The International Cooperation Group

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THE EVOLUTION OF JUVENILE JUSTICE IN CANADA

1 JUVENILE JUSTICE BEFORE 1908

The evolution toward a distinct regime for young offenders has been a long one. It will be useful to view the current Canadian system within the social and historical contexts of its development[1].

The doli incapax defence, "the incapacity to do wrong", was developed under English common law. A child under the age of seven was deemed incapable of committing a criminal act. This same immunity from prosecution was extended to children aged seven to thirteen inclusive, but the presumption of incapacity could be rebutted by establishing that the child had sufficient intelligence and experience to know the nature and consequences of the conduct and to appreciate that it was wrong. Thus, while the doli incapax defence afforded certain protections to children, it could not be applied in every case. As a final result, children who were convicted faced the same penalties as did adult offenders, including hanging and incarceration in prisons for adults.

Because of the nature of the developing society in early Canada, an unusually high percentage of children were at risk for delinquency. Up to the turn of the nineteenth century and even into the early years of the twentieth century, large numbers of orphaned, neglected or abused children could be found in many communities. An immediate cause for this situation was the means of travel on which the country's growth depended. Before the advent of steamships, the sailing-time from Europe was about two and a half months. The long voyage, overcrowded ships and disease all took a heavy toll, and many children who had embarked with their parents arrived in the new world as orphans. One shipload of 100 colonists coming from France in the mid-seventeenth century lost 33 of their number during the voyage and shortly after their arrival. A ship that landed in Halifax in 1752 had eight orphans on board whose parents had died during the voyage ; additional deaths — no doubt all due to shipboard ailments — soon increased this number to fourteen.

Another source for children at risk was the special social conditions of every military garrison to be found at every major settlement. In a 1761 report, Jonathan Belcher, the Acting Governor of Nova Scotia, made a special note of the number of children who had been deserted by their parents due to the great concourse of dissolute abandoned women, the regular followers of the Camp, Army and Navy. As settlement progressed, the number of children at risk only worsened because of public health and social problems. For example, between 1832 and 1834 a single agency cared for 535 orphans in the town of York, which later became Toronto. Soon after, in the greatest public health crisis in Canada's history, the Irish famine immigration brought fresh waves of orphaned children during the mid-1840s. The ranks of the Irish immigrants were decimated by typhus, and one estimate suggested that the epidemic had left 500–600 orphans in Montreal alone.

Significant numbers of young people immigrated to Canada on their own or were sent by agencies or the criminal courts. New France attracted the younger sons of well-to-do French families. They were sometimes troublesome youths who had been sent over to carve out a career in Canada. For a long time, the colonies were also the dumping grounds for society's unwanted members, ranging from criminals to poor and abandoned children. The inhabitants of slums, jails, poorhouses and orphanages were often shipped to the colonies, frequently as indentured servants. A 1684 report from Quebec tells of 60 indentured servants who had been sent from France that year ; the oldest was 16, and most were between 12 and 15 years old. The export of children continued into the early years of the twentieth century. For example, between 1873 and 1903 over 95,000 children came to Canada under the sponsorship of British child immigration agencies.

There was thus a very wide pool of children at risk, since the youth population as a whole was large, and orphaned, neglected and abandoned children were plentiful across the country. Unfortunately, surviving court records are not sufficiently detailed to permit a formal assessment of contemporary rates of delinquency. Nevertheless, there is no question that youth crime was common and ranged widely from petty theft and vandalism to murder. Throughout the history of New France, young people broke the law. However, the general level of delinquency appears to be low, and documented crimes consist primarily of vandalism, petty theft, acts of immorality, the breaking of local ordinances, the abandonment of indentured service contracts, brawling and swearing. But there were also isolated incidents of more serious crimes. For example, in 1672 a 13-year-old girl helped her parents murder her husband. She had married the man when she was 12, against her will. When he turned out to be a heavy drinker and violent, she persuaded her parents to help her get rid of him.

Abortion and infanticide were also regarded as serious offences and, on occasion, were committed by teenage servant girls. Servants who became pregnant were frequently dismissed and had great difficulty in finding either re-employment or a husband. The pressure was therefore great to have an abortion rather than bear social stigma and economic hardship.

Possibly the most widespread source of juvenile delinquency in the eighteenth and early nineteenth centuries was to be found in the fur trade, which often engaged teenage boys. The business was a lucrative one, and offered many farm boys an easy opportunity to supplement their regular livelihood. A feature of the fur trade was the use of liquor as a medium of exchange with the natives. Apart from its use as currency in fair payment for goods, liquor was often used to separate the natives from their furs without compensation. The volatile combination of fierce competition for furs together with the generous consumption of liquor created a situation wherein theft, assault, brawls and murder were common features. Consequently, teenage boys often became involved in the harsh dealing to which the fur trade regularly exposed them.

The patterns of delinquency early established in New France were replicated in English Canada as settlement spread. Most juvenile crime was petty in nature but interspersed with some serious offences. For example, most of the 300 young people put in prison in New Brunswick over the period 1846–1857 were convicted of drunkenness, theft and vagrancy. The High Bailiff's report for Toronto for the months of February to December 1847 listed 39 convictions of teenage boys. Their crimes included larceny, assault, trespass and disorderly conduct. A similar pattern can be seen in the records from Halifax's Rockhead Prison for the period from April to December 1860. The 53 young people incarcerated during that period were convicted of crimes such as assault, being drunk and disorderly, vagrancy, larceny and vandalism. On occasion, however, young people showed they were capable of serious crime. In 1843 Grace Marks, a 16-year-old servant girl working on a farm outside Toronto, helped a male servant murder the housekeeper and their employer. In 1849 an 11-year-old adopted boy living on a farm in the County of Peterborough hacked his 5-year-old adopted sister to death with a hoe because of jealousy of the attention paid to the little girl by the adoptive parents.

By the late 1860s, juvenile delinquency had long since taken on certain distinguishing characteristics. Much of the crime was minor in nature ; it was manifested in urban more than in rural areas ; and boys committed crime in larger numbers than girls. The one common denominator among many young offenders was parental neglect. In any large community young boys and girls were to be found loitering around the streets, idle, neglected and undisciplined. Many children suffered from a lack of proper diet, malnutrition, unsanitary living conditions, drunken and dissolute parents and inadequate or no medical care. Parental neglect also contributed to such personal and social problems as truancy, lack of interest in schooling, mental and emotional difficulties, and crime.

The treatment of delinquents

As befits a country founded by immigrants, the treatment of delinquent children in early Canada was based upon the attitudes, customs and laws that prevailed in the mother countries of France and England, subject to modification under the special circumstances and realities of a pioneer society. In both the old countries and the new colonies, childhood was considered to be a very short step on a direct path to adulthood. Throughout the seventeenth and eighteenth centuries, childhood ended at a young age. Life in general was harsh for everyone, and little effort was made to make it easier for children. Children were expected to accept the difficulties of life very early on, and to take on the responsibilities of adults as soon as possible. They were in fact considered as little adults. The brutality of the parents was paralleled by the brutality of the state. In eighteenth century England, according to law and custom, the child was held to be adult if above the age of seven, and therefore responsible for his crimes. Up to 1780, the penalty in England for over two hundred offences was death by hanging, and many children were hanged for trivial offences. There are, in fact, instances recorded of children younger than seven being executed[2]. In Canada, children were subject to the ever-pressing physical demands of a primitive and struggling society. They were expected to share the burden of survival. Part of their importance was that they provided hands for the many tasks necessary simply to subsist. Consequently, the behaviour of children was governed by adult standards. This view applied in matters of crime. The prevailing attitude held that a juvenile delinquent was simply a miniature criminal. Accordingly, the punishments that English courts prescribed for children seem excessively harsh by any modern standard. For example, in one session in London's Old Bailey court in February 1814, five children — one eight years old, one nine, one eleven and two twelve — were sentenced to death for burglary and stealing a pair of shoes.

These and other old-world beliefs and attitudes, together with the laws they gave rise to, were carried to the new world by the immigrants. It is therefore no surprise to find that strict standards governed many aspects of children's lives. These were the standards not only of the law but also the church. The Roman Catholic Church was a highly influential body in New France. Its precepts regulated sexual practices, dress, language and many other aspects of life for both young and old. The church even influenced the law, which took up matters of morality and formally prohibited a variety of offences, such as swearing.

Penal practices and conditions in New France were harsh. On 19 January 1649 a young girl of 15 or 16 was hanged for theft in the town of Quebec. Punishments were freely handed out for every type of infraction. For swearing a person could be fined or put in detention. Repeat offenders could be put in an iron collar and subjected to public ridicule, while chronic recidivists could have their lower lip cut. Those put in jail were given a diet of bread and water. Jails were poorly ventilated, humid in the summer and cold in the winter. In 1686 Governor Denonville reported having to cut the feet off certain prisoners in Quebec for purely medical reasons : they had developed gangrene from the cold. Sentencing was given little uniformity by either principle or practice, and severe punishments were handed out for both major and minor crimes.

To discourage servants from breaking their service contracts, authorities in 1676 announced that offenders, many of whom were teenage girls, would be put in an iron collar. For a second offence, the servant would be beaten with rods and branded with the fleur-de-lis. Juveniles were also kept in detention for their crimes. André Lachance, in a study of female crime in New France between 1712 and 1759, tells of a 13-year-old girl being confined for three months and a 14-year-old female being held for six years[3].

While many children were subjected to harsh punishments, justice was frequently tempered with mercy. The governing councils in New France sometimes set aside sentences and reduced the punishments handed down by the courts. For example, instead of executing children who committed crimes normally punishable by death, it was customary to whip them. In a case tried in Quebec in the summer of 1695, a mother and daughter were jointly convicted of theft. While the mother was put in the pillory to be ridiculed in the public square, the girl was let off by the council with a reprimand.

Punishments for juvenile offenders in both English and French Canada were a mixture of harsh laws, severe retribution and justice tempered with mercy. It was generally established that children under seven, regardless of the crime, could not be punished because they were not yet capable of discerning the nature of their acts. It was also common, in the case of offenders up to the age of 14, to withhold severe penalties except when justified by special circumstances. In practice, however, these guidelines were not always observed or uniformly applied. As a result, justice was uneven, and many children were subjected to treatment that was harsh in the extreme.

Whipping of young offenders was a common practice, especially in communities without jails. In some cases, juveniles were punished with the whip instead of incarceration. Although Halifax by 1815 had a jail together with a courthouse and a regular police court, juvenile offenders frequently received the straightforward physical chastisement of 39 lashes at the public whipping post. Parsimonious public officials preferred corporal punishment to detention since it avoided the use of public funds to provide board and lodging.

Across the country as more communities built jails, young offenders were either whipped or incarcerated, or sometimes both. When jailed, they were mixed indiscriminately with adults and shared the same cells as drunks, prostitutes, hardened criminals, the indigent and the mentally ill. The physical facilities themselves, once built and in operation, were of little concern. They quickly became run down and neglected. They were too hot in summer and too cold in winter. Jailers could be cruel, the food was both inadequate and poor, bedding was scarce, and laundry and hygiene were neglected. Prisoners spent their time either in idleness or in performing extremely hard labour. For young and old alike, justice continued to be uneven and, on occasion, out of all proportion to the offence. In 1813, for example, a 13-year-old boy was hanged in Montreal for stealing a cow.

As the population grew and more jails were built, children continued to be incarcerated with regularity. Even when Upper Canada (as the province of Ontario was then known) opened its first prison at Kingston in 1835, authorities did not hesitate to commit the young to confinement. Most sentences at Kingston Prison ranged from one to six years. They often lacked uniformity : for a crime such as grand larceny one person might be committed for a year while another might be sentenced to five years. Significant numbers of young boys were sent to Kingston. In 1839 the records listed 6 boys between 12 and 15, and 24 between 16 and 20. The attitude of the warden in his report for that year no doubt reflects the prevailing view of other officials of the day. He recommended that convicts released from prison be sentenced to life if they committed another crime.

This prison, the first — as opposed to a jail — to be established in Upper Canada, was far from a model institution. The problems in its operation and administration were so numerous that the government in 1848 appointed a commission headed by George Brown, publisher of the Globe newspaper, to investigate. The Brown Commission submitted its report in 1849 and documented a variety of serious problems, especially the extreme practices in punishment, which made no distinction between juveniles and adults in either the men's or women's sections of the prison.

Punishments were meted out frequently for simple disciplinary offences, often of the most innocuous kind, and whippings were administered before an assembly of the inmates. One 10-year-old boy, committed on 4 May 1845 for a seven-year term, was publicly lashed 57 times in the space of eight and a half months. His offences were staring and laughing, which although in contravention of prison rules, were normal behaviour for a boy of that age. An eight-year-old child, admitted on 7 November 1845 for a three-year term, received the lash within the first week of his arrival. Over a nine-month period he was similarly punished 47 times. An 11-year-old French-Canadian boy received 12 lashes on Christmas Eve 1844 for speaking French.

In the prison's female quarters young girls experienced similar treatment. The records show that one 14 year-old was whipped seven times in four months, while a 12 year-old was similarly punished five times over another four-month period. Both boys and girls were sentenced to the same terms as adults for the various crimes, and in prison they were subject to the same rules and conditions. At the time of the Brown Commission investigation, three children under 12, including one eight year-old, and 12 under 16 were serving time in Kingston Prison.

Children for some time continued to be put in jails and prisons across the country, and they endured the same treatment and foul conditions that characterised the criminal justice system as a whole. As the population and the number of settlements increased across the country, so did the incidence of youth crime. More children were brought before the courts and sent to jail. However, as soon became apparent, this form of punishment was accomplishing very little. Rather, many juveniles were corrupted by older offenders, and instead of being turned away from crime, returned to society schooled in the latest lawbreaking techniques. As a result, many young people went on to more serious offences following their incarceration and, all too often, ended up back in jail.