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CHAPTER ONE The Context

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 But the main causes of crime boiled down to idleness (laziness, not working hard), drunkenness (which was both caused by and led to idle–ness), and lack of moral education (which led to both idleness and drunkenness).¹⁶ Thus, one of the more frequent suggestions for curbing crime was to encourage religious instruction to help people learn how to curb their baser instincts.¹⁷ Another was to limit the number of tavern licences and to appoint innkeepers as constables — with responsibility of keeping their patrons from becoming drunk and disorderly.¹⁸ Finally, there were attempts to find work for people while in gaol or prison — to help them learn industrious habits (and help pay for their keep, of course).¹⁹

Inequality Before the Law

Other factors were also at play when Upper Canadians thought about crime. Then, just as now, there were ethnic and racial ten–sions. The black population was extremely small, perhaps 3 per–cent, but young black males were often targeted as suspects in theft cases, and when victims were black, fines and other punish–ments were very low compared to when victims were white.²⁰

Then, as now, some people thought minorities were treated too leniently. In 1842 a letter to the editor published in the Brantford Courier opined,

It is high time that the majesty of the law should be vindicated as regards Indians and negroes. Really the government has been too lenient to both these classes of men in Canada; for of late years it was found to be sufficient reason to be an Indian or Negro to escape the gallows, no matter what crime they may have committed; whilst in too many instances white men were punished with all the rigours of the law.²¹

A much larger “racial” problem was presented by the Irish, especially in urban areas in the 1830s, when immigration from Ireland (especially Roman Catholics) was at its peak.²² Judging by newspaper editorials, the Irish were believed to be ruled by “untamed animal instincts” (thus accounting for the frequency with which they got into fights). The rhetoric of the period wasn’t so different from today’s; only the target has changed. Some of the complaints about the Irish included:

• They clustered in poor neighbourhoods;

• They had low morals;

• They had high rates of single parent families; and

• they got involved in gangs.

The Irish were disproportionately represented in justice records, especially for “moral order” offences such as being drunk and dis–orderly, vagrancy, public nuisance, and prostitution.²³ The number of Irish who spent time in the Hamilton gaol between 1832 and 1843 was significantly out of proportion to the population (the Irish-born represented 35 percent of gaol population when only 12 percent of the population was Irish-born) — especially young Irish Roman Catholic women (60 percent of all women in gaol between 1831 and 1851 were Irish). Irish women stood out even more among those gaoled for public order offences. Of the women taken in for drunk and disorderly conduct, three quarters were Irish; of those taken in for vagrancy, four-fifths were Irish.²⁴

Comparison of Country of Origin of Jail Population with That of Gore District Population ²⁵

Country of Origin	Distribution of Jail Population, 1832-1843	Distribution of District Population, 1842
England and Wales	14 %	13 %
Ireland	35 %	12 %
Scotland	6 %	12 %
Upper Canada	26 %	56 %
United States	17 %	7 %

Sexism was also a pervasive factor in everyday life as well as in the justice system. Women could not vote or hold any office. Married women could not own property. Wife beating was almost never reported, unless the wife feared for her life. Even then, there were very few convictions. Rape was treated more like property damage (the true victim being the woman’s father or husband) than violent assault. A husband could not rape his wife, partly because marriage created one legal person and partly because marriage implied permanent consent.²⁶

A newspaper article printed in 1834 summarized the rights of wives thus:

The effects produced by marriage, on the legal rights of the parties are important to be known in every family.

In law husband and wife are considered as one person; and on this principle all civil duties, and disabilities rest.

The wife cannot sue in her own name.

If she suffers injury or wrong in her person or property, she can with her husband’s aid and concurrence prosecute for redress; but the hus–band must always be the plaintiff. In criminal cases, however, the relation assumes a new form. The wife may, in criminal cases be prosecuted and punished.²⁷

Crime and Criminal Law

The laws of Upper Canada were very harsh. When Upper Canada was founded as a colony, its first legislative action was to adopt all the laws of England for the colony. Some laws were later modi–fied, but only very gradually. Even after a new statute was passed in 1833 to reduce the number of capital crimes, there were still many crimes punishable by death: treason (three types), murder, rescuing persons convicted of murder or committed for murder, rape, carnal knowledge of a girl under the age of ten, sodomy, robbery, burglary, arson, rioting, burning or destroying his maj–esty’s ships, arsenals, magazines of naval or military stores, acces–sory before the fact to any capital offence. ²⁸

Crimes Against Persons

This category includes abduction, assault, beating, cutting, kid–napping, murder, shooting, and stabbing. In his study of the Gore District gaol records, John Weaver calculated the average rate of crimes against persons between 1832 and 1840 as 75 per 100,000.³⁰ By comparison, the 2006 rate for violent crime in Ontario was 756.

Crimes Against Persons Prosecuted in the Niagara District ²⁹

Assault was the most common offence by far in the Upper Canada period. In the Niagara District there were 261 cases of assault at the Quarter Sessions (the lower court) from 1828 to 1833. However, only one was severe enough to be prosecuted at the Assizes (the high court, which tried cases for which capital punishment was a possible sentence).³¹

Most assaults were by men against men. A few were by women against women. Very few were by men against women.³²

The minutes of the Quarter Sessions for the London District record one case in which it appears that an entire family was charged with assault and battery in 1818. The Best family first appears in the records on 16 May, when the court ordered a bench warrant issued for John Best, John’s wife, and John’s son, Cosper Best, requiring them to appear at the next Quarter Sessions to answer charges. On 14 July, John Best, Mrs. Best, and Cosper Best appeared, as required, but were told to return the next day and given permission to go home.

There is no record of the Best family on the 15th, but on the 16th they appeared again. This time there were four of them: John, Dota (presumably John’s wife), Cosper, and Ann. Each were required to put up £100 to assure their appearance at the next Quarter Sessions. John Young and Philip Young were also required to put up £50 each for each of member of the Best family, as their sureties. There’s a note that says all the court costs were paid up to that date.

On 13 October, the Best family finally began their trial. John, Dota, Cosper, and Ann were all present, a jury of twelve men was sworn in. Caleb ? [Wood, I think] and Jeremiah Young were also sworn in as witnesses. Then there is a note, “Prisoner Ann Best not Guilty,” and the court was adjourned until the next day.

On the 14th, John Best, Dota Best, and Cosper Best were arraigned again and plead not guilty. Another jury of twelve men (only five of whom were on the previous day’s jury) was sworn in, Caleb Wood, Joseph Kitchen, and Matthew Tisdale were sworn in as witnesses for the prosecution; Jeremiah Young and Ann Best were sworn in as witnesses for the defence. The jury found the prisoners guilty. John Best was fined £1 10s.; Mrs Best was fined 15s. and Cosper Best was fined 5s. They were ordered to be imprisoned until they paid their fines, but they paid them promptly to the sheriff. ³³

It should be noted that even the most prominent citizens appeared in the Quarter Session records convicted of assault. It didn’t seem to affect their reputations or success in life.³⁴

More serious crimes were another matter. Between 1827 and 1846 there were twenty cases of murder brought before the Niagara District Assizes. In seven cases, the accused were con–victed, in ten cases they were acquitted, two cases weren’t heard, and one of the accused was judged insane and therefore unable to stand trial. Of the twenty accused, three were women. Of these, two were acquitted and one was found guilty of a lesser charge (concealing the birth of a child).³⁵

Only eight cases of rape were brought before the Niagara Assizes in the same period (as rape was a capital offence, it was not eligible to be tried at the Quarter Sessions). Six of the eight were acquitted. Very likely the low number of cases is due to the low conviction rate. The conviction rate rose dramatically after 1842, when legislation allowed conviction for “assault with intent to rape.”³⁶

In some cases, magistrates decided to prosecute for assault instead of rape. This allowed them to take the case to the Quarter Sessions (which was less intimidating and quicker) instead of the Assizes, and to increase the likelihood of conviction.

For example, in October 1836, Samuel Hathaway Farensworth of St. Catharines, yeoman, was charged with “assault with intent to carnally know a child under ten years of age.” The victim was a seven-year-old girl who had been liv–ing with Farensworth for a few weeks in the summer. The girl’s father prosecuted the case, bringing fourteen witnesses, includ–ing three doctors.The doctors all agreed that the child had been assaulted, which appears to have been rare. In all, twenty-nine witnesses and three constables testified at the lengthy trial. The jury convicted Farensworth and he received a sentence of three months in gaol and a fine of £25 and court costs, which would have been in the order of £20 (the fine would be equivalent to about seventy days work for a skilled labourer, perhaps $13,000 now³⁷). He complained bitterly about the costs, saying that sev–eral of the witnesses were either not necessary or didn’t need to attend court for more than one day (witnesses were paid 2s. 6d. per day in court, plus mileage).³⁸

R. vs. Samuel Farensworth, Cover Page of Bill of Indictment, October 1836, Lincoln County Court of General Quarter Sessions of the Peace Records, Ar–chives of Ontario, RG 22-372 Box 25 Folder 22.

Age was a significant factor, as carnal knowledge of a girl under ten was a capital offence (punishable by execution),³⁹ while carnal knowledge of a girl over ten but under twelve was still considered a misdemeanor.⁴⁰

There were very few prosecutions for wife beating. Women almost never asked for the protection of the law unless they believed their lives were threatened. Even then, there were few convictions for assault, mostly because the wives wouldn’t pros–ecute or no witness could be found. Instead, the magistrates resorted to the use of peace bonds. A single magistrate could require a man to sign a recognizance (legal obligation to pay a certain amount to the Crown) on condition of keeping the peace with his wife (or whoever the victim was) for a period of time, usually one year, and to find two sureties who would sign with him. A typical recognizance for keeping the peace was £50, with each of the sureties bound for half that amount.⁴¹

Crimes Against Property

Crimes against property were the most common offences tried at the Assizes. This includes such offences as theft, larceny, steal–ing, burglary, destruction of property, receiving stolen prop–erty, and fraud. Theft and larceny were the most common.⁴³ Between 1828 and 1841 in the Niagara District, there were 234 prosecutions for larceny at the Quarter Sessions and 77 at the Assizes.⁴⁴ According to the Gore District gaol records, between 1832 and 1840, the average rate of crimes against property was 107 per 100,000.⁴⁵

Crimes Against Property Prosecuted in the Niagara District ⁴²

	Larceny Quarter Sessions	Larceny at Assizes
1828	6	6
1829	14	2
1830	18	6
1831	16	5
1832	10	3
1833	17	2
1834	15	5
1835	20	8
1836	17	4
1837	36	6
1838	10	11
1839	16	7
1840	29	5
1841	10	7

Before 1789, petty larceny was defined as larceny of up to 1s.; grand larceny was larceny over 1s. As grand larceny was a capital offence (i.e., punishable by death), an Ordinance of 1789⁴⁶ raised the limit for petty larceny to 20s. in order to keep small thefts from clogging the high courts. Grand larceny was over 20s.

Anyone committed to gaol for petty larceny had to find bail within forty-eight hours (so he could be released on his recognizance to wait for trial at the Quarter Sessions), other–wise three Justices of the Peace could convict of petty larceny in petty sessions (without a jury).⁴⁷ In the 1820s grand larceny often brought six months in gaol and thirty-nine lashes.⁴⁸ The distinc–tion between grand and petty larceny was removed in 1837.⁴⁹

Crimes Against the Moral Order

Moral offences included abusive language, breach of by-laws, drunk and disorderly conduct, gambling, public nuisance, keep–ing a disorderly house, and vagrancy. In the Gore District between 1832 and 1840, the average rate of crimes against public order was thirty-three per 100,000.⁵⁰

As the districts were very autonomous in the early days, each had its own approach to dealing with moral order offences. In some districts, such as Newcastle, very few such crimes appear in the records, in others, such as London, the authorities were more vigilant. For example, between 1800 and 1820 there were four cases of profane swearing. All were convicted, and sentences ranged from fines of 2s. to 6s. Three men were fined 3s. 4d. each for breaking the Sabbath.⁵¹ In the Gore District, drunk and dis–orderly was by far the most common moral offence.⁵² Moral order crimes represented 12 to 13 percent of the total arrests in the Niagara District.⁵³

In one case reported in Toronto’s Colonial Advocate in 1834, a woman named Ellen Halfpenny appeared in Police Court for the third time in six weeks, charged with being drunk and dis–orderly. After having sentenced her to brief gaol stays the first two instances (just a few days), the third time the police report reads: “Ellen Halfpenny, a common scold, drunken and disor–derly, set in the stocks and ordered to clean prison cells.”⁵⁴

Regulatory Offences

Regulatory offences included such things as selling liquor with–out a licence or refusing to perform statute labour. These gen–erally brought summary convictions (i.e., they didn’t require a jury trial). Magistrates weren’t required to record their summary convictions before 1834, so there are few records of these.⁵⁵

A newspaper report of the Toronto Police Court activities for early June 1834, recorded two regulatory offences: James Sloan of New Street was fined £20 for selling spirituous liquors without a licence; and Wellington G. Armstrong was fined 6s. and 3d. for refusing to assist a constable in the execution of his duty.⁵⁶

Political Crimes

Upper Canada cases suggest that the administration of crimi–nal law was repressive, even by contemporary British standards of constitutionalism and legality.⁵⁷ Sedition proceedings were used to suppress political dissent several times between 1804 and 1828, including proceedings against Joseph Willcocks, the editor of the province’s first firmly established independent newspapers, Robert Gourlay, and Francis Collins another newspaper editor.⁵⁸

Francis Collins began his newspaper career as a composi–tor for the King’s printer, the Upper Canada Gazette. By early 1821, he was reporting on the debates in the House of Assembly, providing much more information than any newspaper had pre–viously. However, he sympathized with the reform cause and gave more coverage to the reformers’ point of view than to the Tories. For that, he aroused the ire of the establishment. When the publisher of the Gazette retired late in 1821, Collins hoped to take over, but was refused because he was not “a gentleman.” In July 1825 he founded his own newspaper, the Canadian Freeman, which he used to attack the government and its Tory connec–tions. In 1828 he was charged with four counts of libel. When the judge allowed him to make a statement in court (having appeared without counsel), he took the opportunity to attack the Attorney General (who was prosecuting Collins’ case) for dereliction of duty in not prosecuting the rioters who had destroyed William Lyon Mackenzie’s press a couple of years previously. Three of the four charges were withdrawn and he was acquitted of the fourth, but the Attorney General then laid two new charges: one for a libel on himself and the other for a disrespectful reference to a judge. The jury convicted Collins on the first charge and the judge sentenced Collins to one year in gaol, a fine of £50, and sureties of £600 for good behaviour for three years — a sentence widely condemned as out of all proportion to the offence.⁵⁹

Records Relating to Criminal Law

For British law (which applied in Upper Canada unless explic–itly revoked by an Upper Canadian statute), your best source is Blackstone’s Commentaries:

Blackstone, Sir William. Commentaries on the Laws of England, 4 Volumes, First Edition. Oxford: Clarendon Press, 1765–1769. This is available online in several places, my preference being: avalon.law.yale.edu/subject_menus/blackstone.asp

For Upper Canadian law (modifications to British law) see:

The Statutes of the Province of Upper Canada [1792–1831]:Together With Such British Statutes, Ordinances of Quebec, and Proclamations, as Relate to the Said Province. Revised and printed for, and published by Hugh C. Thomson and James Macfarlane. Revised by James Nickalls, Jr. Kingston: Printed by Francis M. Hill, 1831 (privately printed, but taking the place of an autho–rized publication).

The Statutes of Upper Canada, to the Time of the Union. Revised and published by authority. Toronto: Robert Stanton, Printer to the Queen’s Most Excellent Majesty, [c. 1843].

Harrison, Robert A. A Digest of Reports of all Cases Determined in the Queen’s Bench and Practice Courts for Upper Canada from 1823 to 1851 Inclusive [microform]: Being From the Commencement of Taylor’s Reports to the End of Vol. VII Upper Canada Reports, [Cameron’s digests included]: With an Appendix Containing the Digests of Cases Reported in Vol. VIII Upper Canada reports 1852. H. Rowsell (Canadian Institute of Historical Microreproductions (CIHM), fiche 10817).

For municipal laws, see the minutes of council and published by-laws of the relevant town/city, usually held in local archives.