Crime and Punishment in Upper Canada. Janice Nickerson
in population came necessary expansions in the justice system, along with an exponential increase in the number and kinds of available records. It would be difficult to describe them all within the confines of a handy guide.
I have also limited myself to the criminal justice system. I have not included information about civil, probate, and equity courts, nor have I gone into any detail about the administrative functions of the courts that also handled criminal justice. However, I have defined criminal loosely.That is, I have included the treatment of misdemeanors and by-law infractions. Also, in my discussion of imprisonment, I have included information about other uses of the gaols (jails), such as the incarceration of debtors and the mentally ill.
The acronyms at the beginning of each item in the records in–ventories refer to the following repositories:
AO: Archives of Ontario
BULA: Brock University Library Archives
HCM: Huron County Museum and Historic Gaol
LSUC: Law Society of Upper Canada
LAC: Library and Archives Canada
MUML: McMaster University, Mills Memorial Library, William
Ready Division of Archives Research Collection
NHS: Norfolk Historical Society
PCMA: Peterborough Centennial Museum and Archives
QUA: Queen’s University Archives
TCA: Toronto City Archives
TPL: Toronto Public Library, Baldwin Room
TUA: Trent University Archives
UWO: University of Western Ontario Library, Archives and
Research Collections Centre
Upper Canada was a sparsely populated British colony with an extremely low crime rate.1 Public institutions were primitive and most people had their hands full clearing and cultivating their newly acquired land, and trying to keep their pigs from wandering off. It wasn’t a coincidence that the first recorded topic discussed at a meeting of the inhabitants of York concerned fences to corral pigs.2
Nonetheless, even an infant colony needed a justice system. Upper Canada’s system was intended to be an exact duplicate of Britain’s. But, of course, local conditions required some modifi–cations. The important thing was to avoid making the perceived mistakes that had lead to the American Revolution.
Thus, from the very beginning, Upper Canadians defined themselves explicitly as “not American.” What made them dif–ferent was loyalty.3 Virtually every political issue ended up being about who was loyal and who wasn’t.
In 1791 the majority of the European inhabitants were United Empire Loyalists — refugees from the American Revolution who had stayed loyal to the King and the British Empire. They believed that the British constitution provided the most freedom and happiness possible in a peaceful and moral society.4 They feared unchecked democracy and the separation of church and state because they believed that democracy tempted politicians to play upon the worst appetites of man, and without official sanction the church would lose the moral authority to keep public order. They were convinced this would encourage greed, crime, and violence.5
Log Cabin, T. H. Ware, 1844. The original image is part of the Orilliana historical collection at the Orillia Public Library.
Their political masters were colonial officials whose own ideas of loyalty included fierce adherence to the “beliefs and institutions they considered essential to the preservation of a form of life superior to the manners, politics and social arrange–ments of the United States.” These included the supremacy of the Anglican Church, a hereditary aristocracy, and a balanced constitution. With those elements in place they believed that the Upper Canadian government would ensure that society was stable, orderly, peaceful, and respectable.6 To put it mildly, Upper Canada was an extremely conservative society.
It was also politically repressive.7 Criticism of the govern–ment or its officers was not permitted.8 Political offices were filled through a system of patronage that took almost no account of experience or knowledge. The key requirement for any office was loyalty.9
However, one of the principles that the British were so proud of was the centrality of the rule of law in the constitu–tion. This meant that the law was above everyone and applied to everyone equally.10
Tension between these two values — the importance of loyalty and the rule of law — would lead to many legal battles over the course of the fifty years of Upper Canadian history. For example, because the Attorney General and the Solicitor General claimed the monopoly on prosecutions at the Assizes rather than allowing the victim to hire counsel to conduct the prosecution, as in Britain, but still retained the right to private practice, sometimes they ended up prosecuting a man in the criminal court and defending him in the civil court.
New political ideas and social struggles were introduced by successive waves of immigrants to the colony. Between 1791 and 1812, the majority of the new arrivals were from the United States. Thus, of approximately 80,000 people in Upper Canada in 1812, about 60 percent were born in the United States.11 This inevitably led to worries about the loyalty of the population, and restrictions on immigration from the United States following the War of 1812, which had nearly resulted in Upper Canada becoming an American state.
Between 1812 and 1841, the majority of the immigrants to Upper Canada were from the British Isles: England, Scotland, and Ireland. By 1842, Upper Canada’s population had increased to 487,053. Of those, 54 percent were Canadian born, 7 percent were born in the United States, 33 percent were born in the British Isles, 1 percent were born in Europe. The remaining 5 percent did not have a place of birth specified in the census.12
One of the important effects of huge increase in population was to dilute the proportion of the population that adhered to the Anglican Church. By 1842, only 22 percent of Upper Canadian residents were Anglican. Seventeen percent belonged to one of the many Methodist denominations; 16 percent belonged to the Church of Scotland; 13 percent belonged to the Roman Catholic Church; 4 percent belonged to other Presbyterian denominations; 3 percent belonged to the Baptist Church; 1 percent belonged to each of the Congregational Church, Lutheran Church, and Society of Friends (Quaker); 5 percent belonged to other denom–inations; and 17 percent did not state a religion in the census.13 Naturally, special privileges for the Anglican Church became a major bone of contention. Members of other religious denomi–nations resented the fact that their taxes went to support the sala–ries of Anglican ministers (and not those of other denominations) and Anglican churches were built on land specially reserved for them by the government. This was only one of the issues that led up to the Rebellion of 1837, but it was a key one.
Morality, Criminality, and Justice
In a deeply conservative society such as Upper Canada, crime was considered a natural extension of immorality. If the community was made up of morally upstanding citizens there would be no crime. But if immorality were to gain a foothold, crime would surely fol–low. So it was important to enforce moral behaviour. Hence, break–ing the Sabbath and blasphemy were indictable offences.14 And other kinds of moral order offences, such as drunk and disorderly, vagrancy, public nuisance, and prostitution landed people in gaol (jail) nearly as often as offences we might today consider criminal.
Newspaper editors often discussed the “problem” of crime and its causes and solutions. It was generally believed that a small minority of people were innately “depraved.”15