Carnally knowing girl under fourteen

years.

description her father had suspected a person other than the prisoner, the Crown was properly allowed to prove by the father what the description was that his daughter had given in his presence. R. v. Clarke (1907), 12 Can. Cr. Cas. 300 (N.B.).

See cases cited under sec. 292 (indecent assault), and sec. 299 (rape), and 301 (defiling child), for the general principles governing evidence of complaint by prosecutrix.

301. Every one is guilty of an indictable offence and liable to imprisonment for life, and to be whipped, who carnally knows any girl under the age of fourteen years, not being his wife, whether he believes her to be of or above that age or not. 55-56 V., c. 29, s. 269.

"Not being his wife."]-The words "not being his wife" in sec. 301, providing for the offence of defiling children under fourteen, is an exception, the failure to negative which in the indictment will not invalidate a conviction thereon where no objection was taken before pleading. The King v. Wright, 11 Can. Cr. Cas. 221.

Greater or lesser offence.]-Where the accused has been committed to gaol for trial upon a charge otherwise within the jurisdiction of the county court judge's criminal court for "speedy trial," the jurisdiction of that court in regard to the charge laid is not ousted by the fact that a more serious offence which that court cannot try is disclosed by the depositions upon which the charge was founded. R. v. De Wolfe, 9 Can. Cr. Cas. 38.

The offence of carnal knowledge of a girl under fourteen years includes the offence of indecent assault, and a trial for the greater offence is a trial also for the lesser offence included therein, and the accused may, although found not guilty of the greater offence, be convicted for such lesser offence, if proved, under the same charge or indictment. R. v. Cameron (1901), 4 Can. Cr. Cas. 358 (Ont.). A police magistrate trying an accused with his consent summarily, upon the charge of carnal knowledge, has the same power to convict of the lesser offence as a court of general sessions would have upon a trial under an indictment. Ibid. And an acquittal by the police magistrate on such summary trial is a bar to a charge upon a fresh information for indecent assault in respect of the same occurrence. Ibid. An indictment for rape under secs. 298 and 299 lies against one who has ravished a female under the age of fourteen years against her will, notwithstanding this section. R. v. Riopel (1898), 2 Can. Cr. Cas. 225; R. v. Ratcliffe (1882), 15 Cox C.C. 127; R. v. Dicken (1877), 14 Cox C.C. 8.

Carnally knows.]-See definition of carnal knowledge in sec. 7.

Verdict.]-Section 951 authorizes a verdict of indecent assault, the consent of a girl under fourteen not being material to that offence; sec. 294; R. v. Cameron (1901), 4 Can. Cr. Cas. 385 (Ont.); or if the complete commission of the offence under sec. 301 is not proved, but the evidence establishes an attempt to commit the offence, the accused may be convicted of such attempt and punished accordingly. Section 949.

Evidence.]-Carnal knowledge alone constitutes an offence under this section when the girl is under the age of fourteen and her consent to the act is not a defence. R. v. Brice, 7 Man. R. 627; R. v. Chisholm, 7 Man. R. 613.

Proof of age.]-See sec. 984.

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

Child's evidence not under oath.]-See Code sec. 1003 and Canada Evidence Act, sec. 16.

Proof of complaint by prosecutrix.]-In R. v. Rush (1896), 60 J.P. 777, the prisoner was indicted for carnally knowing a girl under the age of thirteen years. The day after the commission of the alleged offence the girl's mother questioned her, and the girl, in the absence of the prisoner, made a statement in answer. It was proposed to give the particulars of the statement in evidence on behalf of the prosecution on the authority of R. v. Lillyman, [1896] 2 Q.B. 167, 60 J.P. 536. Mr. Justice Wright, presiding at the Central Criminal Court, said that the lapse of time between the committing of the offence and the making of the statement was important in these cases; that, when counsel proposed to open upon and put in evidence such statements, the judge's attention should first be called to the time that had elapsed between the occurrence and the making of the statement, in order that the judge might be enabled to say whether or not the lapse of time would be an objection to the admissibility of the statement. In Rush's case the statement had not been made immediately after the alleged offence was committed, and the trial judge therefore refused to allow evidence of the particulars of the statement to be given.

The evidence is not admitted as part of the res gestæ, or as evidence of the truth of the things alleged, or solely for the purpose of disproving consent, but for the more general purpose of confirming the testimony of the ravished woman. Reg. v. Lillyman, [1896] 2 Q.B. 167; R. v. Osborne, [1905] 1 K.B. 551.

See also cases as to complaint by prosecutrix cited under sec. 292 (indecent assault), sec. 299 (rape) and sec. 300 (attempted rape).

day of

Form of indictment.]-That A. on or about the at the township of in and upon one A.N., a girl under the age of 14 years, to wit, of the age of 12 years, unlawfully did make an assault, and her, the said A.N., then and there did unlawfully and carnally know and abuse, against the form of the statute, the Criminal Code sec. 301, and against the peace, etc.

302. Every one who attempts to have unlawful carnal Attempt. knowledge of any girl under the age of fourteen years is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped. 55-56 V., c. 29, s. 270.

Corroboration.]—Upon the trial of a charge of attempted carnal knowledge of a girl under fourteen who is too young to understand the nature of an oath, a conviction for that offence is not warranted unless her evidence not under oath is corroborated by some other material evidence implicating the accused (Code sec. 1003), but the accused may be convicted of common assault upon the charge so laid if there be corroboration merely by some other material evidence (Can. Evidence Act, sec. 16). The King v. De Wolfe, 9 Can. Cr. Cas. 38.

Alibi.]-It is misdirection entitling the accused to a new trial for the trial judge to charge the jury that the onus is upon the accused to prove an alibi set up in defence by a preponderance of testimony. The King v. Myshrall, 8 Can. Cr. Cas. 474; 35 N.B.R. 507.

Jurisdiction.]-See note to sec. 300.

Proof of age.]-See sec. 984.

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

Attempt to procure.

Abortion.

303. Every one is guilty of an indictable offence and liable to imprisonment for life who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes to be taken by her any drug or other noxious thing, or unlawfully uses on her any instrument or other means whatsoever with the like intent. 55-56 V., c. 29, s. 272.

With intent.]-Supplying a noxious thing with intent to procure abortion is an offence by the terms of this section, although it subsequently appears that the woman was not pregnant. See R. v. Titley (1880), 14 Cox C.C. 502; R. v. Goodhall (1846), 1 Den. 187.

Where the instrument alleged to have been used was a quill, which might possibly have been used for an innocent purpose, evidence was allowed to be given, in order to prove the intent, that the prisoner had at other times caused miscarriages by similar means. R. v. Dale (1889), 16 Cox C.C. 703, per Charles, J.

Administers.]-See note to sec. 264.

Causes to be taken.]-Where the prisoner gave the prosecutrix the drug for the purpose of procuring abortion, and the prosecutrix took it for that purpose in the prisoner's absence, it was held that he had "caused it to be taken" within the meaning of a similar English statute. R. v. Wilson (1856), Dears. & B. 127; R. v. Farrow (1857), Dears. & B. 164.

Drug or other noxious thing.]-The statute 32-33 Vict., ch. 20, sec. 59, as well as the later Act, R.S.C., 1886, ch. 162, sec. 47, used the phrase any poison or other noxious thing. It was laid down under that statute that while poisons are not noxious things when taken as medicine in ordinary treatment, that if taken or administered in undue and immoderate quantities the excess of the article becomes noxious, and it is not essential to support a conviction that the article should be noxious in itself. R. v. Stitt (1879), 30 U.C.C.P. 30, 33.

The thing administered must be either a "drug" or a "noxious thing," and it is not sufficient that the accused supposed it would have the desired effect. R. v. Hollis (1873), 12 Cox C.C. 463; R. v. Isaacs (1862), 9 Cox C.C. 228, 32 L.J.M.C. 52.

If the article administered is not a "drug" and the quantity administered is innoxious but would be noxious had it been taken in large quantities, there is no administration of a noxious thing within the section. R. v. Hannah (1877), 13 Cox C.C. 547.

If the drug administered produces miscarriage it is sufficient evidence that it is noxious although there is no other evidence of its nature. R. v. Hollis (1873), 12 Cox C.C. 463.

Evidence that quantities of oil of juniper considerably less than half an ounce are commonly taken medicinally without any bad results, but that half an ounce produces ill effects and is to a pregnant woman dangerous, was held sufficient from which a jury might infer that the latter quantity was a noxious thing. R. v. Cramp (1880), 5 Q.B.D. 307.

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

Intent proved by similar criminal acts.]-In Rex v. Bond, [1906] 2 K.B. 389, the defendant was indicted for feloniously using instruments on

one Jones for the purpose of procuring a miscarriage. Evidence was given by another woman that the defendant had used instruments on her for the like purpose nine months before the act laid in the indictment, and had then told her that he had done the same thing for dozens of girls. The court for Crown cases reserved held that the evidence was admissible for the purpose of shewing that the act of which the prisoner was accused was not innocent, but was done with felonious intent. And see note on evidence of similar criminal acts under sec. 259.

But where A. was charged with using a certain instrument on B. with intent to procure abortion, evidence that four months later A. had treated another married woman in a similar manner, was held inadmissible, since two instances, especially where the second is a subsequent one, could not be relied on as proof of a systematic course of action. R. v. Hicks, 39 L.Jo. 421, per Ridley, J. So, in R. v. Bond, evidence of the other similar operation without evidence of A.'s statement that he was in the habit of performing such would have been inadmissible. Phipson Evid. p. 166.

304. Every woman is guilty of an indictable offence and Woman atliable to seven years' imprisonment who, whether with child or tempting to procure her not, unlawfully administers to herself or permits to be admin- own misistered to her any drug or other noxious thing, or unlawfully carriage. uses on herself or permits to be used on her any instrument or other means whatsoever with intent to procure miscarriage. 55-56 V., c. 29, s. 273.

on

at

and

Form of indictment.]-That A. of being then with child, with intent to procure her own miscarriage, did unlawfully administer to herself one drachm of a certain drug (or noxious thing) called contrary to the statute, the Criminal Code sec. 304.

An indictment under sec. 304 of the Code charging accused "with unlawfully using on her own person . with intent thereby to procure

a miscarriage" (without stating whose miscarriage) is sufficient. Rex v. Holmes, 9 B.C.R. 294, 6 Can. Cr. Cas. 402.

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

Drug or other noxious thing.]-See note to sec. 303.

procure.

305. Every one is guilty of an indictable offence and liable Supplying to two years' imprisonment who unlawfully supplies or pro- drug to cures any drug or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child. 55-56 V., c. 29, s. 274.

Intended to be unlawfully used.]-Even if the intention so to use the same exists only in the mind of the accused, and is not entertained by the woman whose miscarriage it is intended to procure, there is a complete offence. R. v. Hillman (1863), 9 Cox C.C. 386, L. & C. 343.

Drug or other noxious thing.]-See note to sec. 303.
Excluding public from court room.]-See sec. 645.

Killing

unborn child.

Saving.

Bigamy defined.

Incompetency no defence.

Excuses.

Bigamous marriages

outside of Canada.

306. Every one is guilty of an indictable offence and liable to imprisonment for life who causes the death of any child which has not become a human being, in such a manner that he would have been guilty of murder if such child had been born.

2. No one is guilty of any offence who, by means which he in good faith considers necessary for the preservation of the life of the mother of the child, causes the death of any such child before or during its birth. 55-56 V., c. 29, s. 271.

If the child be born, and die in consequences of injuries received either before or during birth, the offence is homicide. Section 251.

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

Offences against Conjugal Rights.

307. Bigamy is,

(a) the act of a person who, being married, goes through a form of marriage with any other person in any part of the world; or,

(b) the act of a person who goes through a form of marriage in any part of the world with any person whom he or she knows to be married; or,

(c) the act of a person who goes through a form of marriage with more than one person simultaneously, or on the same day.

2. The fact that the parties would, if unmarried, have been incompetent to contract marriage shall be no defence upon a prosecution for bigamy.

3. No one commits bigamy by going through a form of marriage,

(a) if he or she in good faith and on reasonable grounds believes his wife or her husband to be dead; or,

(b) if his wife or her husband has been continually absent for seven years then last past and he or she is not proved to have known that his wife or her husband was alive at any time during those seven years; or,

(c) if he or she has been divorced from the bond of the first marriage; or,

(d) if the former marriage has been declared void by a court of competent jurisdiction.

4. No person shall be liable to be convicted of bigamy in respect of having gone through a form of marriage in a place not in Canada, unless such person, being a British subject resi