Unlawful Carnal Knowledge.

defined.

298. Rape is the act of a man having carnal knowledge of Rape a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representations as to the nature and quality of the act.

2. No one under the age of fourteen years can commit this Age. offence. 55-56 V., c. 29, s. 266.

Girls under fourteen.]-When there has been no violence, and the girl is under fourteen and has consented or complied, the offence falls under Art. 269; but when there has been violence, and when the girl has not consented, then, notwithstanding the fact that the girl is under fourteen years of age, the crime is rape, and falls under this section. R. v. Riopel (1898), 2 Can. Cr. Cas. 225, 228. The word "man" and "woman" in this section are to be taken in a general or generic sense as indicating all males and females of the human race, and not in a restricted sense as distinguished from boys and girls. R. v. Riopel (1898), 2 Can. Cr. Cas. 225.

An indictment for rape lies against one who has ravished a female under the age of fourteen years against her will, notwithstanding the provisions of sec. 301, which enacts that everyone is guilty of an indictable offence and hable to imprisonment for life, and to be whipped, who carnally knows any girl under the age of fourteen years, not being his wife. Ibid.

Carnal knowledge.]-Carnal knowledge is complete upon penetration to any, even the slightest degree, and even without the emission of seed. Code sec. 7.

Evidence of young children.]—As to the evidence of children under fourteen who do not understand the nature of an oath, see sec. 1003 of the Code and sec. 16 of the Canada Evidence Act.

Carnally knowing female insane or deaf and dumb.]-See the special provision for this offence in Code sec. 219.

299. Every one who commits rape is guilty of an indictable Punishment offence and liable to suffer death or to imprisonment for life. for rape. 55-56 V., c. 29, s. 267.

A prosecution for rape is in fact and in substance a prosecution for any offence of which, on an indictment for rape, the prisoner could have been found guilty; and the maxim "Omne majus continet in se minus" applies. R. v. West,, [1898] 1 Q.B. 174; R. v. Edwards (1898), 2 Can. Cr. Cas. 96. An indictment may now be laid under Cr. Code secs. 856 and 951 charging rape and also assault with intent to commit rape.

of

day of

Form of indictment.]-The jurors of our Lord the King upon their oath present that J. S. on the in the year of our Lord 19, at the in and upon A. N. violently and unlawfully did make an assault, and her, the said A. N. then violently and against her will unlawfully did ravish and carnally know, against the form of the statute in such case made and provided, Criminal Code sec. 299, and against the peace of our Lord the King, his crown and dignity.

Rape defined.]-See sec. 298.

Evidence of young children.]-As to the evidence of children under fourteen who do not understand the nature of an oath. See sec. 1003 of the Code and sec. 16 of the Canada Evidence Act.

Evidence generally.]—The question whether the act of connection was consummated through fear, or merely through solicitation is a question of fact for the jury. R. v. Day (1841), 9 C. & P. 722; R. v. Jones (1861), 4 L.T.N.S. 154; R. v. Cardo (1889), 17 Ont. R. 11.

Proof on behalf of the defence that the injured party or her parents had instituted civil proceedings to recover damages arising from the commission of the alleged rape is properly excluded upon the criminal trial as irrelevant, unless other facts have been disclosed in evidence which tend to shew an intent to thereby wrongfully extort money from the accused. R. v. Riendeau (1900), 3 Can. Cr. Cas. 293 (Que.).

It has been held that, in the case of alleged rape on an idiot or lunatic, the mere proof of connection will not warrant the case being left to the jury; that there must be some evidence that it was without her consent, e.g., that she was incapable, from imbecility, of expressing assent or dissent; and that if she consent from mere animal passion it is not rape. R. v. Connolly (1867), 26 U.C.Q.B. 317.

On a charge of rape evidence is admissible on behalf of the defence to contradict a statement of the complainant, made on her cross-examination, denying that, on an occasion when she met the accused subsequent to the alleged rape, she had refused to put an end to the interview, as requested by her mother, and had struck her mother for the latter's interference. Such evidence is relevant to the charge not only as affecting the credibility of the complainant's, testimony generally, but as shewing conduct inconsistent with resistance to the alleged offence. R. v. Riendeau (No. 2), 4 Can. Cr. Cas. 421 (Que.).

The prisoner's statement made at a previous trial through his counsel may be given in evidence by the prosecution if it tends to anticipate a possible defence which might be offered by the prisoner. R. v. Bedere (1891), 21 O.R. 189.

Questions may be put to the complainant tending to elicit the fact that she had previously had connection with other men. So where the prosecutrix, after she had declared she had not previously had connection with a man other than the prisoner, was asked in cross-examination whether she remembered having been in the milk house of G. with two men, D.M. and B.M., one after the other. Held, that the witness may object, or the judge may, in his discretion, tell the witness she is not bound to answer the question. R. v. Laliberté (1877), 1 Can. S.C.R. 117.

The case of R. v. Hodgson (1812), 1 R. & Ryan 211, is the leading case on the subject. The weight of authority and the course of practice by the judges in England is to permit questions of the kind to be asked of a witness on cross-examination in cases of rape. The prosecuting officer is not permitted to raise the objection. The witness may object, or the judge may tell the witness she is not obliged to answer, if he thinks proper, though not bound to do so, and the judge will decide whether the witness is obliged to answer or not, when the point is raised. R. v. Laliberté (1877), 1 Can. S.C. 117, 131, per Richards, C.J.

In the same case prisoner's counsel afterwards proposed to ask one of the witnesses for the defence: "Did you see the prosecutrix with D.M. and B.M.? if you have, please state on what occasion, and what were they doing?" This question was also disallowed by the judge, and the objection was sustained in the Supreme Court of Canada on the authority of R. v. Cockroft (1870), 11 Cox C.C.C. 410, and R. v. Holmes (1871), L.R. 1 C.C.

234. upon the principle that a witness cannot be contradicted in matters foreign to the issue, which, on the trial of this indictment was, not whether the prosecutrix was unchaste, but whether the prisoner had had connection with her by violence. R. v. Laliberté (1877), I Can. S.C.R. 117,

142.

But she may be cross-examined as to particular acts of connection with the prisoner, and if she denies them, witnesses may be called to contradict her. R. v. Martin, 6 C. & P. 562; R. v. Riley, 16 Cox 191.

On a charge of rape, evidence is admissible for the defence of the general bad reputation of the prosecutrix for unchastity. R. v. Bishop (1906), 11 Can. Cr. Cas. 30.

Excluding public at trial.]—See sec. 645.

Abettor jointly indicted with principal.]-Where two prisoners are jointly indicted but an order is made for their separate trial, the one is an admissible witness for the other and is bound to testify although he may prevent his evidence being used against himself at his subsequent trial. Only the person then on trial is a "person charged" within the meaning of the Canada Evidence Act, sec. 4, and comment is not prohibited as to the failure of the accused to call as a witness the person jointly indicted with him but whose trial has been ordered to be separate. The King ve Blais, 10 Can. Cr. Cas. 354, 11 O.L.R. 345.

Aiding and abetting a rape.]-On a charge of aiding and abetting another to commit rape if it appears that a man called as a witness for the prosecution had immediately prior to the offence been in the company of the prosecutrix under circumstances making it probable that he had had illicit connection with her, and that the man accused of the rape had taken the prosecutrix away from the witness, the witness may be cross-examined as to his relations with the prosecutrix for the purpose of shewing prejudice against the accused, and for this purpose is bound to answer whether he had had connection with the prosecutrix on that occasion. And where the witness refused to answer as to his connection with the prosecutrix and the trial judge upheld his refusal and the prosecutrix also refused to answer as to same, but the guilt of the accused was corroborated by independent testimony, Code sec. 1019 may be applied to uphold the conviction on the ground that no substantial wrong has been occasioned by the ruling. The King v. Finnessey, 10 Can. Cr. Cas. 347.

Proof of complaint by prosecutrix.]—In R. v. Lillyman, [1896] 2 Q.B. 167, 60 J.P. 536, it was held by the court (Russell, C.J., Pollock, B., Hawkins, Cave and Wills, JJ.), upon a Crown case reserved, that in cases of indecent assault and rape, and similar charges, not only the fact that the prosecutrix made a complaint soon after the occurrence, but the details of the complaint itself, are admissible in evidence, not as proof of the facts complained of, but to shew that her conduct at the time was consistent with her story in the witness box and as negativing consent. Hawkins, J., in delivering the judgment of the court, said: "The general usage has been to limit the evidence of the complaint to proof that the woman made a complaint of something done to her, and that she mentioned in connection with it the name of a particular person. After very careful consideration, we have arrived at the conclusion that we are bound by no authority to support the existing usage of limiting evidence of a complaint to the bare fact that a complaint was made, and that reason and good sense are against our doing so. It has been sometimes urged that to admit the particulars of the complaint would be calculated to prejudice the interests of the accused, and that the jury would be apt to treat the complaint as evidence of the facts complained of. Of course, if it were so left to the jury, they would naturally so treat it. But it never could be legally

Punishment

so left, and we think it is the duty of the judge to impress upon the jury that they are not entitled to use the complaint as any evidence whatever of those facts, or for any other purpose than that we have stated. With such a direction, we think the interests of an innocent accused would be better protected than they are under the present usage; for, when the whole statement is laid before the jury, they are less likely to draw wrong inferences, and may sometimes come to the conclusion that what the woman said amounted to no real complaint against the accused."

Upon the trial of a charge of rape the whole statement made by the woman by way of complaint shortly after the alleged offence, including the name of the party complained against and the other details of the complaint, is admissible in evidence as proof of the consistency of her conduct and as confirmatory of her testimony regarding the offence, but not as independent or substantive evidence to prove the truth of the charge. Whether or not the complaint was made within a time sufficiently short after the commission of the offence as to admit evidence of the particulars of the complaint, is a question to be decided by the court under the circumstances of the particular case; but it is nevertheless the province of the jury to take into consideration the time which intervened, in weighing the probability of its truth. R. v. Riendeau (1901), 4 Can. Cr. Cas. 421, 10 Que. K.B. 584.

In the Riendeau case the lapse of seven days between the date of the offence and the time of making complaint thereof was held insufficient under the circumstances to exclude testimony of the particulars of the complaint. But see R. v. Ingey (1900), 64 J.P. 106, noted in 3 Can. Cr. Cas. p. 305.

Upon a charge of rape, statements made by the complainant to a police officer on the day after the offence was alleged to have been committed and in response to his inquiries, the complainant having on the day of the offence complained to others of an assault but not of rape, are not admissible in evidence either as part of the res gestæ or as in corroboration. But if the jury acquit the accused of that offence but find him guilty of indecent assault, the verdict should stand not withstanding the improper admissions in evidence of statements so made by the complainant after the alleged offence, if the other evidence in the case is ample to warrant the verdict of indecent assault. R. v. Graham (1899), 3 Can. Cr. Cas. 22 (Ont.).

Where the complainant makes a statement to a third party, not in the presence of the accused, such statement may be given in evidence, provided it is shewn to have been made at the first opportunity which reasonably offered itself after the commission of the offence, and has not been elicited by questions of a leading and inducing or intimidating nature. R. v. Spuzzum (1906), 12 Can. Cr. Cas. 287.

Where the depositions at the preliminary enquiry on which an indictment for rape is founded shew that the statements of the prosecutrix relied upon by the Crown to shew a complaint were not made spontaneously, but in answer to questions by the police officer, evidence of the answers so made is admissible against the accused at the trial. R. v. Bishop (1906), 11 Can. Cr. Cas. 30.

See also cases based on the same principle cited under sec. 292 (indecent assault), sec. 300 (attempted rape), sec. 301 (defiling child under fourteen).

300. Every one is guilty of an indictable offence and liable. for attempt. to seven years' imprisonment who attempts to commit rape. 55-56 V., c. 29, s. 268.

Attempt to commit rape.]-This offence was a misdemeanour at common law. An attempt to commit a crime is an intent to commit such crime evidenced by some overt act, and, in cases of rape, necessarily includes an assault. R. v. Riley (1887), 16 Cox C.C. 191; Stephen's Cr. Law, art. 49; Code sec. 72. The question whether an act done with intent to commit the offence is or is not only preparation for the commission of that offence and too remote to constitute an attempt to commit it is a question of law. Sec. 72 (2).

Evidence.]-If a man has or attempts to have connection with a woman while she is asleep, it is no defence that she did not resist as she is then incapable of resisting. The man can therefore be found guilty of a rape or of an attempt to commit a rape as the case may be. R. v. Mayers (1872), 12 Cox C.C. 311.

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

Jurisdiction.]—Although a county court judge in the Province of New Brunswick has no jurisdiction to try this offence he may proceed to try the offence of attempting to have carnal knowledge of a girl under fourteen (Cr. Code 302), although the evidence discloses the offence of attempting to commit rape. Code sec. 583; R. v. Wright (1896), 2 Can. Cr. Cas. 83. The same rule applies to restrict the jurisdiction of courts of general sessions. Sec. 583.

Assault with intent to commit rape.]-Section 296 of the Code deals with the question of aggravated assaults, and under sub-section (a) thereof, includes as an indictable offence for which two years' imprisonment may be imposed, the case of any one assaulting any person' "with intent to commit any indictable offence."

The latter section would probably be held to be exclusive of the offence of assault with intent to commit rape which is in itself, under the decision in John v. The Queen, 15 Can. S.C.R. 384, an attempt to commit rape. But see R. v. Preston, 9 Can. Cr. Cas. 201.

In like manner an assault charged as causing grievous bodily harm, and as made with intent to commit murder, would it seems, be a charge of attempt to murder (Cr. Code sec. 264 (b), and would be excluded from the general terms of Code sec. 296 (a).

After a commitment upon a charge of "unlawful assault with intent to carnally know," the accused cannot insist upon a trial, without a jury under the Speedy Trials clauses if the Crown express an intention of indicting him for an attempt to commit rape, which latter offence is beyond the jurisdiction of a county judge's criminal court and is disclosed on the depositions returned. R. v. Preston (1905), 9 Can. Cr. Cas. 201 (B.C.).

Alibi.]-On the trial for an attempt to commit rape if the only issue involved is as to the identity of the prisoner, it is unnecessary for the trial judge to point out to the jury that the law permits the finding of a lesser offence than the one charged. R. v. Clarke (1907), 12 Can. Cr. Cas. 300 (N.B.).

Complaint by prosecutrix.]—On the trial of an indictment for an attempt to commit rape statements of the person assaulted, and of her companion present at the beginning of the assault, made to police officers, some four hours after the assault, that they had given a description of the assailant, but not stating what the description was, and evidence of the officers that in consequence of such description they had looked for the assailant were properly received, although statements of a like character had previously been made to other persons. And where the prosecutrix on cross-examination had stated that she had given a description of her assailant in the presence of her father, and that in consequence of such 16-CRIM. CODE.