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 who should go to the gallows and who should be spared.
When someone was convicted of a capital crime, the presiding judge was required to submit a detailed report to the minister of justice in Ottawa. The federal Cabinet and officials of the Department of Justice would review the case. At the end of this sometimes lengthy process, Cabinet would make the ultimate decision on what sentence to impose. If they resolved that the law “be allowed to take its course,” an Order-in-Council was issued instructing the local authorities to proceed with the execution.
According to author and historian Carolyn Strange, “condemned persons’ chances of commutation were clearly linked to assumptions about the dangerousness of certain criminals and the culpability of various categories of offenders, as well as to public anxieties about changing rates of criminal violence.” And what swayed the Cabinet’s opinions at one time could have the opposite effect at another, tilting the balance for, or against, the condemned person. Indigenous peoples (that is, First Nations, Métis, and Inuit peoples), for example, were initially treated leniently, but as time passed, racial paternalism evaporated, especially if white people were in the gunsights.
Take the case of the Copper Inuit living on the shores of Coronation Gulf in the Arctic. In 1916, two Inuit men named Sinnisiak and Uluksuk were arrested for the murder of two French missionaries. They were initially tried in Edmonton in 1917 and acquitted, then retried in Calgary and convicted of murder. Their sentences were immediately commuted to life imprisonment. In 1919, the men were released and returned to the Arctic. This leniency was aimed to teach the Inuit people about Canadian law and to “Canadianize” them. If the Inuit were to kill again, they would have to suffer the consequences.
And the consequences proved to be harsh. In 1922, a young Inuit named Alikomiak, arrested with his uncle Tatamigana for the killing of an Inuit man and a baby, shot a Royal Canadian Mounted Police corporal whom he believed had insulted him. Later the same day, he shot a Hudson’s Bay Company man.
Killing whites? Strategically acceptable to the Canadian authorities in 1917, but no longer tolerated in the 1920s. “As kindness has failed in the past I strongly recommend that the law should take its course and those Eskimos found guilty of murder should be hanged in a place where the natives will see and recognize the outcome of taking another life,” thundered T.L. Cory, commissioner of the Northwest Territories.
In 1923, Alikomiak and Tatamigana were tried at Herschel Island in the Yukon Territory. Since trial court officials brought along with them an executioner and