What these and many more official reports suggest is that the experience of imprisonment, as a response to crime, is itself criminogenic: it actually produces and reproduces the very behaviour it seeks to control. There is another theme that runs the historical course of 150 years between the early days of the penitentiary and the cusp of the twenty-first century. It is that the experience of imprisonment, intended to inculcate respect for the law by punishing those who breach its commands, actually creates disrespect for the very legal order in whose name it is invoked.

The continuity of this theme is nowhere better illustrated than in events that have taken place on the shores of Lake Ontario, in the city of Kingston, where in 1835 Canada's first penitentiary received its first six prisoners. A sepia-toned photograph of the North Gate of Kingston Penitentiary shows a row of white Doric columns created from local limestone, announcing, to those who entered within, a new era in the treatment of prisoners, with reformation and moral recalibration fashioned along the Enlightenment ideals embraced by prison reformers on both sides of the Atlantic and reflected in the reform blueprints of John Howard. As legislative accompaniment to the new institution, Canada enacted its first Penitentiary Act. Borrowing from the preamble of the English Penitentiary Act of 1779, it set out the intentions behind Kingston: "If many offenders convicted of crimes were ordered to solitary imprisonment, accompanied by well-regulated labour and religious instruction, it might be the means under providence, not only of deterring others from the commission of like crimes, but also of reforming the individuals, and inuring them to habits of industry" ( An Act to Provide for the Maintenance by the Government of the Provincial Penitentiary, [1834], 4 Will. IV, c. 37).

Yet in contrast to the promise of this preamble, the first decade at Kingston Penitentiary saw the establishment of a regime of cruel and escalating punishments which, while less public than the spectacle of the gallows, were unimagined by those who drafted the Penitentiary Act. The litany of abuses practised by Kingston's first warden are documented in the report of the Brown Commission, which was set up to investigate the penitentiary in 1848. In Prisoners of Isolation, my study of solitary confinement in Canada, I summarized the findings of that commission.

For the first seven years of the penitentiary's operation the warden had relied exclusively upon flogging as the sole punishment for offences of all types. The Commissioners reported that many of these floggings were inflicted on children: during his first committal in Kingston, an eleven-year-old whose offences were talking, laughing, and idling was flogged, over a three-year period, thirty-eight times with the rawhide and six times with the cats; another boy whose "offences were of the most trifling description -- such as were to be expected from a child of 10 or 11 . . . was stripped of the shirt and publicly lashed thirty-seven times in eight and a half months." The Commission referred to these and similar cases as examples of "barbarity, disgraceful to humanity." The Commission further documented cases of men and women who had been flogged into a state of insanity. One prisoner was subject to "seven floggings with the cats in a fortnight, and fourteen floggings in four weeks with the cats or rawhide. It is very clear that if the man was deranged when he arrived, or had any tendency towards it, that the treatment he received was calculated to drive him into hopeless insanity." (Michael Jackson, Prisoners of Isolation: Solitary Confinement in Canada [Toronto: University of Toronto Press, 1983] at 28-29)

The Brown Commission's report condemned Warden Smith's regime not only as a living hell but as a catalogue of such arbitrariness and injustice that "must have obliterated from the minds of the unhappy men all perception of moral guilt and thoroughly brutalized their feelings" ( Second Report of the Commissioners Appointed to Investigate into the Conduct, Discipline, and Management of the Provincial Penitentiary [1849], cited in Jackson, Prisoners of Isolation, at 29). The commission, while condemning Warden Smith's individual sadism, reaffirmed that the purpose of the penitentiary was to restore the moral compass of the prisoner through contemplation, hard labour, and the teaching of honest trades. Its report also underscored the importance of fairness in the treatment of prisoners, both to re-establish the moral legitimacy of punishment and to allow the penitentiary experience to have a reformative effect.

A century and a half after Warden Smith's reign of terror, across the road from Kingston Penitentiary at the Prison for Women (opened in 1934), there was another series of events that drew the condemnation of a royal commission. Some of these events were captured on a dramatic Correctional Service of Canada videotape which, for the first time, in 1995 allowed the Canadian public to see deep inside the prison cells. The videotape and the 1996 report of the Arbour Commission documented how a small group of women, who were locked in their cells, had been descended upon by a male emergency response team from Kingston Penitentiary. The women, facing a phalanx of men outfitted in Darth Vader suits with full face visors, security shields and batons, were forced to disrobe, and in some cases had their clothes literally cut off with razor tools. Madam Justice Arbour commented that "upon viewing images taken from the videotape . . . members of the public have expressed reactions ranging from shock and disbelief, to horror and sorrow" ( Commission of Inquiry into Certain Events at the Prison for Women in Kingston, Louise Arbour (Canada) [Ottawa: Public Works and Government Services Canada, 1996] [Commissioner: Louise Arbour] at 86). She concluded that "the process was intended to terrorize, and therefore subdue" (at 88). Terror in the name of the law, but in violation of the law, had also been the charge of the Brown Commission. Madam Justice Arbour saw the events at the Prison for Women not simply as examples of individual deviations from law and policy but as systemic failures demonstrating the absence of a culture that respected the rule of law or individual rights: "The Rule of Law is absent although rules are everywhere" (Arbour, at 181).

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