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“Has Begun Ten-Year Term.” Kingston Daily Standard. October 11, 1912. Page 08.

John W. Marshall arrived on Thursday afternoon from Sault Ste-Marie to commence his ten-year term at the penitentiary for assaulting his daughter. The prisoner says he was drunk when the offence was committed.

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“10 Years in Jail Escapee’s Price For 13 Free Days,” The Globe and Mail. October 8, 1948. Page 05.

In 13 days, David Cameron, 24, committed offences which netted him a prison term of 10 years. Magistrate Thomas Elmore sentenced Cameron yesterday for the latter’s armed robbery of a taxi-driver; breaking into a service station; attempted break-in of a second station; carrying an offensive weapon, and escaping from Burwash reformatory.

Cameron was given the 10-year-term for his robbery of taxi-driver John Kusian. Terms on the other charges against Cameron were made concurrent. The 10-year sentence will be consecutive to a three-months term the accused is now serving for a conviction registered in May.

Cameron escaped from Burwash Reformatory in September. The total sentence, which included the concurrent terms, amounted to 17 years.

‘You have had seven previous convictions before all this,’ His Worship told Cameron. ‘It is fortunate that no one has been injured.’

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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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“The institution that looms largest in Canadian penology is
Kingston Penitentiary. It has cast a long shadow. Not only was
it at one time the largest public building in Canada, but for
almost a century it influenced the development of all other Federal
penal institutions. 

Kingston Penitentiary was opened in 1835. Before then,
imprisonment was not the primary weapon in the judicial arsenal against
crime in Canada or England.

Studies of early Canadian court records show that imprisonment
was not then widely used. The cell capacity of the local jails in
Upper Canada in 1827, for example, was under 300 – and this included
cells for those awaiting trial and also those imprisoned for
debt. 12 In the Toronto District (called the Home District), for
example, there were only 143 persons incarcerated in the year 1828 –
well over half of those imprisoned in the entire province – but over
100 of the 143 were there for non payment of debts. Only 29 were
incarcerated for misdemeanours and 13 for felonies. An analysis of
Assize Court Records in Upper Canada between 1792 – 1802 shows only
about half a dozen persons imprisoned out of 36 persons convicted and
it seems that some of those imprisoned were only held until they were
whipped or paid their fines. A study of the London, Ontario,
District Court of the Quarter Sessions of the Peace, 1800-1809 , shows a
similar picture: during that period only one out of the 51 convicted
persons was incarcerated.

The early Ontario legislation – and the same is probably true
of the other colonies in British North America – did not seem to
provide for a greater prison sentence than 2 years to what was called,
a “house of correction”. 

Local jails were declared
“houses of correction” by an Act of 1810. 17
There were many reasons why Kingston Penitentiary was
established, but high on the list was the decline in the use of capital
punishment, coupled with a decreasing use of transportation and
banishment.

A. CAPITAL PUNISHMENT 
There were hundreds of offences at the end of the eighteenth
century in England – and consequently in Canada, because we adopted
English Criminal law that called for capital punishment. Sir
Samuel Romilly, an English reformer, who played a leading role in
Parliament in reducing the number of offences that called for capital
punishment said in 1810  that “there is probably no other
country in the world in which so many and so great a variety of human
actions are punishable with loss of life as in England.” This is not
the place to outline the movement to reduce the number of capital
crimes. Others have done so, tracing the influence of Montesquieu,
Beccaria, Bentham and others. Those influences were felt in
Canada, as in England, and in 1833, at about the time the construction
of Kingston Penitentiary was commenced, an Act was passed designed to limit capital punishment, ‘as had been done in

England, to specific very serious offences, such as treason,
murder, rape, robbery, burglary and arson. 

Even before then, capital punishment for most lesser felonies
had become a dead letter. Many Juries refused to convict, and
even when they did convict, the sentence was usually commuted by the
Crown. Such a commutation was so usual that in 1826 an Act was passed
in Upper Canada providing that if the court was “of opinion,
that under the particular circumstances of the case such offender is a
fit and proper subject to be recommended to the royal mercy, it shall
and may be lawful for the Court” not to pronounce the death sentence. 

Another technique used to soften the harshness of the law was
“benefit of clergy”, originally a technique to protect the
clergy, but later extended to anyone who could read, and still
later to anyone at all. This allowed a convicted felon to plead
his “clergy” and thus escape the penalty of the law. To prevent its
use more than once, a person who pleaded benefit of clergy was burned
or branded in the hand. An Act of 1800 in Upper Canada gave the
Court the power to substitute for “burning in the the hand”, which the
statute said is “often disregarded and ineffectual, and sometimes may
fix a lasting mark of disgrace and infamy on offenders, who might
otherwise become good subjects and profitable members of the
community,” the alternative of “a moderate pecuniary fine” or
whipping.  Benefit of clergy was finally eliminated in England
in 1827 and in Canada in 1833. 

B. TRANSPORTATION

Transportation was widely used in the 18th century, both as a
condition for commuting a death sentence or as a penalty imposed by the
Judge. An English Act of 1717 was the major English statute upon
which, to a great extent, transportation was based. It provided
for transportation for seven years in all cases, except that receivers
of stolen property could be transported for a period of 14 years. This
Act, as D.A. Thomas states, “served as a model for many later
transportation statutes; and it established that preference for the
seven times table which was to be the hallmark of much subsequent
criminal legislation, long after transportation itself had ceased.”
This “ biblical faith in multiples of seven” was as firm in
Canada as in England. Convicts were transported from England to
America, and later to Bermuda and Australia.  

For obvious geographical reasons, a variation on transportation
was used in British North America, that is, banishment. In 1800, Upper
Canada passed a provision stating that “whereas so much of the
said criminal law of England as relates to the transportation of
certain offenders to places beyond the seas, is either inapplicable to
this Province or cannot be carried into execution without great and
manifest inconvenience”, the Court, “instead of the sentence of
transportation, shall order and adjudge that such person be banished
from this Province, for and during the same number of years, or term
for which he or she would be liable by law to be transported.” Early
Upper Canada Assize Court records show that out of 36 convictions
between 1792 and 1802, four persons were banished; one was transported

during that period. Records from the Montreal Prison show the
use of both transportation and banishment. In 1826, no one was hanged
for any crime, but six persons convicted of capital offences were
transported to Bermuda. In 1834, a convicted burglar had his
death sentence commuted, provided he left Lower Canada.

The Upper Canada Select Committee which reported in 1831 on the
expediency of erecting a Penitentiary was not impressed with banishment
as a deterrent, stating:  

“Banishing the province is so nonsensical that
nothing need be said on the subject, it is no
punishment to a rogue to order him to live on the
right bank of the Niagara river instead of the left
and it is cruelly unjust to our neighbours to send
among them thieves, robbers, and burglars, to
exercise their iniquitous callings in a country,
where, not being known, they cannot be guarded
against." 

Banishment and transportation continued to be used – even after
Kingston was built. Banishment was specifically mentioned in an 1837
Upper Canada Act respecting the punishment of Larceny and
another Act of 1837 allowed transportion to be substituted for
banishment. Indeed, as late as the 1870s, Lepine, one of Louis
Riel ’s confederates in the Red River Rebellion of 1869, had his death
sentence commuted to 2 years imprisonment followed by banishment from
Canada and Riel himself was given amnesty on condition of
banishment from Canada for 5 years. Transportation was used as the
punishment for about 150 rebels who took part in the 1837 Rebellions in
Canada, along with about 50 soldiers guilty of desertion in
Canada. The 58 rebels from Lower Canada were transported to New 

South Wales and the 92 from Upper Canada to Tasmania (then Van Dieman’s
Land). Apart from the 1837 rebels, transportation does not
appear to have been widely used in Canada after Kingston Penitentiary
was built, certainly not as compared to England, where between 1840 and
1845 seventeen thousand convicts were transported to Tasmania
alone. Banishment was, it seems, an easier alternative, but we
will have to wait until there is a full Canadian study of the subject
before final conclusions can be drawn. Transportation was discontinued
in England in 1867. 

Other penalties that were possible in this period were the
public humiliation of the pillory (for the arms and the head) or stocks
(for the arms and legs), specifically mentioned in some
statutes.  These punishments were abolished in he United Canadas
in 1841. and fines were also used in both Upper  and Lower Canada.  The "biblical” 39 lashes was usually
administered. Courts at common law had a broad discretion to
impose such alternative penalties for misdemeanours.

C. THE ESTABLISHMENT OF KINGSTON PENITENTIARY

With the decline in the use of capital punishment and
transportation and a disinclination to use banishment, an alternative
was sought. That alternative was Kingston Penitentiary. A Select
Committee, set up in Upper Canada, reported in 1831, recommending that
a Penitentiary be built near Kingston, Ontario:

“It is well protected by an effective Garrison and
extensive fortifications – the situation is healthy,
and land can be purchased at a moderate price. In
addition to these recommendations, the materials for
building are abundant, and of the most substantial
kind, and the inexhaustible Quarries of stone, which
exist in every direction within the township of
Kingston, will afford convicts that description of
employment which has been found by actual experiment
to be the most useful in Institutions such as your
committee recommend.”

The Penitentiary was to be so harsh that it would deter people
from crime, and, possibly, make them repent for their sins.
Committee stated: 

“A Penitentiary, as its name imports, should be a
place to lead a man to repent of his sins and amend
his life, and if it has that effect, so much the
better, as the cause of religion gains by it, but it
is quite enough for the purposes of the public if the
punishment is so terrible that the dread of a
repetition of it deter him from crime, or his
description of it, others. It should therefore be a
place which by every means not cruel and not
affecting the health of the offender shall be rendered
so irksome and so terrible that during his after life
he may dread nothing so much as a repetition of the
punishment, and, if possible, that he should prefer
death to such a contingency. This can all be done by
hard labor and privations and not only without
expense to the province, but possibly bringing it a
revenue." 

The planners of Kingston had a number of American models to
choose from, principally the Auburn model (a penitentiary in the Finger
Lakes District of New York), which was based on complete silence, with
solitary confinement at night and collective work during the day. The
alternative system at the time was the Philadelphia system, which

required the inmate to sleep, eat and work in his cell, also in
complete silence. The Auburn system was chosen. The
deputy-keeper of Auburn, who was hired to help design and run Kingston,
said, as the plans were being made for Kingston: "the particularly
excellent and distinguishing characteristic of the Auburn system is
non-intercourse among the convicts, while at the same time, they are
employed by day, in active useful labour. This is the grand foundation
on which rests the whole fabric of Prison discipline.”

D. PENALTY STRUCTURE

The penalty structures in the years following the decision to
establish Kingston Penitentiary are complex. We have already seen that
by the 1833 Act, some specific offences such , as murder, rape and
robbery continued to be capital offences. The same Act provided that
for other felonies not dealt with by specific provisions the convicted
person could be banished or transported for seven years or more.  Imprisonment was now also possible, for up to 14 years, with hard
labour or solitary confinement. Kingston Penitentiary had still
not been completed and so these potentially harsh sentences could be
served in the common jail. Returning from banishment or transportation
could lead to imprisonment for life. This potential use of
imprisonment was in dramatic contrast to its use in previous decades. 

The potential 14 year period was, however, in 1837, reduced to
seven years for most non-capital felonies. The maximum
penitentiary term for felonies such as perjury, fraud, and receiving
stolen goods was now to be seven years. If the conviction took place at Quarter Sessions rather than at Assizes, the maximum penitentiary
term was to be two years. The important offence of larceny
also called for a maximum two year penitentiary term; and
imprisonment for larceny could be followed by banishment.“ There
were, of course, other specific provisions for particular offences.
Unlawful drilling, for example, could result in up to 2 years in the
Penitentiary.” So, the Penitentiary was not at first confined
solely to long-serving prisoners. 

In 1841, however, shortly after the establishment of the United
Provinces of Upper and Lower Canada, a dramatic change was introduced
for Kingston Penitentiary, now to serve as the penitentiary for both
Lower and Upper Canada. The Penitentiary was now, in general,
for those serving a sentence of at least seven years. Local jails
were to be used for those serving up to two years, the first important
statute  with the 2 year period as the dividing line between
penitentiaries and prisons. The sentencing judge had to choose between
the maximum of two years in the local jail or seven years minimum in
the penitentiary for a recidivist or in any case where a
specific penalty was not provided. A number of major Acts were
passed in that year following this pattern, such as an Act relating to
larceny and other offences, an Act relating to Malicious
Injuries to Property, and an Act relating to Offences against
the Person.  

The following year, however, the philosophy set out in the 1841
Act was changed. The judges were now no longer forced to make the
harsh choice demanded by the previous Act. The 1842 Act, entitled “An Act for Better Proportioning the Punishment to the Offence,” reduced
the minimum penitentiary term from seven years to three years.  Now the choice for the judge was between up to two years in the local
jail and three years or more in the penitentiary. 

The 1842 Act also provided that an offender could receive a
penitentiary term equal to “any term for which he might have been
transported beyond Seas”. So, seven years transportation
equalled seven years imprisonment. When England passed a similar
measure ten years later, they substituted a proportionately lesser
number of years imprisonment for transportation. The English Penal
Servitude Act of 1853 substituted four years penal servitude
where seven years transportation had been provided. However,
the second English Penal Servitude Act of 1857,provided that the term
for imprisonment should be identical to the term for
transportation, as Canada had already done. Transportation was
always necessarily for long periods and so the equation of penitentiary
terms with transportation necessarily meant long terms of
imprisonment. 

There were later specific variations in the penalties for
specific offences. There was, therefore, no one formula. For example,
an 1847 Act dealing with Malicious Injury to Persons provided
that the judge had to choose between a seven year minimum term in the
penitentiary and three years maximum in the jail. Whipping was also
provided for this offence for males under 18. An 1848 Act on
Counterfeiting, to take another example, provided that the offender
could receive up to four years in the penitentiary.

It is hard to get a clear picture of the penalty structure for
Canada in the 1840s. Canada could not follow England’s lead as the
penitentiary system in Canada had in most respects preceded the English
system. Canada did not have the usual comfort of following what
England had done. Perhaps this is just as well, because the penalty
structure that did emerge in England, to use the words of a recent Home
Office Report, “was devoid of any appearance of system or
principle.” The variations and fluctuations in the legislation
we have looked at reflect , no doubt, the not unexpected uncertainty
and experimentation as Canada moved from capital punishment,
transportation and banishment to incarceration.”

– Martin Friedland, “SENTENCING STRUCTURE IN CANADA: HISTORICAL PERSPECTIVES.”

Research
Reports of the
Canadian
Sentencing
Commission.
Toronto: University of Toronto
1988 pp. 3-13

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THE ISSUE OF OLDER BOYS

In 1927, The Boys’ Farm considered another strategy for increasing its population:

The Secretary [Owen Dawson] stated that The Boys’ Farm might enlarge its sphere of usefulness if the juvenile age were increased from 16 to 18 years, as provided for in an amendment to the Juvenile Delinquents Act. The President [Beatty] felt that the matter might be taken up with the Federal Government some time in the near future (March 31, 1927).

Reform schools in other provinces had already opposed the policy of extending the jurisdiction of the juvenile court to include boys up to the age of 18 (rather than 16) and continued to oppose the policy in 1929 when the federal government revised the Juvenile Delinquents Act. The issue pitted the interests of existing reform schools against the zeal of juvenile justice reformers who
wished to extend childhood status to older juveniles.

In order to understand why reform schools elsewhere in Canada resisted the age extension policy and why The Boys’ Farm temporarily considered its advantages, it is necessary to look at the effects of juvenile court practices on the populations of reform schools.  

The Montreal juvenile court’s extensive use of probation radically reduced the number of children committed to reform schools during the early 1920s. However, many children originally placed on probation got into trouble again and were older when judges subsequently decided to send them to reform schools. The court’s practice of probation, in other words, eventually produced an upturn in the number of children committed to reform schools. And because these
children were older (often having failed more than once on probation), the court’s practice of committing children only after they had spent time on probation resulted in older populations at reform schools.

While the juvenile court’s jurisdiction was limited to children under 16, the practice of probation in combination with the court’s right to supervise the children who appeared before it up to the age of 21 made it possible for the court to commit children who were 16 years and older to reform schools:

The authority of the juvenile court to impose sanctions does not end with the original disposition of the child. Provision is made in the Act to bring the child back before the court at any time before he has reached the age of twenty-one years. This is extraordinary since the maximum age for original jurisdiction is sixteen or eighteen years of age …. This provision is often invoked when a child has been placed on probation and has subsequently breached one of the conditions of supervision (Wilson, 1982:194).

The aging of reform school populations was evident at The Boys’ Farm during the mid-1930s. At that time, the jurisdiction of the Montreal juvenile court was still limited to boys under the age of 16; yet Boys’ Farm records for boys discharged during the late 1930s show that 23 out of 143 boys were 17 and older on their sentencing date. Thirty-three more were aged 16, though they may have committed their offense prior to their 16th birthday. The aging of reform school populations occurred earlier in provinces such as Ontario where
well-developed probation services were in place before the juvenile court was created. When the federal Minister of Justice, Ernest Lapointe, (at the urging of the Canadian Council of Child Welfare and other juvenile justice reformers) introduced an amendment to the federal Juvenile Delinquents Act in 1921 which would raise the age of juveniles from 16 to 18, Ontario’s reform schools were in a different position to appreciate its consequences than were Quebec’s reform schools. The Boys’ Farm could appreciate the potential advantages of an age extension as a way of reversing the decline in its population (as the board’s discussion of the amendment in 1927). Ontario’s reform schools, on the other hand, saw the age extension as a policy that would simply exaggerate the process already at work: namely, the commitment to their institutions of an increasingly older group of repeat offenders. Their position was that the age extension should wait until new and more prison-like reform schools were created specifically for this older group. (The borstal schools in England were favored as a model.) Their resistance to the amendment successfully blocked the proposed mandatory extension of age. Instead, the amendment granted discretionary authority to provinces to extend the age from 16 to 18..

The age extension continued to pit the interests of reform schools against those of juvenile justice reformers. In 1938, The Royal Commission to Investigate the Penal System of Canada completed two years of hearings and investigations into the Canadian penitentiary system, including the system for dealing with juvenile offenders. The Archambault Report (named after the chairman of the commission) said:

Many conflicting representations were made to the Commission as to whether the age limit of those to come under the jurisdiction of the juvenile courts should be raised throughout Canada to include young persons below the age of eighteen years. Your Commissioners are definitely of the opinion that the jurisdiction of the juvenile courts should be limited to children below the age of sixteen years …. The problem of detention homes and training schools would be clearly aggravated, and, in our opinion, has been aggravated (in British Columbia and Manitoba) where the age limit has been increased.

By this time, The Boys’ Farm was enjoying a population boom. Its superintendent, Major Willcock, told the administration committee:

A great many more boys were appearing repeatedly in the Juvenile Court before being sent to The Farm, resulting in boys coming to the School at the ages of 15 or 16 and generally for longer terms. It was suggested that more boys might be sent by the Juvenile Court and for shorter terms. Mr. Dawson undertook to take the matter up with the Juvenile Court authorities (Administration Committee minutes, November 24, 1938). 

At this point, The Boys’ Farm administrators were beginning to perceive older boys sent for longer terms as “hard core” and more troublesome residents. They began to favor shorter terms, therefore, in the hope that the court would send younger and less troublesome boys. When Quebec extended the juvenile age from 16 to 18 in 1942, The Boys’ Farm was already crowded. The influx of older boys over the next several years, amplified by the court’s practice of turning to reform school commitments during wartime, added to the internal problems of control that already existed as a result of overcrowding and an older population.

The number of runaways rose (and, incidentally, divided the board on the issue of whether to pursue runaway boys who wished to enlist in the army); the use of corporal punishment continued to rise; and concern mounted over the exposure of younger boys to the influence of older boys more experienced with crime. When the Second World War ended and reform school commitments fell to pre-war levels, The Boys’ Farm administrators saw a second, and more fundamental, consequence of the age extension. Because the court sent older boys to The Boys’ Farm (and to the other reform schools for French-speaking children), it was increasingly reluctant to commit younger boys there, where they would be exposed to the influence of older boys. By 1948, the population at The Boys’ Farm had dwindled to about 100 boys, and it was fast becoming the last resort for the hard-core, older offender that it had originally set out not to be. Moreover, The Boys’ Farm had long since come to appreciate what Ontario’s reform schools appreciated in 1921: namely, that as an increasingly older group of juveniles were defined as children rather than as adults, and sent to reform schools rather than to adult jails and penitentiaries, existing reform schools would have to become juvenile prisons unless or until newer juvenile prisons for this older group were created. Even then, reform schools, if they were to survive, would have to lay new claim to the younger, “normal delinquent” boys they had lost and would continue to lose as the result of probation, foster homes, short-term sentences, and other decarcerating measures.

– Prue Rains, McGill University, “Juvenile Justice and the Boys’ Farm: Surviving A Court-Created Population Crisis, 1909-1948.” Social Problems, Vol. 31, No. 5, June 1984. pp. 509-12

Photographs are both Conrad Poirier, “Boy’s Farm and Training School, Shawbridge.” 1947-11, P48.S1.P15234 & P48.S1.P15221, BAnQ. 

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THE INDEFINITE SENTENCE
The federal Juvenile Delinquents Act (1908) did not mention the indefinite sentence directly; nor did the detailed commentaries on the federal legislation by its authors and promoters. And since the Quebec legislation (1910) simply proclaimed the federal act as relevant to Quebec and authorized the creation of a juvenile court in Montreal, it also did not mention the indefinite sentence directly. But definite sentences were not mentioned either. Juvenile justice reformers, and the text of the legislation itself, so clearly favored methods
for dealing with children other than incarceration that the commitment of children to reform schools was itself scarcely mentioned. The indefinite sentence was, nevertheless, a core tenet in the movement to reform children rather than to punish them. It was implicit in the discretionary powers and wardship hold over children given to the juvenile court by the act, and in the law’s provision that the court should not authorize a child’s release without a recommendation from
the reform school. This provision was intended to permit reform schools to release children when successfully reformed rather than at some arbitrary date; fully implemented, this provision would have transferred control over the length of children’s sentences from the juvenile court to the reform school.

Judges at the Montreal juvenile court were reluctant to sentence children to indefinite terms. In 1922, Superintendent Barss of The Boys’ Farm observed at a board meeting that the indefinite sentence was not being used by judges at the Montreal juvenile court; and in 1924, the secretary-treasurer, Owen Dawson, reported that the newly appointed judge of the Montreal court was “not a believer in the Indefinite Sentence as provided by the Juvenile Delinquents Act” (January
31, 1924). Judges at the Montreal court were not only trained as lawyers but still worked in courts other than the juvenile court; they continued to adhere to an older model of justice, and were reluctant to turn their control of sentence length over to reform schools.

The Boys’ Farm began to lobby for the indefinite sentence in 1922. In March, E. W. Beatty, president of The Boys’ Farm, reported to the board that: 

He had gone into the question of the indefinite sentence with [premier] Taschereau, the Provincial Secretary, and Sir Lomer Gouin [former premier], all of whom were in favor of the plan (March 8, 1922).’

It may seem odd that the board of directors first approached executive rather than legal or judicial authorities about implementing indefinite sentences. Eventually the board did seek a legal interpretation of the Juvenile
Delinquents Act (1908). Because the act was federal legislation enacted provincially by executive proclamation, however, there was some ambiguity about which authority was responsible for interpretation of the act. The board’s initial approach also reflected its own contacts and prior experience with provincial authorities about institutional matters. These were customarily handled by the provincial secretary. The Boy’s Farm favored indefinite sentences for two reasons: to increase its control over troublesome inmates; and to counter the effects of short sentences on its population [and thus its revenue].

INTERNAL CONTROL
In part, The Boys’ Farm’s preference for the indefinite sentence was an extension of its earlier efforts to gain control over the decision to release or parole. In the early 1900s, all reform schools in Quebec objected to government pardons as a form of early release, arguing that early release (parole) should depend on good conduct alone. Definite sentences limited the effectiveness of
parole as a device for maintaining internal control; in fact, the most troublesome boys, by definition, were the most likely to be still at The Boys’ Farm when their sentences expired. In the early 1920s, The Boys’ Farm made persistent and largely unsuccessful attempts to persuade the provincial secretary to extend the sentences of boys “unfit for discharge.” For example:

The Superintendent submitted a list of 14 boys whose time expires before the close of this year and who were entirely unfit for discharge. He recommended that the provincial Secretary be requested to extend their terms. The President [Beatty] reported that he had an appointment with the Hon. Mr. David [the provincial secretary] for the following morning, when he would request him to grant a temporary extension of the terms of the boys referred to until their cases could be more carefully studied (June 21, 1922).

Four months later, Beatty reported:

The request for the extension of the terms of the 14 boys at The Farm had been refused by the Provincial Secretary. The question had [subsequently] been a matter of serious discussion between himself [Beatty] and [Taschereau] and the Hon. Walter Mitchell [provincial treasurer]. The [premier] requested that in future all such matters be taken up direct with him (October 26, 1922).

Because The Boys’ Farm only occasionally succeeded in having the sentences of individual boys extended, it turned to the indefinite sentence as a method for gaining control over the release, and therefore conduct, of its more troublesome boys.

INCREASED POPULATION
The population at The Boys’ Farm could be increased either by more court commitments or by longer sentences. Attempts by The Boys’ Farm to lengthen the sentences of boys it regarded unfit for discharge addressed the issue of population as well as the issue of internal control. But The Boys’ Farm was concerned with the length of sentences for another reason, too. The Montreal juvenile court was increasingly implementing the principles of the juvenile justice movement.

Not only was it placing more boys on probation rather than committing them to reform schools, but it was also reducing sentences for those it did commit from the previous three-to-five years down to two years or less. Shorter sentences added to the population troubles created by the greater use of probation. While the board of directors could not reasonably hope to increase the number of boys committed to The Boys’ Farm by opposing the use of probation, it could at least hope to increase the population by invoking the Juvenile Delinquents Act of 1908 to gain control over the lengths of their sentences.

Faced with continuing resistance on the part of judges to the use of the indefinite sentence, The Boys’ Farm planned a legal challenge to the definite sentence in 1924. Walter Mitchell, provincial treasurer under both Gouin and Taschereau and, by this time, a member of the board of directors at The Boys’ Farm, offered to seek the legal opinion of his former law partner, N. K. Laflamme, and to take the matter up with Quebec’s attorney general. In February, 1924, Laflamme reported to the board that he:

… believed that the Judge of the Juvenile Court had the option of giving an indefinite sentence under the Juvenile Delinquents Act, or a definite sentence of not less than two or more than five years under the old Prisons and Reformatories Act. Mr. Laflamme stated that, in his opinion, any definite term of less than two years was illegal (February 28, 1924).

The board agreed to take the matter up with the attorney general after the legislative session ended in Quebec, and once a “parole board” had been created within The Boys’ Farm “to deal with the discharge of committed cases” (March 27, 1924). 

The Boys’ Farm eventually established procedures for allocating parole and a committee that reviewed boys for parole, but not until the 1940s when it had acquired control over the release date of boys (even then, the control was within the limit set by the definite sentence). The plan to establish a “parole board” in 1924, therefore, was something of a rhetorical device designed to express a form of control over sentences that The Boys’ Farm hoped for but did not have.

Four months later the board planned to convey the legal opinion it had solicited to the Montreal court:

The question of short-term sentences was discussed and it was agreed to admit boys from the Juvenile Court for short terms in the meantime. The Secretary was asked to convey the opinion of Mr. N. K. Laflamme in this connection to the Juvenile Court authorities and if no satisfactory conclusion was reached to take the matter up with the Hon. Walter Mitchell (June 26, 1924).

In May, 1925, the board took action to resist admission of boys for terms shorter than one year: The question of admitting short-term cases from the Juvenile Court was discussed, and it was decided to request the Judge of the Court not to send boys for a shorter period than one year (May 28, 1925). These shorter sentences also decreased the populations of reform schools because they were served in detention homes rather than reform schools. Schlossman observes: “While the juvenile court sent relatively few children to reformatories, it held large numbers on short-term sentences in the detention center before, during, and sometimes after trial.” In the absence of adequate detention facilities, the Montreal court held both French-speaking and English-speaking children at the Montreal Reformatory (the French reform school for boys). The large number of children held there “provisionally for inquiry” suggests that during the 1920s the Montreal court used short-term detention in much the same way-that is, as an alternative to outright commitment to reform schools.

In May, 1925, the board took action to resist admission of boys for terms shorter than one year:

The question of admitting short-term cases from the Juvenile Court was discussed, and it was decided to request the Judge of the Court not to send boys for a shorter period than one year (May 28, 1925).

The Boys’ Farm was not successful in convincing the court to use the indefinite sentence, but it did persuade the court to extend definite sentences. Records for boys discharged from May, 1939, to May, 1941, (and who were therefore sentenced in the mid-1930s) show that boys were sentenced for definite rather than indefinite terms. None of the 143 sentences, however, were for less than two years and most were for three, four, and five years (the mean sentence was 3.67 years). The Boys’ Farm appears, therefore, to have been successful in temporarily allaying the threat of short sentences.“ And it was successful in acquiring recognition of its right to be consulted by the court regarding the actual release date of sentenced boys:

Colonel Magee [a board member] reported that he had had a very satisfactory interview with Judge Lacroix [of the Juvenile Court] in reference to the releasing of the Wilson boys [two brothers]. The Judge has promised that he would not release any more boys without first asking for a report from the Farm management (October 30, 1924).

By 1930, the population crisis was over at The Boys’ Farm and the province’s other reform schools (the largest of these were the two French reform schools in Montreal, also supplied by the Montreal juvenile court). From 1930 to 1945, the population of the province’s reform schools reached record levels; at The Boys’ Farm it reached more than 200. While longer sentences contributed to the rise, increased court commitments were the major factor. In 1927, the number of court commitments to The Boys’ Farm had risen to pre-1920 levels and continued to climb. The population crisis had passed, but not primarily as the result of lengthened sentences.

– Prue Rains, McGill University, “Juvenile Justice and the Boys’ Farm: Surviving A Court-Created Population Crisis, 1909-1948.” Social Problems, Vol. 31, No. 5, June 1984. pp. 505-09

Photographs are both Conrad Poirier, “Boy’s Farm and Training School, Shawbridge.” 1947-11, P48.S1.P15232 & P48.S1.P15235, BAnQ. 

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