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“The history of the Pied-du-Courant prison in Montreal clearly reflects and illustrates the ongoing changes in liberal penalty while highlighting its practical advantages and limits. The discourse on punishment methods in the democratic era was not static or repetitive; it was, rather, quite responsive to the vagaries of the liberal worldview and the contradictions inherent in it, as well as to the challenges to liberalism that arose in the late nineteenth century. But just as the utopian ideal of reform through imprisonment ebbed back into a punitive reflex, turn-of-the-century hopes for the scientific treatment of crime would not have much effect on penal practice.

The reason was very simple: the liberal worldview was the only viable one in a society based on individual liberty. It alone acknowledged the primary purpose of penal justice (punishing crime) while satisfying the demands of basic humanism (not mistreating the prisoner), leaving reformist reveries to the penitentiary managers and philanthropists. Its agenda was simplicity itself: let the prison do what it does best. Let it lock up criminals under conditions suitable for their punishment, and thereby deter honest folk from taking the road to crime. 

Given this situation, a science-driven revolution in prison management was not to be expected. Once the West’s imposing penitentiary system was put in place after the 1830s, it remained only to manage  it in all good conscience, as the liberal philosophy of punishment required. The sombre confines of the modern prison remained impervious to challenges from the new science of criminology; penal formalism was not to be subordinated to case-by-case treatment. Only on the treatment of hardened criminals and recidivists did criminologists and prison authorities see eye to eye.The discourse of eugenics was invoked to justify the indefinite or permanent isolation of this group of people deemed beyond rehabilitation, incapable of life of society. Confinement became the end of the road, a dumping ground for these new wretched of the earth, for whom science had found no better solution than to lock them away in the darkness of the cell. In Canada, the penitentiaries had played this role since the mid-nineteenth century, with the workaday silence of the federal prison administration being periodically disturbed by the occasional prison riot and the commission of inquiry which inevitably followed.  

But what of the jailhouse? A revolving door for petty criminals, caught up in the busy administration of everyday violations and misdemeanor, it meted out a kind of haphazard mass punishment without enjoying the luxury of engaging in speculation about the possibility of reform. The Montreal prison is a particularly striking example of this dynamic.

Yet at its inception in 1836, in the heyday of utopian penality, it had been thought capable of rising to the highest challenges, and even one day serving as a penitentiary, following the lead of the one just opened at Kingston in the neighbouring colony. Its designer, the architect Henry Musgrave Blaiklock, seems to have been inspired by the Pennsylvanian model (twenty-four-hour solitary confinement) in his design for rather spacious cells arranged in wings looking onto a central corridor.

After 1843, however, when the Kingston penitentiary was assigned the role of housing Lower Canadian criminals sentenced to more than two years, the Montreal prison was confirmed in its role as a holding pen for petty criminals. Thus began a long history of lamentation, in which both prison managers and inspectors deplored the facility’s overpopulation, outdatedness, and inadequacy for purposes of rational treatment, as well as the structural impossibility of adopting an effective classification of its inmates. Solitary confinement at the facility came in for special condemnation.

And yet despite all these deficiencies, the Montreal prison did the impossible; it endured. From 1840 onward and throughout the whole period under study, it remained by far the largest penal institution in Quebec. Moreover, all things considered, it evinced a remarkable capacity for adaptation. In fact, all the issues of liberal penality discussed in this chapter can be found encapsulated in its history.

Consider, for example, the principle of functional specialization. Starting in earnest in the 1870s, specific institutions would be built for girls (1870), boys (1873), and women (1876), leading to the disappearance of these populations from Pied-du-Courant. Moreover, efforts were made to convert it into a more modern, cell-based facility. The 1897 inspectors’ report states that 227 individual cells had been built in this relatively modest buildings, along with 84 three-person cells and 4 ‘open quarters.’ Even the endless debate over penal labour (work as punishment or work as a means of improvement) was enacted within these old, overpopulated walls. Prisoners had initially been assigned to breaking rocks and beating hemp. In 1839, however, after an abortive project to put them to work under a contract with the City of Montreal, the new prison governor, Charles A.Vallée, commissioned a building in the prison yard to house new workshops. The implementation of these workshops attests to the transition from purely penal work to work designed to provide some form of training.

Obviously, the biggest obstacle to the ‘modernization’ of the Montreal prison related to its role as a local facility for a transient population of petty criminals. The prison inspectors’ inability to convince the provincial authorities to build an ‘intermediate’ prison to house ‘habitual criminals’ (vagrants and beggars who used the prison as a short-term asylum) for longer intervals gave way to a realization that the prison could be neither deterrent (in the liberal sense of the term) nor reformative. Even the prospect of early parole was a relatively meagre incentive for a person serving only a month or two in prison, as was the case for the large majority of the facility’s population.

It is hard to avoid that the impression that the Montreal prison, as outdated and inadequate as penal specialists argued it was, played its role of handling the day-to-day inflow and outflow of petty criminals quite well. It served its purpose as the punitive instrument of first resort. The time was long gone when the authorities were enthusiastically building great shrines to the ideal of reform, yet the prospect of a comprehensive therapeutic solution to crime sat somewhere off in an indistinct future. Only legal formalism remained: punishment in response to violation of the formal injunctions contained in the Criminal Code. Seen in this way, the Montreal prison and its history encapsulate rather well the limited ambitions of liberal penal philosophy. The fact that it also served as a refuge for the poorest citizens – a situation decried throughout the period – constitutes another important dimension of this institution…”

– Jean-Marie Fecteau, The Pauper’s Freedom. Translated by Peter Feldstein. Montreal: McGill-Queen’s Press, 2017. French edition 2004. pp.132-35.

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“…the lines of influence had to run not from the prison to the community but from the community to the prison. Rather than serve as a model to the society, the penitentiary was to model itself on the society; it was not to be an antidote to the external environment, but a faithful replication of it. ‘The conception of the prison as a community’ was the organizing formula. ‘Temporary exile into a temporary society as nearly as possible like normal society on the outside would seem the best solution.’

Such an orientation appeared first in the 1870′s, with the Declaration of Principles of the National Congress. But the Progressives enlarged on these ideas and made them relevant to the operation of all types of prisons. Persuaded of the essential soundness of the American system and committed wholeheartedly to the notion of individualizing criminal justice, they labeled the traditional prisons ‘machine-like,’ and criticized them as failures at rehabilitation. How could it be otherwise when they prescribed the same medicine to all inmates and did not prepare them to reenter society? ‘The old prison system,’ noted on reformer, ‘exists in terms of suppression and isolation of the individual and in a denial of a social existence.’ It was absurd to compel a prisoner to follow ironclad rules in the institution when he should have been helped to adjust to the democratic quality of community life. The prison had to be redesigned to meet individual needs and to facilitate an eventual return to society.

The task may well have appeared formidable. After all, every state prison held anywhere from one thousand to three thousand inmates in an environment that, at best, resembled a factory. But Progressives were certain of their ability to individualize and democratize the prison. They wished to abolish such inherited practices as the lock step and the striped uniforms. They encouraged liberalized correspondence and visitation rules; to maintain contact with the outside society would facilitate the inmate’s later adjustment. Further, they detested the rule of silence; inmates were social creatures and should be so treated. Progressives also looked to introduce amusements into the prison routine. Sports, exercise, movies, bands, and orchestras, all now seemed appropriate. And so did commissaries, where prisoners could purchase the small but significant amenities that would heighten their sense of a more ordinary life.”

– David J. Rothman, Conscience and Convenience: The Asylum and Its Alternatives in Progressive America. Revised Edition. New York: Aldine de Gruyter, 2002 [1980] pp.118-119

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“This drastic revision of penality’s logic [from punishment to rehabilitation] occurs precisely at the historical moment when the political franchise is being extended to include the mass of the (male) working class within its terms for the very first time…At precisely the same time a whole series of institutions and regulations are put in place which are designed to identify all those legal citizens (or prospective legal citizens) who lack the normative capacity to participate and exercise their new found rights responsibly. Once identified, these deviants are subject to a work of normalization, correction or segregation, which ensures one of two things. Either they become responsible, conforming subjects, whose regularity, political stability and industrious performance deems them capable of entering into institutions of representative democracy; or they are supervised and segregated from the normal social realm in a manner that minimizes (and individualizes) any ‘damage’ they can do.”

– David Garland, Punishment and Welfare: A History of Penal Strategies. Aldershot: Gower, 1985. p. 249

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“By its very success, the liberal conception of crime paved the way for its own obsolescence. In the mid-nineteenth century, the prison had become the most widespread form of punishment, and solitary confinement the standard method for managing the penitentiary population, at least at night. But this situation soon met with a critique of the some of the most basic assumptions of liberal penality.

The critique began as an implicit question: Prison is an instrument of punishment, no doubt – but is it no more than that? Is it merely a method of forcibly inculcating honest ‘habits’ – that varnish of conformity with which Toqueville was perfectly satisfied? Even if it is agreed that crime is first and foremost an act, does it necessarily follow that such an act constitutes a one-way crossing of the border between honesty and crime? Are the mind and the soul of the criminal completely impervious to influence? The science of motivation, emerging from the practice of routine prison management, would soon be making a contrary claim.  

The idea was to act upon the criminal’s free will, the capacity for reason abiding deep within him; to pluck the subtle strings of desire and hopefulness that kept this capacity alive. The prison, the locus of punishment, would now turn to the business of motivating prisoners to do better in life. The horror it inspired in potential criminals, its fearsome reputation as a place to be avoided, would catalyze a rebirth of the will and a renewal of self-esteem. Yes, the habits prescribed by Tocqueville and his followers would have to be acquired. The key difference was that they would now be acquired willingly, progressively, and with the prisoner in control of the pace of change.

This reconciliation with the prisoner’s agency, this faith in his capacity to regain the self-esteem denied him by Tocqueville, was expressed by the Quebec prison inspectors in the following terms, in 1869: 

The cultivation of pride and self-esteem in the prisoners is a great moral strength to them. Pride is the most powerful sentiment of humanity, for it is the most purely personal. From this is drawn the principle that we should not degrade those coming to prison and already blighted by crime.

Investing in motivation as opposed to coerced submission because the cure-all applied by the liberal prison. This approach accorded with the primary values of liberalism in that it recognized the operation of the will as primary even in criminals, yet remained compatible with the imperatives of prison management, and especially cell-based management. The Irish model of Walter Crofton and early parole were the very quintessence of this development. Other examples were indeterminate sentencing and the use of merit systems in reformatories. In its new incarnation, prison was at worst a purgatory, one whose duration could be shortened by good behaviour.

But how then was it to play its punitive role, now that it was also saddled with the job of instilling motivation in inmates? Here, ironically, in the marrow of the criminal personality, was the substance of the liberal ethic of will and responsibility. The hope of improvement and personal progress at the heart of liberalism collided frontally with the need to punish deviations from legality by stigmatizing their perpetrators.”

– Jean-Marie Fecteau, The Pauper’s Freedom. Translated by Peter Feldstein. Montreal: McGill-Queen’s Press, 2017. French edition 2004. pp.128-129.

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“Old age rehabilitates criminals better than all programs, congress finds,” Globe and Mail. June 30, 1973. Page 12.

No one can say what will definitely work

By John Beaufoy, Globe and Mail Reporter
REGINA – About the only thing to come out of the Canadian Congress of Criminology and Corrections this week was the conclusion that nothing rehabilitates like old age.

With all the programs and all the experiments being tried across Canada, no one here was able to stand up and say, ‘This is the way to rehabilitate a criminal. This will work.’

Instead, six days of speeches, seminars, and learned papers have produced confusion in the minds of some delegates, adherence to rigid stances on the parts of others, and pleas for unity and co-ordination from almost everyone.

Which is not to say that the 600 people who wound up their conference here yesterday aren’t interested. After all, they’re professional. They make their living by working with society’s rejects – the men and women who’ve gone beyond ‘our’ limits.

But interest and dedication, many of the delegates admit, are not enough. What’s needed, they said, is a whole new approach to corrections.

So, a senator bangs his fist on the lectern and exhorts policy-makers not to build more prisons, while an official of the Canadian Penitentiary Service tells how many new institutions will be built in the next few years.

A professor criticizes the police, judiciary, corrections, parole and other after-care agencies for all operating independently, and the component parts respond that all they’re trying to do is their individual jobs. And, in fact, that’s what they’re doing.

The police arrest. The judge sentences. The prisons imprison. The parole board and the after-care agencies supervise and do what they can to bring the ex-offender back into the community. But it just doesn’t seem to have much of an effect on the offender.

And 80 per cent of those sentenced to federal institutions – serving terms of two years or more – have been in trouble before. Prison is just the end of a long winding road through juvenile court, training schools, probation and provincial jails.

‘They’ve been through the meatgrinder,’ says Paul Fuguy, Commissioner of Penitentiaries.

And, figures show, more Canadians are going through that meatgrinder every day and ending up in jail. The federal prison population has risen to about 9,000. A year ago it stood at 7,500.

Delegates here addressed themselves to the causes of this increase and its practical outcome – overcrowding in prisons, increased probation and parole case loads, more inmates to supervise with the same amount of staff, and less opportunity to attempt rehabilitation.

Institutional confinement even under the best of conditions is tension-producing, they comment. Crowd more people into the system, and there may be an increase in prison violence, more escapes, more parole violations.

This said, however, the same people contend there’s little they can do except try to cope with the people sent to them by the courts. The sheer volume of day-to-day work precludes their devising any new approaches to crime prevention, police discretion, or community – as opposed to judicial – disposition of offenders.

And, although there are indications that at some local levels that the various components are starting to work together, it’s not moving fast enough, according to John Braithwaite, Deputy Commissioner of Penitentiaries. 

‘We must cease this … warfare,’ he told the delegates. ‘We must strive to work better together.’

Without better communications, collaboration and co-operation between the police, judges, and corrections workers, the criminal justice system cannot become meaningful to the average Canadian, he said.

Yesterday provincial deputy ministers and their federal counterparts responsible for corrections met here to plan the agenda for the fall federal-provincial ministerial meeting on the subject.

The September meeting will be the first of its type since 1968. If that time-lag is startling, consider this: it wasn’t until October 1971 that the Canadian Penitentiary Service hired an information officer to tell its story.

‘The job,’ says Yvan Roy, ‘has proved challenging, but difficult. Spreading the word about prisons isn’t like announcing financial aid.’

His difficulty, like that of most people in the correctional field, seems to have been summed up by Mr. Braitwaite when he quoted King Solomon visiting his harem: ‘I have a vague idea of what is expected of me on this occasion, but I know not where to begin and I have grave doubts that I have either the stamina or the ability to fulfill my task.’

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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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