Posts Tagged ‘lower canada’

“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

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. 


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

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.


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

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.”


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

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.”


Reports of the
Toronto: University of Toronto
1988 pp. 3-13

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