HISTORY MATTERS!

CRIME AND PUNISHMENT IN UPPER CANADA PRE 1865

First in an Old Don Jail series

by Elizabeth Abbott

The Old Don Jail is much more than an imposing heritage site looming over Gerrard Street just west of the Riverdale Library at Broadview Avenue. It is also an architectural triumph incorporating the most advanced mid-19^th century criminological thinking into its physical plant.

Let’s take a look at how convicted criminals could expect to expiate their crimes before the advent of the Don Jail, which opened only in 1865, two years before Confederation. Then, the very definition of “crime” was different. Murderers, pickpockets, thieves, forgers, smugglers and prostitutes were all deemed lawbreakers but so were vagrants, the foul-mouthed and/or drunken disorderly, and debtors, the latter constituting nearly half of Upper Canadian inmates. In addition, youngsters were treated much less distinctly than they are today and were subject to the adult penal code. Records show even eight year old boys doing time alongside hardened adult criminals.

1850 1860

Offense	Male	Female	Boys	Male	Female	Boys
Disorderly Conduct	84	224	32	1169	886	82
Drunkenness	297	64		Drunk & Disorderly combined
Assault	229	50	18	229	44
Larceny	60	52	12	230	143	53
Forgery	9			5
Horse Theft	3			1
Receiving Stolen Property	1	4		26	20
Threatening	62	12		123	64
Burglary and Robbery	2
Rape	3				2

Imprisonment was just one of several punishments. In the early 19^th century, short jail terms plus whipping or branding of tongue or hand with a hot iron, banishment (from the neighbourhood, the district or the county) and fines were common. For one out of two convicted murderers, and for other, unlucky offenders, so was a quick and public execution. In 1798, for instance, tailor John Sullivan was publicly hanged for forging a three shilling, nine pence money order (After 1869, the hangman worked behind doors closed to the general public.) Between 1831 and 1835, when the Kingston Penitentiary opened, of 280 Upper Canadians convicted, 167 were only jailed, 52 were jailed and fined, 12 were only fined, 24 were hanged and 53 were banished. Often jailed convicts were also whipped, the usual fate of those found guilty of petty (less than 1 shilling) theft. Female thieves were not exempted, but Scarlet Ladies were usually publicly pilloried instead.

What was it like in an Upper Canadian jail? Jail-time was unpleasant, degrading and uncomfortable. It was not, however, particularly shameful, and debtors, the insane and the needy were confined with the mostly young, male, Irish or American lawbreakers. Sentences were usually short because judges knew that jails were damp, badly ventilated and unsanitary, freezing cold or broiling hot and often built partially underground. “In winter the stench … is enough to knock down a butcher’s dog – in summer it is enough to poison … a rattlesnake,” recalled one former prisoner.*

Jails were also meagerly furnished and often provisioned with such inadequate food that even a brief incarceration could ruin an inmate’s health and break his spirit. The families of jailed men unable to support them suffered as well. So did women convicts who, for want of separate facilities, were often locked up with men; in Brockville, a woman awaiting trial had four male cell-mates. Dangerous or escape-prone prisoners were kept in iron fetters, chained to wall or floor.

Convicted criminals shared large cells; debtors shared theirs; the jailer and his family lived in adjacent quarters. Jails provided no training or instruction, and little or no religious guidance. Most had no chaplain. A few lacked even a Bible. In the daytime, prisoners sat idle in hallways, returning to their cells only at night. Jails also housed non-criminal misfits, notably the mentally ill, “saved” from the streets by being warehoused together in jail. An 1830 inquiry found three madwomen locked into a jail basement and a debtor complained that “their incessant howlings and groans were annoying in the extreme.”*

Until the 1840s, criminals were the minority in Upper Canadian jails. Debtors, doomed to remain inside until they paid the debts that had landed them in jail in the first place, stayed the longest and suffered most; they were more likely to sicken or starve on the bread and water that was too often all that strapped jailers could provide, and to be refused medical care by doctors aware that they could not pay.

In about 1800, Toronto’s first jail was erected on marshy land south of King and Jarvis, a wooden structure protected by a stockade of sharpened cedar posts. It was as bad as Upper Canada’s worst, with inmates sleeping on straw over the earthen floor, and subsisting on bread and water. A more substantial brick jail replaced it in 1824 followed, in 1840, by an even more secure stone structure south of Front Street near Parliament.

These jails looked much like other public buildings and were designed to confine their inmates for short terms, punishing but not “correcting” them. This was consistent with the enlightened criminological theories of Italian philosopher Cesare Beccaria and shared by Upper Canada’s Chief Justice, John Beverley Robinson, who declared: “it is the certainty more than the severity of punishment which deters offenders.”*

The opening of the Kingston Penitentiary in 1835 signaled the advent of a new approach to crime and punishment: using confinement alone to punish offenders, to sow “Terror to Evil-Doers”* and, ultimately, to rehabilitate. The object was, explained Upper Canada Herald editor Hugh Christopher Thomson, to imprison offenders in “a place by which every means not cruel and not affecting the health of the offender shall be rendered so irksome and so terrible that during his afterlife he may dread nothing so much as a repetition of the punishment, and ... that he should prefer death to such a contingency.”**

That’s why this new institution was called a “penitentiary.” Those housed inside its frightening precincts were supposed to become penitent.
Sentences were long and parole or tickets-of-leave did not exist. Unlike jails, the penitentiary had strict rules, religious instruction and its inmates were assigned compulsory jobs. These included farm chores, animal care and breaking stones in a quarry. Also unlike jails, inmates lived in solitary cells measuring only 0.73 metres wide, 2.4 metres deep and 1.83 metres high, each furnished with a bed, a Bible, and two buckets: one to drink from, the other an improvised toilet. The cells stank and so did the inmates, who could bathe only once a month.

            Worst of all, inmates were not allowed to speak: the penitentiary followed a regime of strictly-monitored silence, and even guards refrained from speaking to each other in the inmates’ hearing. Silence was supposedly inspirational and monastic; it was also supposed to foil attempts to coordinate trouble or to escape.
            Inmates who violated the rules were punished, confined to a dark punishment cell, restricted to bread and water or whipped with a cat’o’nine tails. They were also restrained, for anywhere from 15 minutes to nine hours, in the coffin-like “Box,” unable to sit or lie down and barely able to breathe.
            This was the state of crime and punishment when the Old Don Jail began to take shape as a glimmer in the eyes of its authors, the law-makers and judicial thinkers of Upper Canada.

First Toronto Jail, King St. East at Leader Lane, 1799-1827

Second Toronto Jail, 1820-1840, northeast corner of King St. at Toronto Street

Elizabeth Abbott co-founded the Riverdale Historical Society with Ron Fletcher, was Vice-President from 1999-2009, and is now a Board Member.

* Peter Oliver, Terror to Evil-Doers, pp. 65, 44, 104; **Cited by Emma Reilly in “The ‘pen’ of Kingston past,” The Journal, Queen’s University, Oct. 14, 2005.

[1] This series was first published in The Voice, the community newspaper published by Barbara Neyedly, with editor Colin Grant. Unfortunately, we do not have the original copies of The Voice, and do not know the exact dates these articles appeared.