2. The Evolution of Penitentiary Discipline in Canada

CANADA'S FIRST PENITENTIARY: CRUEL AND UNUSUAL PUNISHMENT IN THE NINETEENTH CENTURY

For most of the first half of the nineteenth century serious crime was not the major problem in Canada that it was in England. Very few men and women were convicted of murder, rape, robbery, or burglary. The most common criminal offence was simple larceny.1 But although the criminal calendars at the assizes in Upper Canada were not taken up with serious offences ,it should not be thought that crime was not viewed as a serious problem. J.M. Beattie, in his incisive analysis of contemporary newspaper, reports of the judges' charges to grand juries, reports of trials, and editorials, has shown that there was a great deal of public discussion about crime, its causes and the appropriate response of the state. In terms reminiscent of the debate in England, those in Canada who held property and power saw crime not simply as an individual's fall from grace but as a social disease characteristic of the poor, the origins of which lay in a lack of moral sense and indolence. Mr Justice Sullivan, in his charge to the grand jury in 1849, stated:

I find by the calendar that several prisoners are confined on the charge of burglary, an offence within my recollection almost unknown in the province, but from which its exemption cannot be hoped as population increases, and vice and poverty become consequently more abundant. Burglaries and robberies are usually the crimes of a class utterly vicious and abandoned; and when persons of this description are permitted to swarm, it is in vain to expect that the crime that usually accompanies their presence shall not be also found.

Most people who live in the suburbs of this city [Toronto] or who have extended their walks into the fields in rear of it, must have observed, as I have, the wretched and squalid women, apparently living without home or shelter, scantily clothed, and hovering even in our inclement weather around fires plundered from the neighbouring woods and fences. These have their attendant ruffians, and no means of prolonging existence but the practice of vice of the most revolting nature. With such beings and their associates incitements to crime are almost invincible. They have little fear from the severity of the law, and no religious or moral sensibility to keep them from evil.2

Given that the social dimensions of crime were seen in much the same terms in Canada as in England, it is not surprising that penitentiary discipline was also seen as one of the primary ways to effect the necessary changes in the morality and habits of the poor.

Since crime was thought to be the product of a criminal class that lived in destitution and ignorance, that lived without the restraints of morality and religion, or the restraints that are concerned for their good character imposed on the respectable members of the society, crime could only be prevented and society protected if the habits and behaviour of the lower orders of the population were changed. Industrial schools; houses of industry; prison discipline; these were to be the instruments of reform. Internal discipline and good work habits would succeed in protecting property from the envy of the lower orders where the horrors of the gallows had failed.3

The momentum for prison reform as part of a moral crusade against the vagrant poor was accelerated in Canada as it had been in England by the increasing criticisms of the 'Bloody Code,' the harsh criminal code introuced into Quebec and later into Upper Canada from England, which sought to deter crime under the 'great umbrella of terror,'4 the gallows. But the campaign to abolish the death penalty presumed a new architecture and a technology of discipline, both of which had already evolved in England under the guiding vision of Howard and Paul. In Upper Canada in 1830 the prisons were still subject to most of the vices Howard had spoken of as characteristic of the English prisons of 1770. The local jails were places of detention in which debtors and prisoners awaiting trial or execution were kept with little separation between them. A report of a select committee of the House of Assembly investigating the desirability of building a penitentiary endorsed the following description of the state of the prisons in Upper Canada in 1831:

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