of Ontario announced that they would be placing six Provincial Constables on duty in Rat Portage, building a jail and appointing a magistrate. On July 16 it was announced that W.D. Lyon had been appointed Stipendiary Magistrate and that Captain Burden would become the Chief of Police with the authority to swear in 20 special constables. The Ontario Government then immediately set about issuing business licenses and liquor licenses to the area residents. The Rat Portage “War”  was about to begin as anyone operating under a Manitoba license was arrested by Ontario constables for liquor violations and anyone operating under an Ontario license was arrested by Manitoba constables.
Prisoners arrested on the order of one magistrate were liberated by the orders of another. Prisoners committed to jail by the authorities of one government were taken out by parties of men who claimed that they were merely upholding the rights of the other. Finally, constables who made arrests on the orders of one magistrate found themselves arrested for doing so by constables acting on the orders of another justice of the peace. The administration of justice at Rat Portage resembled a "Keystone Cops" scenario. As witnessed by Alexander Begg, in his book on the History of the North-West, "one day a Manitoba constable would be arrested for drunkenness by an Ontario constable, the next, Manitoba would reciprocate by arresting an Ontario official, or this dull routine would be enlivened by an assault on a newspaper correspondent, or the apprehension of one of the magistrates on some trumped-up charge, to be followed by a general swearing out of informations and wholesale arrests all around the official circle. While these interesting proceedings commanded the strict attention of the magistrates and police, it may be imagined that the gamblers and whisky pedlars enjoyed almost complete immunity, for it was next to impossible for a constable, zealous as he might be in the discharge of his duty, to observe the actions of evil-doers, while he himself was a fugitive from justice, engaged dodging a warrant for his own arrest".
Another newspaper correspondent at the time also described the events of one day in July 1883 thusly: "Dominion Commissioner McCabe with two policemen, Ontario Magistrate Burdon with twenty-five policemen, and Stipendiary Magistrate Brereton with fifteen policemen acting on behalf of Manitoba, have been arresting each other all day; and the people have been siding, some with one party and some with another, to the imminent danger of the peace and of loss of life."

The arrests reached their height near the end of the summer when Keyes and Montgomery, two Ontario policeman were arrested and detained for illegally selling liquor. They appeared before the Manitoba justice, were convicted and sentenced to jail in Winnipeg. While awaiting transportation to Winnipeg an attempt was made to free the Ontario constables from the Manitoba jail by drawing their officers away from the building by setting fire to the stables behind a local hotel owned by one of the Manitoba Justices. In the melee Ontario Magistrate Burden ordered the arrest of the Manitoba police officers involved in the arrest of his officers, as well as the magistrate who found them guilty.
During the fire Manitoba Constables Dugald McMurphy and Edward Rideout arrested several of the disorderly persons, however on their way to the Manitoba jail they were stopped by members of the Ontario police and arrested and detained in the Ontario jail for making unlawful arrests. The officers were eventually released after paying a $50.00 fine, however in retaliation for the arrests the Manitoba constables swooped down on Ontario liquor license holders and threw them in jail. The following evening, according to the Winnipeg Daily Times, "a crowd numbering one hundred and fifty gathered in front of the jail [and] they battered in the door with a battering ram". The Ontario prisoners were liberated by the mob and on July 28 the jail was burnt to the ground.
After this incident the Manitoba government sent Premier Norquay, Attorney-General Millar, Manitoba Provincial Police Chief Constantine and twenty-five constables on an overnight train to Rat Portage. They arrested three men in connection with the jail break and shipped them back to Winnipeg in leg irons. Charges of kidnapping arose from the Ontario supporters but all the prisoners were committed for trial in Winnipeg — including one Ontario constable who was arrested at the preliminary trial when he tried to give evidence on behalf of the prisoners.

In a subsequent report to his Cabinet, Premier Norquay made it quite clear that he felt Ontario was interfering with the good government of the area as, until that time, "no protest or question of Manitoba's authority to the establishment of the courts, and the administration of civil and criminal justice has ever been made". The actions of the Ontario constables in the jail break clearly (at least to Mr. Norquay) constituted illegal and unacceptable interference into Manitoba affairs, and further that "the Manitoba Government will hold the Ontario Government responsible for any future disturbances which may occur at Rat Portage in consequence of the undue interference of Ontario officials".
To further complicate an already complicated matter, on August 22, 1883, the Ontario Government incorporated Rat Portage as a Township under the laws of Ontario. The Ontario Government further announced that on September 28, like their Manitoba counterparts, they would be holding a provincial election in the area. Holders of mining stocks were allowed to vote in the elections. This threw the voters' lists wide open. The mining boom had collapsed and stock certificates could be obtained for pennies and Ontario supporters complained that the Manitoba government was buying up these stocks and herding “men out from Winnipeg like cattle to vote for the government."
As the elections drew near, disturbances and near riots were being reported in Rat Portage. To deal with the situation the Manitoba government assembled sixty men from the Winnipeg Field Battery and sent them under arms to the area. The Ontario government was furious that Manitoba should send an army  into another province of the Dominion in connection with an election to the legislature of that province. The Premier of Ontario even went as far to state that "Acts such as these would, as between independent states, have been a declaration of war."

The election (in both ridings) took place without incident. Attorney-General J.A. Miller was elected to the Manitoba Legislative Assembly while R.A. Lyon was elected to the Ontario Legislature. Thus, the town of Rat Portage had, in addition to three sets of police officers, two organizations for municipal government, and representation in two provincial legislatures. Nevertheless the district had less of good government and more of lawlessness than any other place in Canada. Even though they were not running against each other, it is interesting to note that Mr. Miller's majority in Rat Portage was 113 votes higher Mr. Lyon’s, leading the Winnipeg Times to suggest that the people of the area had chosen the ruling Manitoba government to govern them and that "he [Mr. Lyon]  should leave".

As the ruling party in Ontario had won their seat in the provincial election, on September 29, 1883, Attorney General Oliver Mowat wrote “all the Acts of the Manitoba Government and officers in civil matters are illegal and they are subject to actions for damages by every person with whom or whose property in the assumed administration of Civil Justice, they interfere. Every man whom they arrest on civil process is arrested wrongfully; every man whom they imprison on civil process is imprisoned wrongfully. The same is the case in regard to their acts in criminal matters ...”

The situation was obviously out of control, and in November matters came to a head. On November 23, 1883, a shopkeeper named Malcolm McQuarrie was charged by a Manitoba policeman for selling liquor without a license. Although he protested that he was allowed to sell the liquor pursuant to an Ontario permit, McQuarrie was ordered to appear before the Manitoba Magistrate. The Ontario police advised McQuarrie not to respond to the summons and stationed a squad of men, some inside and some close to his store, to prevent his arrest by the Manitoba authorities.

On November 28, Attorney General Miller arrived from Winnipeg and ordered the Ontario authorities to give up the wanted man, or have him taken from them by force. The threat did not work and as a result Manitoba’s Chief of Police for Rat Portage, James A. Creighton (a former Winnipeg police officer who resigned in July to take the posting in Rat Portage) and three other officers (including G. Noxon and R. Brethour - also former Winnipeg Police officers) went to McQuarrie's store and arrested him. Creighton was immediately pounced upon by 20 Ontario special constables who arrested him for assaulting McQuarrie. As Creighton was being hauled off to the Ontario jail the three remaining Manitoba officers arrested McQuarrie for failing to attend court. However, as the Manitoba officers were hauling him off to their jail, they too were arrested by a group of Ontario officials and locked up in to the Ontario jail with Creighton. All but Creighton were eventually released on bail by the Ontario magistrate. Creighton was denied bail until his trial. Apparently the Province of Manitoba wanted Creighton held in custody so that they could appeal his case to the Supreme Court and have the boundary question ruled on once and for all.

With the arrest and detention of Creighton the two provincial leaders finally decided that enough was enough and settled on an agreement where each would  appoint a Commissioner of Police for the Territory and as many constables as they thought necessary. They agreed that both town councils would be suspended and that one Municipal Board would be elected until dispute was resolved. Chief Creighton was subsequently released from custody and J.W. Brereton was appointed as the new “Commissioner of Police in the Disputed Territory” and J.R. Foster, J.A. Creighton and D. Sutherland were appointed as his policemen. The matter would be sent to The Judicial Committee of the House of Lords (the Privy Council being the highest law in Canada at that time).

The Privy Council rendered its decision on August 11 1884 when the Council awarded the entire parcel of land to Ontario, agreeing that Ontario's boundary ran in a northwesterly direction along the Mississippi River.

Manitoba remained as it had been, a small "postage stamp" province, and it's final boundaries were not established until 1912. While Manitoba gained her ports on Hudson’s Bay, whether by cruel irony or design, the final eastern most tip of Manitoba’s boundary terminates at a line drawn due north from the confluence of the Mississippi and Ohio Rivers.

The decision of the Judicial Committee of the House of Lords was accepted by the Government of Canada by the Canada (Ontario Boundaries) Act 1889 https://en.wikisource.org/wiki/Canada_(Ontario_Boundary)_Act_1889

Sources:

Anderson, F.W. Outlaws of Manitoba. Saskatoon: Frank Anderson.

Canada (Ontario Boundary) Act, 1889, 52-53 Vict., c. 28 (U.K.) https://en.wikisource.org/wiki/Canada_(Ontario_Boundary)_Act_1889

Murray, Braden. The Ontario - Manitoba Boundary Dispute in Common Ground Stories of Lake of the Woods II, Kenora: Common Ground Committee, 2015

Report of George Burden Commissioner on the Western Part of the Disputed Territory belonging to the Prvince of Ontario Wherin the Dominion or Manitoba Governments Have since 1879, claimed to Exercise Jurisdiction, http://online.canadiana.ca/view/oocihm.02011/1?r=0&s=1