and the action moved into a court of law, writes Ken Leyton-Brown, counsel for the Crown and the defence conducted interviews to choose the six- to twelve-member jury. Jurors were supposed to represent the public, but this was generally not the case. Women, or First Nations people for that matter, could be victims or murderers. But never jurors.
In court, the judge, invariably a man, became the most powerful player in the game. Inspiring fear and respect, he swept into the courtroom in his black robes at the beginning of a trial. Everyone rose, and he took his seat on a special raised platform, dominating the room.
Guided by the judge, the jury would weigh the evidence, decide whether the accused was guilty of murder beyond a reasonable doubt (or of the less serious crime of manslaughter, or not guilty), and deliver a verdict. Jurors played a supporting role right up to the dying moments of the trial, when the jury foreman stepped forward on their behalf to deliver his one and only speaking line: “Your Honour, we find the accused guilty as charged,” or, for the lucky ones, “not guilty.”
The jury’s decision was most often driven by the judge’s charge after all the evidence had been presented by the lawyers for the prosecution and the defence. This was an important step, notes Leyton-Brown, especially in difficult cases or where the law was complicated. The judge was generally very fair, but he sometimes made his opinions, positive or negative, crystal clear to the jury. In 1904, George William Gee of Woodstock, New Brunswick, was accused of murdering his young cousin and one-time girlfriend, Millie Gee, by shooting her twice in the side. In his review, a stern Chief Justice Tuck ordered the jury: “Don’t, gentlemen, allow any mock sympathy to hinder you in rendering your verdict. Now go and do your duty.” Are you surprised that the jury found Gee guilty?
As they usually knew that the accused would be hanged if found guilty, juries often struggled with returning this grim verdict. They sometimes hesitated to convict youths or people with families. Complicating this might be uncertainty about the identity of the perpetrator and scanty or largely circumstantial evidence — these and other factors made the jury leery of accepting someone’s guilt beyond a reasonable doubt. When they felt particularly unsure, they exercised the option of recommending mercy. In one remarkable case in 1923 in Montmagny, Quebec, farmer Gustave Dubé was found guilty of shooting his wife. The jurors were horrified when they realized this meant the death penalty. They recanted, protesting that they thought the charge was manslaughter. Perhaps subscribing to the principle that ignorance of the law is no excuse, the judge refused to budge and Dubé went to the gallows.
As with modern cases, the judge’s role was to decide whether evidence was admissible or inadmissible, interpret the law, and guide the jury’s decisions. In capital cases prior to 1976, however, there was one notable addition. With a guilty verdict, the judge’s final act was to deliver the death sentence. He would sweep out of the court, only to return immediately, to even more fear and respect, wearing a black cap upon his head and sometimes black gloves as well. As Leyton-Brown points out, these theatrics and rituals at the time of sentencing — cap, gloves, and the set wording of the death sentence itself — came to Canada, like most other court routines, courtesy of the mother country, Britain. They were all designed to underline the power and majesty of law and state.
Often the judge would lash out in his final address to the prisoner. In 1878, Michael Farrell, a violent man much feared in Ste-Catherine, Quebec, shot and killed a neighbour who was using a right-of-way through Farrell’s property, in full view of the neighbour’s children. As reported in the Quebec Saturday Budget , Justice Monk had this to say: “I cannot immagine [sic ] how a man of your position and intelligence could possibly have conceived and carried out so terrible a crime. I will not recall to your recollection the horrible, sanguinary scene which took place, when you slew your victim in the presence of his little children and his friends, and slew him as you did, prisoner, without any provocation.” According to the paper, Monk was very much more distressed than the condemned man, who sat calm and stone-faced throughout the judge’s address.
Who would live and who would be condemned to death by judge and jury? The answer was often unpredictable. Take the opinion of Simcoe County’s Sheriff Drury on two of the murder trials he oversaw. The first was the case of the eighteen-year-old Indigenous youth accused of stabbing a night watchman. The defence tried to prove that “he was mentally dull and perhaps retarded,” but the judge and jury were hostile. The youth was sentenced to death, with no recommendation for mercy. The second case was that of two young men, also eighteen or nineteen years old, who shot, threw into a swamp, then shot again — this time to death — an older man who had made sexual advances to them. They were soon arrested and tried in Barrie, Ontario. The jury found them guilty of manslaughter, not murder, and the judge gave them less than the maximum sentence.
As Drury wrote of both cases in his memoirs:
The savage nature of the young Indian’s crime, which might reasonably have been taken to indicate mental instability and thus serve as an argument for clemency, quite evidently predisposed both judge and jury against the prisoner. I wonder if they had read stories of Indian massacres? In the second case, clearly a deliberate and cold-blooded murder, the youth of the prisoners, the squalor of their environment, and above all the existence of the death penalty, just as evidently predisposed judge and jury in their favour.
Once the trial was over, prisoners were generally sent to the local prison to await execution. They were segregated in a special section called death row and kept under constant surveillance. Although physically restricted, every condemned person was allowed unlimited access to a spiritual advisor, generally a Christian minister.
The minister taking care of the spiritual needs of inmates at the Don Jail in Toronto, Ontario, in the early 1960s was Salvation Army chaplain Cyril Everitt. “I will see you in heaven,” Everitt said to Ronald Turpin and Arthur Lucas as the two men stood on the scaffold at the Don Jail just after midnight on December 11, 1962. Moments later, they dropped through the trap door together, the last ever to hang in Canada. In their final days on death row, as their appeals sputtered and died, Everitt visited them two or three times a day to cheer them up and pray with them. What was rare in this case, as Robert Hoshowsky points out in his book on Turpin and Lucas, The Last to Die , was Everitt’s deep affection for his charges: he visited their graves for many years after they died.
The public, too, became invested in the spiritual well-being of prisoners on death row. The burning questions were: Would those doomed to die be redeemed? Would they in some way repent for the error of their ways? In religious terms, what society wanted more than anything was for evildoers to be saved from sin.
What society also desperately wanted was for evildoers to confess. As noted by Leyton-Brown, this would remove any last lingering doubt about whether justice had been done, or whether police, prosecutors, judges, jurors, and sheriffs had been complicit in sending an innocent person to the grave.
Best of all was repentance and confession together. Robert Neil, hanged in Toronto for the stabbing death of a prison guard, as reported in the Toronto Daily Mail on February 29, 1888, stood beneath the crossbeam of the gallows and said in a firm, clear voice, “Now I am here I would like to say I did not mean to kill that man.… I forgive everyone and hope to be forgiven.” A rough arrow scratched on a wall at the Don Jail marked his grave.
Of course, things didn’t always end as neatly as the public would have liked. Michael Farrell, the Quebecer found guilty of killing his neighbour in 1878 for using a right-of-way through his property, made a confession in court when sentence was passed: “That man had liberty as well as any other to pass by that road, as long as he fastened up the gap after him.… If he had put up the fence after him he would have been alive today, and I would not have been here.” In reporting his words, the Quebec Saturday Budget commented with horror and sadness on Farrell’s “apparent unconcern and vindictiveness.”
Government officials also had an essential role to play in deciding
