may sentence the offender to such additional term of imprisonment or detention, as the case may be, not exceeding one year, as to such magistrate seems a proper punishment for the escape or attempt to escape. R.S.C. 1906, ch. 148, sec. 24.

Escape during conveyance to prison.]-See Prisons Act, R.S.C. 1906, ch. 148, sec. 35 (2).

Escape of prisoner at work outside of prison.]—See Prisons Act, R.S.C. 1906, ch. 148, sec. 21.

190. Every one is guilty of an indictable offence and liable Escape from to two years' imprisonment who being in lawful custody other custody. than as aforesaid on any criminal charge, escapes from such custody. 55-56 V., c. 29, s. 164.

191. Every one is guilty of an indictable offence and liable Penalty. to seven years' imprisonment who,

tenced to

(a) rescues any person or assists any person in escaping, or Rescue of attempting to escape, from lawful custody, whether in person senprison or not, under sentence of death or imprisonment for death or for life, or after conviction of, and before sentence for, or life. while in such custody upon a charge of any crime punishable with death or imprisonment for life; or,

escape.

(b) being a peace officer and having any such person in his Officer lawful custody, or being an officer of any prison in which permitting any such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom. 55-56 V., c. 29, s. 165.

Rescue.]-Rescue is the deliverance of a prisoner from lawful custody by a third person. 2 Bishop Crim. Law 893. It differs from prison breach only in this that prison breach is by the prisoner himself, while rescue is by another. Escape is the allowing, voluntarily or negligently, of a prisoner lawfully in custody to leave his confinement, and the same term is also used to denote the offence of a prisoner himself going away from the place of custody without a breaking of prison. 2 Bishop Crim. Law 893.

The rescuer, where the prisoner concurs in the rescue, is an aider at the fact, and therefore a principal in the prisoner's offence of prison breach. 1 Bishop Crim. Law 456.

The act of breaking with intent to let the prisoner escape may not be a technical rescue unless he does escape, but it is nevertheless indictable as an attempt. 2 Bishop Crim. Law 915; State v. Murray, 15 Maine 100.

Aiding escape.]-By the common law any assistance given to one known to be a felon in order to hinder his being apprehended or tried or suffering the punishment to which he was condemned, was sufficient to make the person giving such assistance an accessory after the fact to such felony. 2 Hawk., ch. 29, sec. 26. And the aiding and assisting any prisoner to escape out of prison by whatever means it may have been effected or whatever was the nature of the offence with which such prisoner was charged, was viewed as an offence indictable as an obstruction to the course of justice. I Gabbett's Cr. Law 297, 303.

Penalty.

Rescuing or assisting to escape in

other cases.

Officer permitting escape in

other cases.

Escape by failure to perform legal duty.

192. Every one is guilty of an indictable offence and liable to five years' imprisonment who,

(a) rescues any person, or assists any person in escaping or attempting to escape, from lawful custody, whether in prison or not, under a sentence of imprisonment for any term less than life, or after conviction of, and before sentence for, or while in such custody upon a charge of any crime punishable with imprisonment for a term less than life; or,

(b) being a peace officer having any such person in his lawful custody, or being an officer of any prison in which such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom. 55-56 V., c. 29, s. 166.

193. Every one is guilty of an indictable offence and liable to one year's imprisonment, who, by failing to perform any legal duty, permits a person in his lawful custody on a criminal charge to escape therefrom. 63-64 V., c. 46, s. 3.

Negligent or voluntary escape.]-Wherever an officer having the custody of a prisoner charged with a criminal offence, knowingly gives him his liberty with an intent to save him either from his trial or punishment he is guilty of a "voluntary escape." 2 Bishop Crim. Law 920.

This formerly involved the officer in guilt for the same crime of which the prisoner was guilty and stood charged with. 2 Hawk., ch. 19, sec. 10.

A "negligent escape" is where the party arrested or imprisoned escapes against the will of him that arrests or imprisons him and is not freshly pursued and taken again before he has been lost sight of. Dalt., ch. 159, sec. 6.

A prisoner who is charged before justices with an indictable offence and who is verbally remanded, after the examination of witnesses, until the following day in order to procure bail or, in default, be committed, is not in the custody of the officer merely for the purpose of enabling him to procure bail, but under the original warrant, and the officer is liable to conviction if he negligently permits him to escape. R. v. Shuttleworth, 22 U.C.Q.B. 372.

Presumption.]-So strongly does the law incline to presume negligence in the officer where an escape occurs, that though such prisoner should break jail yet it seems that it will be deemed a negligent escape in the jailer, because it will be attributed to a want of due vigilance in the jailer or his officers. 1 Hale 601. But the presumption of default in the jailer in cases of escape may be rebutted by satisfactory proof that all due vigilance was used and that the jail was so constructed as to have been considered by persons of competent judgment a place of perfect security. 1 Russ. Cr. 371; 2 Bishop Cr. Law 921.

De facto officer.]—Whoever de facto occupies the office of jailer is liable to answer for a negligent escape, and it is not material whether or not his title to the office be legal, for the ill consequence to the public is the same in either case. 2 Hawk., ch. 19, sec. 23.

Arrest by private person.]—Wherever any person has another lawfully in his custody, whether upon an arrest made by himself or another, he is

guilty of an escape if he suffers him to go at large before he has discharged himself by delivering him over to some other who by law ought to have the custody of him. 2 Hawk., ch. 20, sec. 1; 1 Hale 595.

194. Every one is guilty of an indictable offence and liable Escape by to two years' imprisonment who with intent to facilitate the conveying things into escape of any prisoner lawfully imprisoned conveys, or causes prison. to be conveyed, any thing into any prison. 55-56 V., c. 29, s. 167.

195. Every one is guilty of an indictable offence and liable Causing disto two years' imprisonment who knowingly and unlawfully, charge of prisoner under colour of any pretended authority, directs or procures under prethe discharge of any prisoner not entitled to be so discharged, tended and the person so discharged shall be held to have escaped. authority. 55-56 V., c. 29, s. 168.

196. Every one who escapes from custody, shall, on being Full term to retaken, serve, in the prison to which he was sentenced, a term be served equivalent to the remainder of his term unexpired at the time taken. of his escape, in addition to the punishment which is awarded

for such escape.

when re

2. Any imprisonment so awarded may be to the penitentiary Place of ador prison from which the escape was made. 55-56 V., c. 29, ditional ims. 169.

prisonment.

9-CRIM. CODE.

PART V.

OFFENCES AGAINST RELIGION, MORALS AND PUBLIC
CONVENIENCE.

Definitions. "Theatre.'

'Guardian.'

'Public place.'

Blasphemous libels.

Question of fact. Proviso.

Interprètation.

197. In this Part, unless the context otherwise requires,— (a) 'theatre' includes any place open to the public, gratuitously or otherwise, where dramatic, musical, acrobatic or other entertainments or representations are presented or given;

(b) 'guardian' includes any person who has in law or in fact the custody or control of any girl or child referred to; (c) 'public place' includes any open place to which the public have or are permitted to have access and any place of public resort. 57-58 V., c. 57, s. 1; 63-64 V., c. 46, s. 3; 3 E. VII., c. 13, s. 2.

Offences Against Religion.

198. Every one is guilty of an indictable offence and liable to one year's imprisonment who publishes any blasphemous libel.

2. Whether any particular published matter is a blasphemous libel or not is a question of fact: Provided that no one is guilty of a blasphemous libel for expressing in good faith and in decent language, or attempting to establish by arguments Expression used in good faith and conveyed in decent language, any of opinion. opinion whatever upon any religious subject. 55-56 V., c. 29, s. 170.

Blasphemy.]-Blasphemy consists in "speaking evil of the Deity with an impious purpose to derogate from the divine majesty and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning God, calculated and designed to impair and destroy the reverence, respect and confidence due to him as the intelligent creator, governor and judge of the world. It embraces the idea of detraction, when used towards the supreme being as "calumny" usually carries the same idea when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence or his attributes as an intelligent creator, governor and judge of men, and to pre

vent their having confidence in him as such." Commonwealth v. Kneeland, 20 Pick. 106, 213, per Shaw, C.J.; 2 Bishop Cr. Law 69.

It is to be collected from the offensive levity, scurrilous and approbrious language, and other circumstances, whether the act of the party was malicious. 2 Bishop Cr. Law 74; Updegraph v. Commonwealth, 11 S. & R. 394, 405.

Blasphemous libel.]—Publications which in an indecent and malicious spirit assail and asperse the truth of Christianity or of the Scriptures in language calculated and intended to shock the feelings and outrage the belief of mankind are punishable as blasphemous libels. R. v. Bradlaugh, 15 Cox C.C. 217; R. v. Hetherington, 4 St. Tr. (N.S.) 563, 590; R. v. Pelletier (1900), 6 Revue Legale, N.S. 116. But if the decencies of controversy are observed even the fundamentals of religion may be attacked without the writer being guilty of blasphemous libel. R. v. Ramsay & Foote, 15 Cox C.C. 231, 238, 1 Cab. & El. 126; Odgers' Libel, 3rd ed., 466.

Defence.]-No justification of a blasphemous libel can be pleaded nor is argument as to its truth permitted. Cooke v. Hughes, Ry. & M. 112; R. v. Tunbridge, 1 St. Tr. (N.S.), 1168; R. v. Hicklin, L.R. 3, Q.B. 360. The application of secs. 910 and 911 of the Code as to pleas of justification is limited to cases of defamatory libels.

199. Every one is guilty of an indictable offence and liable Obstructing to two years' imprisonment who, by threats or force, unlaw- officiating clergyman. fully obstructs or prevents, or endeavours to obstruct or prevent, any clergyman or other minister in or from celebrating divine service, or otherwise officiating in any church, chapel, meetinghouse, school-house or other place for divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place. 55-56 V., c. 29, s. 171.

Status of clergyman.]-The offence of unlawfully obstructing divine service under Code sec. 199 is not made out where the clergyman obstructed had no legal claim to the possession of or use of the church premises and was in point of law himself a trespasser thereon. But an indictment for obstructing a clergyman in celebrating divine service will not be quashed for failure to allege therein that the clergyman was in lawful charge of the church or place of worship. R. v. Wasyl Kapij (1905), 9 Can. Cr. Cas. 186.

clergyman.

200. Every one is guilty of an indictable offence and liable Violence to to two years' imprisonment who strikes or offers any violence officiating to, or arrests upon any civil process or under the pretense of executing any civil process, any clergyman or other minister who is engaged in or, to the knowledge of the offender, is about to engage in, any of the rites or duties in the last preceding section mentioned, or who, to the knowledge of the offender, is going to perform the same, or returning from the performance thereof. 55-56 V., c. 29, s. 172.