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“I have the honor to report to Your Excellency that I have visited twenty-two
Gaols in Canada West, where I have found little or no discipline or classification of
prisoners. In the construction of most of the Gaols in Canada West, the health of
the prisoners has rarely received a thought; it is true that the highest spot has often
been selected as a site for the Court House and Gaol, yet it is lamentable to see the
cells partly under ground and badly ventilated. In many Gaols, the effluvia from the
water closet, where there is no sewer, can be felt all over the Gaol; add to that, a
number of persons sleeping together in warm weather, or yet in cold weather, where
every crevice is carefully shut, and it will create no surprise to see prisoners affected
with disease that sends them to an early grave.

Hamilton Gaol is situated in one of the most wealthy Counties in the Province;
in the year 1851, it had four hundred and nineteen prisoners within its walls. The
cells are eight feet nine inches by nine feet nine inches, partly under ground, with
one small loop-hole for light and air; the door opens into a dark passage; Six human
beings are incarcerated in each of these cells night and day, with a tub in place of a
water-closet. The prisoners complain of vermin; it is impossible to be otherwise. 

The Sheriff attends at Court House daily, but does not visit prisoners, unless specially, called upon to do so, being in a state of disgust with the condition of the Gaol, and wholly ‘unable to ameliorate the condition of the prisoners, either morally or
“physically.” There is no yard to give the prisoners air or exercise, hence, a three
months’ confinement in such a Gaol, must shorten life more than a sentence of three
years in the Provincial Penitentiary, where they have every care, with pure air and exercise. In a moral point of view, such a prison is equally ruinous, as there is no classification,
except the females being kept in a cell by themselves, where they freely converse
with the male prisoners. … I found the male and
female, the sane and insane, the tried and untried, the young and the old, the black
and the white, all congregated together: throughout the day, having the range of the
Gaol, where any amount of criminality might be carried on.”

– Andrew Dickinson, Inspector, Provincial Penitentiary, “REPORT
OF ONE OF THE
INSPECTORS OF GAOLS
For CANADA WEST.”

16 Victoria. Appendix (H.H.), September 11 1852, from Appendix to the Eleventh Volume of the Journal of the Legislative Assembly of the Province of Canada, Session 1852-1853. 

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“From at least the mid-forties Kingston Penitentiary was under
attack by the Press, particularly by the Globe and its editor, George
Brown. “It appears from statements which are not contradicted”, wrote
the Globe in November, 1846, “that from 200 to 300 punishments
are inflicted on the Prisoners of the Penitentiary every month.” In
August, 1847, the Globe talked of the “most barbarous acts” charged
against the managers of the Penitentiary and in March, 1848, it
referred to Kingston as “a den of cruelty, where the most savage
treatment is given to the unfortunate inmates, who must emerge from
durance not subdued but infuriated, without one ray of light infused
into their minds to guide their future path but confirmed and
strengthened in their bad habits by the treatment they experience at
the hand of authority.” Not surprisingly, a Royal commission
was established in 1848 to look into the administration of Kingston
Penitentiary. The Commission is known by the name of its secretary and
driving force, George Brown of the Globe

A. THE BROWN REPORT 
Again not surprisingly, the Commission supported the
allegations made in the Globe. The Report stated: 

As many as twenty, thirty, and even forty men,
have been flogged in one morning, the majority of
them for offences of the most trifling character; and
the truth of the complaint resting solely on the
word of a Guard or Keeper, subject at best to all the frailties of other men. The exasperation which such a
system could only produce, must have bid defiance to
all hope of reform. To see crowds of full grown men,
day after day, and year after year, stripped and
lashed in the presence of four or five hundred
persons, because they whispered to their neighbour, or
lifted their eyes to the face of a passerby, or
laughed at some passing occurrence, must have
obliterated from the minds of the unhappy men all
perception of moral guilt, and thoroughly brutalized
their feelings. 

The Commission produced a Second Report in which they
looked at ways to improve the Peniteniary System. As the 1831
Committee had done, they visited American institutions, such as the
Mount Pleasant State Prison at Sing-Sing on the Hudson River in New
York, which followed the Auburn Congregate system, and the Cherry Hill
Penitentiary in Philadelphia, the pioneer institution built on the
so-called separate system. The Brown Commission spent nearly a week
“devoted to a minute inspection of Cherry Hill, and to personal
discussion of the merits of the two great systems of discipline with
the Warden.” They came away impressed with the separate system, an
impression not dispelled by a quick visit to Auburn. Their main
conclusion was “to recommend the combination of the two systems, the
Separate and the Congregate, in the future management of the Prison”.
They went on to say: 

“Were a new Penitentiary about to be erected, we
might have been in favour of a somewhat different
plan: but with so costly and commodious an
establishment nearly completed, we are of opinion
that the most advisable course is to continue the
Congregate system as the main principle, and to
engraft on it the ameliorating influences of individual separation. We recommend to Your
Excellency, the erection of a sufficient number of
cells to apply the Separate system to every
newly-arrived Convict; while so confined, the Convict
to be furnished with secular instruction and labour,
and to be earnestly dealt with by the Chaplain and
Warden. The length of this ordeal, we think, should
be left to the discretion of the Prison authorities,
but should in no case exceed six months; and the
termination of it might in many cases where
mitigating circumstances existed, it is to be hoped,
offer a favourable opportunity of exercising the
Royal Mercy with benefit to society and to the
Criminal.” 

They recommended "that fifty separate cells shall be the number at
first to be erected, and that they be built with all convenient
speed." 

This was their main conclusion. They also had examined the use
of a system of rewards, a technique we will explore shortly: 

"Much has been written in favour of a graduation in
the severity of the Penitentiary discipline, founded
on the conduct of the Convict during his confinement.
It has been proposed as an incentive to good
behaviour…. Exemplary obedience would thus
purchase privileges denied to those who either
occasionally or frequently infringed them." 

The Commission did not think much of the rewards technique: 

"This would open a wide door to favoritism, and even
should the strictest impartiality be shown in the
grading of the Convicts, it would be difficult to
make them believe that such was the case… All
Convicts should as far as possible be placed on the
footing of perfect equality; each should know what he
has to expect, and his rights and obligations should
be strictly defined. If he break the Prison rules,  he should also have the quantum of punishment to
which he becomes subject." 

"It is well known,” the Commission said, “that the worst men commonly
make the best conducted Convicts.” The Commission did not oppose the
use of solitary confinement or corporal punishment, they simply wanted
those punishments used more discriminately:

 "There are, however, a few characters in most
prisons…who are only to be ruled by bodily fear.
On such persons and for such offences as seriously
involve the discipline of the prison, such as
assaults on the officers, it will undoubtedly be a
matter of necessity, sometimes, to inflict the severe
punishment of the dark cell, or failing that, of the
cat ….“ 

The Brown Commission Report was, for the most part, implemented
by the Government. In 1851, Canada passed a new "Act for the Better
Management of the Provincial Penitentiary.It provided that there should be "erected within the…Penitentiary…not exceeding
fifty cells with a workshop attached to each cell, adapted to carry out
the ‘separate’ or ‘solitary’ system of discipline….” The
Penitentiary would still be based on the silent system.“ A
system of Inspectors was established to help prevent the type of
arbitrary punishment that the Commission had found. The Warden was
given a number of duties, including, "to see that justice, kindness and
morality shall prevail in the administration of every department of the
prison….” The inspectors had to authorize the use of corporal
punishment by the Warden, the legislation stating: “the Warden shall  have recourse to it only in extreme cases, and shall not inflict more
than seventy-five lashes for any one offence.” So the regime,
which was still based on the silent system, had not changed
dramatically. 

Another Act which came about as a result of the Brown
Commission was one to deal with the Young Offender. The Commission had
recommended “the immediate erection of one or more Houses of Refuge for
the reformation of juvenile delinquents.” In 1857, Canada passed “An
Act for Establishing Prisons for Young Offenders which permitted
the erection of "two Buildings, one to be situated in Lower Canada, and
one in Upper Canada,” for offenders under 21. The sentence of the
Court, which would be anywhere from six months to five years, could be
served in the Reformatory. 

B. SENTENCING STRUCTURE UP TO CONFEDERATION

Sentencing structure from the middle of the century to
Confederation shows no discernible coherent structure. The Acts show a
wide variety of possible penalties. They do, however, show frequent
use of minimum penalties, and they often show higher penalties for
subsequent offences. They also show a great amount of judicial
discretion.

 An Act in 1855, for example, provided up to two years
for having instruments for housebreaking, up to three years for
forging tickets, anywhere from two to five years for unlawfully
administering chloroform, and anywhere from three to seven years
for causing of railway accidents.  

Statutes in 1859 bring together sections from earlier statutes
and similarly show a wide variation in possible penalties. Offences
against the State were consolidated into one Act in 1859. In
that Act, counterfeiting coins could lead to a four year
penalty, but uttering such a coin was punishable with a penalty
from three to fourteen years. A subsequent offence for
uttering brought a penalty of from 14 years to life. Tools for counterfeiting coins would result in a sentence of from 2 to
7 years, with a subsequent offence bringing a penalty of from 2 to 14
years. 

The Offences Against the Person Consolidation of the same
year also shows a great hodge-podge of sections. Some, such as
murder and rape, provide the death penalty. Having carnal knowledge of
a girl under 10 was also punished by death, but if over 10, then the
punishment was in the complete discretion of the court. An
accessory after the fact to murder was punishable with a term anywhere
from 0 to life. The penalty for manslaughter was anywhere from
0 to life, or a fine at the discretion of the court.  Administering drugs carried a penalty of 2 to 5 years.  Carrying certain weapons called for a fine of between $10 and
$40. In some cases the Court had to choose, as in the old 1841
legislation, between under 2 years and over 7 years.  The penalties in the Postal Service Act of 1867 also
show a wide range for various offences, including 0 to 7 years; 2 to 7
years; 3 to 5 years; not less than 3 years; and 5 years to life. 

The same type of seemingly irrational penalty structures were
found in England. The Criminal Law Commissioners who sat
between 1833 and 1849 had tried to come to grips with this issue.” 

– Martin Friedland, “SENTENCING STRUCTURE IN CANADA: HISTORICAL PERSPECTIVES.” Research Reports of the Canadian Sentencing Commission. Toronto: University of Toronto 1988 pp. 13-20

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