Disturbing meetings for religious worship or special pur

poses.

Buggery.

201. Every one is guilty of an offence and liable, on summary conviction, to a penalty not exceeding fifty dollars and costs, and in default of payment to one month's imprisonment, who wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behaviour, or by making a noise, either within the place of such meeting or so near it as to disturb the order or solemnity of the meeting. 55-56 V., c. 29, s. 173.

Disturbing religious meetings.]-A person who enters a hall, leased by a religious association or body, while a meeting for religious worship is being held in it under the direction of officers of the association, and addressing himself to the assemblage, says he is a Catholic and a French Canadian, as most of them are, that they should not stay where they are, and calls upon them to leave, is guilty of the offence of disturbing a religious meeting under Cr. Code sec. 201. The King v. Gauthier, 11 Can. Čr. Cas. 203.

At common law.]-Anv disturbance of a congregation legally assembled for divine service is an indictable offence at, common law. 1 Hawk., ch. 28, sec. 23; Wilson v. Greaves, 1 Burr. 243.

Evidence.]-Where in a contest for the office of clerk of a congregation, one of the candidates pulled the other from the desk, it was held that such constituted a disturbance within a corresponding English statute. R. v. Hube, 5 T.R. 542, 2 R.R. 669.

Meeting for social purpose, etc.]-A meeting of electors called by one of the candidates during a municipal election is not included. The King v. Lavoie, 6 Can. Cr. Cas. 39, 21, Que. S.C. 128.

Offences Against Morality.

202. Every one is guilty of an indictable offence and liable to imprisonment for life who commits buggery, either with a human being or with any other living creature. c. 29, s. 174.

55-56 V.,

Buggery.]-This offence, also called sodomy, is the carnal copulation against nature by human beings with each other or with a beast. 1 Bishop Cr. Law 380. There must be a penetration per anum. Archbold Cr. Plead. (1900), 879. A penetration of the mouth is not sodomy; Rex v. Jacobs, Russ. & Ry. 331; but is an offence under sec. 206. Unlike rape, sodomy may be committed between two persons, both of whom consent, and even by husband and wife. R. v. Jellyman, 8 C. & P. 604. Whichever is the pathic, both may be indicted. R. v. Allen, 1 Den. C.C. 364; 2 C. & K. 869.

Evidence.]—The common law presumption is, that a person under fourteen is incapable of having carnal knowledge, not merely that such a person is incapable of committing rape. It is because of the presumption, so understood, that a person under fourteen cannot be convicted of rape. The report of the case of The Queen v. Allen, 1 Dennison Cr. Cas. 364, shews that the presumption applies to cases of unnatural crime. R. v.

Hartlen (1898), 2 Can. Cr. Cas. 12 (N.S.). Penetration alone is now sufficient to constitute the offence. Section 7.

Evidence is not admissible to prove that the defendant has a general disposition to commit the offence. R. v. Cole, 3 Russ. Cr., 6th ed., 251. Form of indictment.]—“The jurors, etc., present that J. S. on the day of at the Iwith a certain (animal), or, in and upon one J.N.], unlawfully wickedly and against the order of nature had a venereal affair, and then unlawfully, wickedly and against the order of nature with the said did commit and perpetrate that detestable and abominable crime of buggery, not to be named among Christians, against the form of the Criminal Code, sec. 174, and against the peace, etc."

Excluding public from court room.]-See sec. 645.

Assault with intent.]-See secs. 293 and 294.

203. Every one is guilty of an indictable offence and liable Attempt to to ten years' imprisonment who attempts to commit the offence commit. mentioned in the last preceding section. 55-56 V., c. 29, s. 175.

Excluding public from court room.]-See sec. 645.

204. Every parent and child, every brother and sister, and Incest. every grandparent and grandchild, who cohabit or have sexual intercourse with each other, shall each of them, if aware of their consanguinity, be deemed to have committed incest, and be guilty of an indictable offence and liable to fourteen years' imprisonment, and the male person shall also be liable to be whipped: Provided that, if the court or judge is of opinion. that the female accused is a party to such intercourse only by reason of the restraint, fear or duress of the other party, the Effect of court or judge shall not be bound to impose any punishment on compulsion. such person under this section. 55-56 V., c. 29, s. 176.

Incest.]-Incest was not an offence punishable at common law, but was dealt with by the English ecclesiastical courts, which had power to imprison for the offence. Stephen's Dig. Cr. Law, article 170. It included other relationships than those specified in sec. 204 of the Code and applied to unlawful intercourse between parties related to each other within the degrees of consanguinity or affinity wherein marriage was prohibited by law. 2 Bishop Cr. Law 15.

Prior to the statute, 53 Vict. (Can.), ch. 37, sec. 8, from which this section is taken, it seems that incest, unless committed under circumstances amounting to rape, was not punishable in Ontario, as the ecclesiastical law of England was not introduced into that province. Re Lord Bishop of Natal, 3 Moo. P.C.N.S. 115.

There were, however, statutes dealing with the offence in the Provinces of Nova Scotia, New Brunswick and Prince Edward Island. R.S.N.S., 3rd series, ch. 160, sec. 2; R.S.N.B., ch. 145, sec. 2; 24 Vict. (P.E.I.), ch. 27, sec. 3. Quære, whether those statutes do not still apply in those provinces as to cases of incest, for which no provision is made by sec. 176.

Evidence.]-Oral evidence is not admissible to prove relationship on a charge of incest in the Province of Quebec, and the relationship must be

Indecent

acts.

In public places.

As an insult.

established by the production of extracts from the registers of civil status, as required by the provincial laws of evidence made applicable to criminal proceedings by the Canada Evidence Act, sec. 35, unless the absence of such registers is proved. R. v. Garneau (1899), 4 Can. Cr. Cas. 69 (Que.). It is not too late for the accused to object that oral evidence is insufficient proof, after the case for the prosecution has been closed. Ibid. Excluding public from court room.]-See sec. 645.

205. Every one is guilty of an offence and liable, on summary conviction before two justices, to a fine of fifty dollars or to six months' imprisonment with or without hard labour, or to both fine and imprisonment, who wilfully,

(a) in the presence of one or more persons does any indecent act in any place to which the public have or are permitted to have access; or,

(b) does any indecent act in any place intending thereby to insult or offend any person. 53 V., c. 37, s. 6; 55-56 V., c. 29, s. 177.

At common law.]-To publicly expose the naked person was a misdemeanour at common law, R. v. Sedley, 17 St. Tr. 155(n); R. v. Rowed, 3 Q.B. 180. But an indecent exposure seen by one person only was not an offence. R. v. Farrell, 9 Cox 446; R. v. Elliott, L. & C. 103. The presence of only one other person than the accused is now sufficient under this section.

A place out of sight of the public footway, where people had no legal right to go, but did habitually go without interference, is included. R. v. Wellard, L.R. 14 Q.B.D. 63, 15 Cox C.C. 559; R. v. Levasseur, 9 Montreal L.N. 386; Ex p. Walter, Ramsay's Cases (Que.) 183.

Excluding public from court room.]-See sec. 645.

Obscene song with indecent gestures.]—A person is guilty of indecent acts within the meaning of this section, who, in a public theatre in the presence of several persons, makes indecent gestures on his person or otherwise, while singing an obscene song. The Queen v. Jourdan, 8 Can. Cr. Cas. 337.

Provincial legislative power.]-A Provincial Legislature has jurisdiction to legislate concerning matters of police regulation of public morals, but in so far as the same subject is dealt with by the Dominion Parliament, the Dominion legislation will prevail. Ex parte Ashley, 8 Can. Cr. Cas. 328.

The power of enacting such police regulations may be delegated by the Provincial Legislature to municipal councils. Ibid.

"Wilfully."]-A summary conviction for "unlawfully" committing an act does not sufficiently charge that the act was "wilfully" done to constitute an offence under a statute which makes the latter an essential eleIment of the offence. And a person who is summarily convicted on his plea of guilty upon a charge of "unlawfully" committing an indecent act and who is sentenced to imprisonment, is entitled to be discharged on habeas corpus as the commitment and conviction disclose no offence under the criminal law. The word "wilfully" as applied to the offence declared by this section implies that the act was done with evil intent and without any justifiable excuse, while the word "unlawful" does not necessarily

refer to criminal penalty or prohibition. Ex parte O'Shaughnessy, 8 Can. Cr. Cas. 136, 13 Que. K.B. 178; R. v. Tupper, 11 Can. Cr. Cas. 199.

A summary conviction for indecency under this section is bad if it does not state the offence to have been committed wilfully, but a valid conviction correcting the omission may be substituted on a habeas corpus application. The King v. Barre, 11 Can. Cr. Cas. 1.

206. Every male person is guilty of an indictable offence Acts of gross and liable to five years' imprisonment and to be whipped who, indecency. in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person. 55-56 V., c. 29, s. 178.

This section is similar in its terms to the English Criminal Law Amendment Act of 1885, 48-49 Vict., ch. 69, sec. 11. Under it, it has been held that it is an offence for a male person to procure the commission with himself of an act of gross indecency by another male person. R. v. Jones, [1896] 1 Q.B. 4, 18 Cox C.C. 207.

Excluding public from court room.]—See sec. 645.

Indecent assaults on males.]-See sec. 293.

207. Every one is guilty of an indictable offence and liable Penalty. to two years' imprisonment who knowingly, without lawful justification or excuse,

books or

(a) manufactures, or sells, or exposes for sale or to public Obscene or view, or distributes or circulates, or causes to be distri- immoral buted or circulated, any obscene book, or other printed, pictures. typewritten or otherwise written matter, or any picture, photograph, model or other object tending to corrupt morals; or,

(b) publicly exhibits any disgusting object or any indecent Indecent show; or,

show.

(c) offers to sell, advertises, publishes an advertisement of, Drugs for or has for sale or disposal, any medicine, drug, or article abortion. intended or represented as a means of preventing conception or of causing abortion or miscarriage.

2. No one shall be convicted of any offence in this section Excess. mentioned if he proves that the public good was served by the acts alleged to have been done, and that there was no excess in

the acts alleged beyond what the public good required.

3. It shall be a question for the court or judge whether the Questions occasion of the manufacture, sale, exposing for sale, publish- for judge. ing, or exhibition is such as might be for the public good, and whether there is evidence of excess beyond what the public good required in the manner, extent or circumstances in, to or under

And for jury.

Motives.

which the manufacture, sale, exposing for sale, publishing or exhibition is made; but it shall be a question for the jury whether there is or is not such excess.

4. The motives of the manufacturer, seller, exposer, publisher or exhibitor shall in all cases be irrelevant. 63-64 V., c. 46, s. 3.

,

on

unlawfully,

Form of indictment.]-That A.B., at and knowingly, and without lawful justification or excuse, did expose for sale, an obscene book called (give name or description) tending to corrupt morals.

Knowingly.]-The offence being that a person "knowingly" without lawful justification or excuse sells or distributes the obscene publication, it is obligatory upon the prosecution to prove knowledge of the contents on the part of the accused. The King v. Beaver, 9 Can. Cr. Cas. 415, 9 O.L.R. 418.

Particulars of indictment.]—By sec. 861 it is provided that no count for (inter alia) selling or exhibiting an obscene book, pamphlet, newspaper or other printed or written matter shall be deemed insufficient on the ground that it does not set forth the words thereof. But sec. 859 empowers the court to order that a particular shall be furnished by the prosecution stating what passages in such book, pamphlet, newspaper, printing or writing are relied on in support of the charge. If the obscene words complained of are in a foreign language a translation of them should be set out in the particulars. Zenobio v. Axtell, 6 T.R. 162; R. v. Peltier, 28 St. Tr. 529.

Obscenity.]"The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influence, and into whose hands a publication of this sort may fall." R. v. Hicklin, L.R. 3 Q.B. 371, per Cockburn, L.C.J.; R. v. Beaver (1905), 9 Can. Cr. Cas. 415, 9 O.L.R. 418.

The indiscriminate publication of a pamphlet, half of which relates to controversial questions which are not obscene, but the other half of which is obscene, as relating to impure acts and words, is an offence, although the publisher does not sell the pamphlet for the purposes of gain or to prejudice good morals (although the indiscriminate sale of it is calculated to have that effect), but sell it as a member of a politico-religious society, to promote the objects of that society and to expose what he deems to be the errors of the Roman Catholic church and the immorality of the confessional. R. v. Hicklin, supra; Steele v. Brannan, L.R. 7 Č.P. 261; note in 9 Can. Cr. Cas. 424.

Indecent show.]-A herbalist, who publicly exposed in his shop a picture of a man naked to his waist and covered with sores, was held to be properly found guilty of a nuisance, though the motive for its exhibition was innocent. R. v. Grey, 4 F. & F. 73.

A person who openly exposes or exhibits in any way. street. road, highway or public place any indecent exhibtion is liable to summary conviction as a "vagrant" under secs. 238 and 239.

Publishing advertisements for sale of obscene books.]—In The King v. De Marny, [1907] 1 K.B. 388, the defendant was indicted for selling and publishing, or causing and procuring to be sold and published obscene books, papers and photographs. He was a publisher of a newspaper and although warned by the police that certain advertisements published in his paper were for the sale of obscene books, he nevertheless continued to