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Posts Tagged ‘penal sanction’

“In keeping with these developments, probationers have been subject  to a growing range of penal controls. During the 1950s, probation involved the offender occasionally meeting with, and reporting to, his or her probation officer, and being bound by the general conditions of probation orders, as well as, no doubt, being subject to a variety of informal local controls. Today, however, many probationers, in addition to the purview and surveillance of a probation officer, and through the more specific and specialized community-correctional conditions of probation orders, encounter members of the Salvation Army and John Howard and Elizabeth Fry societies, as well as the numerous church, business, native, and other community groups and volunteers charged with penal processing. It is difficult to conceive that the growth of the Ministry of Correctional Services’ community satellites has not entailed the evolution of increasingly pervasive models of penal control.
….
Ominous tendencies are…evident in the case of community service orders. They, too, increase the range and intensity of formal conditions of probation. Yet the program has ideological appeal across the political spectrum. Within corrections, it enjoys the support of judges, correctional officials, and numerous private-sector groups who have become involved in the provision of community-service-order programs in Ontario. Much of the appeal of community service orders derives from their perceived reparative effects. But, as Axon has observed in her study of community service orders in Canada, what Community [Service] is, in fact, is unpaid work done by the offender in the community. Whether or not this unpaid labour constitutes reparation is another matter entirely.’

The appeal of community service orders – as with community corrections more generally – also derives from their emphasis on community. As Stanley Cohen has observed, the word ‘community’ is not only ‘rich in symbolic power, but it lacks any negative connotations.’ Different, competing, and even contradictory assumptions can be brought together under the ambiguous concept of community. Leaving aside the problematic issue of how ‘community’ should be define, the extent to which offenders are members of the community that benefits from their own unpaid labour is doubtful. Studies of community service orders in Ontario, and in Canada more generally, suggest that those subject to the program are often young, unemployed males, who are first-time offenders, do not belong to clubs or organizations, and have had ‘poor education with few prospects of obtaining anything but ‘dead end’ jobs” (Axon). What would be the benefit to these offenders, it seems, are better opportunities to become members of the community’s paid labour force, rather than being subjected to forced labour.

At the same time, one segment of the wider community has clearly benefited from, and been remunerated through, community service orders: private-sector groups have derived financial as well as ideological benefits from the development of programs. They pressured the Ministry of Correctional Services to develop community-service-order programs and to make contracts with them for operating the programs. Following from this, community service orders have more to provide jobs for those affiliated with the John Howard Society, the Elizabeth Fry Society, the Salvation Army, and other groups, than for offenders. In the process, the incomes of these groups increased. They and their quasi-civil service staff benefited from the perception that community service orders ‘helped humanize the correctional system while providing them with worthwhile jobs (Menzies). In a variety of ways, and similarly to the situation of community-service-order programs elsewhere, ‘in reality, the service which the offender gives is not to an abstract ‘community’ but rather to those agencies and individuals who are willing to be involved with offenders’. (Axon) Overall, community service orders strengthen the net of penal control not only by formally extending probation conditions, but also in expanding the range of non-state agencies becoming involved in – an financially dependent on – the exercise of control.”

– Maeve W. McMahon, The Persistent Prison? Rethinking Decarceration and Penal Reform. Toronto: University of Toronto Press, 1992. pp. 120-122.

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1) “THE MYSTERY OF DEGENERACY IN CIVILISATION” AND “THE MYSTERY OF
RICHTLESSNESS IN THE STATE”

Feuerbach, we know, conceived the Christian ideas of the Incarnation, the Trinity, Immortality, etc., as
the mystery of the Incarnation, the mystery of the Trinity, the mystery of Immortality. Herr Szeliga
conceives all present world conditions as mysteries. But whereas Feuerbach disclosed real mysteries,

Herr Szeliga makes mysteries out of real trivialities. His art is not that of disclosing what is hidden, but of
hiding what is disclosed. 

Thus he proclaims as mysteries degeneracy (criminals) within civilisation and rightlessness and
inequality in the state. This means that socialist literature, which has revealed these mysteries, is still a
mystery to Herr Szeliga, or that he wants to convert the best-known findings of that literature into a
private mystery of “Critical Criticism”. 

We therefore need not go more deeply into Herr Szeliga’s discourse on these mysteries; we shall merely
draw attention to a few of the most brilliant points.

“Before the law and the judge everything is equal, the high and the low, the rich and the
poor. This proposition stands at the head of the credo of the state.

Of the state? The credo of most states starts, on the contrary, by making the high and the low, the rich
and the poor unequal before the law

"The gem-cutter Morel in his naive probity most clearly expresses the mystery” (the mystery
of the antithesis of poor and rich) “when he says: If only the rich knew! If only the rich
knew! The misfortune is that they do not know what poverty is." 

Herr Szeliga does not know that Eugéne Sue commits an anachronism out of courtesy to the French
bourgeoisie when he puts the motto of the burghers of Louis XIV’s time ”Ah! si le roi le savait!“ in a
modified form: ”Ah! si le riche le savait!“ into the mouth of the working man Morel who lived at the
time of the Charte vérité.” In England and France, at least, this naive relation between rich and poor has
ceased to exist. There the scientific representatives of wealth, the economists, have spread a very detailed
understanding of the physical and moral misery of poverty. They have made up for that by proving that
misery must remain because the present state of things must remain. In their solicitude they have even
calculated the proportions in which the poor must be reduced in number by deaths for the good of the
rich and for their own welfare. 

If Eugene Sue depicts the taverns, hide-outs and language of criminals, Herr Szeliga discloses the
“mystery” that what the “author” wanted was not to depict that language or those hide-outs, but
“to teach us the mystery of the mainsprings of evil, etc." 

"It is precisely in the most crowded
places … that criminals feel at home." 

What would a natural scientist say if one were to prove to him that the bee’s cell does not interest him as
a bee’s cell, that it has no mystery for one who has not studied it, because the bee "feels at home
precisely” in the open air and on the flower? The hide-outs of the criminals and their language reflect the
character of the criminal, they are part of his existence, their description is part of his description just as
the description of the petite maison is part of the description of the femme galante

For Parisians in general and even for the Paris police the hide-outs of criminals are such a “mystery” that
at this very moment broad light streets are being laid out in the Cité to give the police access to them.

– Karl Marx and Frederick Engels, “Chapter V: ‘CRITICAL CRITICISM’ AS A MYSTERY-MONGER,
OR
“CRITICAL CRITICISM” AS HERR SZELIGA,” The Holy Family.1845.

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“The positivist school, with its ‘scientific’ approach, introduced principles of legitimacy no longer based on juridical ethics but on what was claimed to represent scientific evidence. At this point the reaffirmed abnormality of offenders provided justification for suspending the relationship between punishment and crime in order to build a new relationship between the individual and the quest for appropriate ‘treatment.’”

– Christian Debuyst, et al., ed. Histoire des savoirs sur le crime et la peine. Vol. 1, Des savoirs difus à la notion de criminel-né. Montreal: Presses de l’Université de Montréal, 1995. p. 292 

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“Penitentiary isolation had, after all, aimed to penetrate minds and recapture hearts. The moral treatment and reform of the offender necessitated action on the soul; it demanded a borderline totalitarian obsession with changing him from within. Liberal discourse sounded the death-knell of this ideal. It insisted that the inner space from which the will emerges, and where responsibility rests, should be free from interference. A custodial sentence is merely that: a loss of one’s physical freedom. It does not imply that any learning is being done. And, in a world where regulation is a function of the market, the only thing confinement can accomplish is to punish prisoners by excluding them from the market’s operational logic. Individuals are to be judged by their acts. They will be held accountable only for the outward, explicit manifestations of their will. In this view, crime is not so much an indicator of societal decadence as an individualized form of defiance. In the great liberal transition, the individual has regained responsibility for his actions, whether good or bad, and must bear the consequences.”

– Jean-Marie Fecteau, The Pauper’s Freedom. Translated by Peter Feldstein. Montreal: McGill-Queen’s Press, 2017. French edition 2004.  p. 117.

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IX. HABITUAL CRIMINALS

Another aspect of the rehabilitative ideal was the segregation
of offenders into categories to prevent “contagion”. Some
classification took place in the 1930s with the construction of Collins
Bay in Kingston and Laval at St. Vincent de Paul for younger and less
hardened offenders. The construction of these institutions is
important in the history of sentencing because, for the first titre, the
judges lost a great measure of control over the institution in which
the sentence would be served. It was now up to the Penitentiary Branch
to decide where an inmate sentenced to over two years would go. Prior
to this, the Ontario judge, for example, made the decision between a
provincial institution or Kingston Penitentiary, the only Federal
institution in Ontario. 

There had also been some attempt in earlier years to segregate
some of the more brutal offenders by using the Prison of Isolation at
Kingston. One group in particular that was thought to require
special attention was the habitual criminal. The Gladstone Committee
of 1895 talked of the “large class of habitual criminals not of the
desperate order, who live by robbery and thieving and petty larceny,
who run the risk of comparatively short sentences with comparative
indifference.  The Committee recommended "that this class of
prisoners should be kept as a class apart from others. We think that
they are a most undesirable element in a mixed prison population, and
that they require and deserve special treatment.” Moreover, they said,
“a new form of sentence should be placed at the disposal of the judges
by which these offenders might be segregated for long periods of detention….” Such special legislation was enacted in England in
1908, but not in Canada. The Archambault Report recommended
that similar legislation be passed and in 1947 such legislation
was enacted. A habitual criminal was defined as one
who “has previously, since attaining the age of eighteen years, on at
least three separate and independent occasions been convicted of an
indictable offence for which he was liable to imprisonment for five
years or more and is leading persistently a criminal life”. A person
found to be a habitual criminal would be incarcerated for life, with a
yearly review. The English legislation, it should be noted,
was repealed in 1967. As the Ouimet Report pointed
out, legislation “was enacted in Canada at a time when its
defects were already being recognized in England”. The Ouimet
Committee recommended its abolition. In 1977 the habitual
criminal legislation was repealed and replaced by “Dangerous
Offenders” legislation.

– Martin Friedland, “SENTENCING STRUCTURE IN CANADA: HISTORICAL PERSPECTIVES.” Research Reports of the Canadian Sentencing Commission. Toronto: University of Toronto 1988 pp. 44-45  

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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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