Definition. Manner of S., the father of the said N., of the possession of the said N., his said child, against the form of the Criminal Code sec. 316. And the jurors, etc., further present that the said A. afterwards, to wit, on the day and year aforesaid, unlawfully did take away and detain the said N., a child then under the age of fourteen years, to wit, of the age of ten years, with intent thereby then unlawfully to steal, take and carry away divers articles, that is to say the clothing then being upon and about the person of the said child, against the form of the Criminal Code sec. 316. Defamatory Libel. 317. A defamatory libel is matter published, without legal justification or excuse, likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or designed to insult the person of or concerning whom it is published: 2. Such matter may be expressed either in words legibly expressing. marked upon any substance whatever, or by any object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony. 55-56 V., c. 29, s. 285; 63-64 V., c. 46, s. 3. "Published."]-For definition of "publishing" see Code sec. 318. Particulars of indictment.]-When an indictment for defamatory libel consisting of words harmless in themselves, but importing by innuendo an imputation of dishonourable conduct contains in addition to the enunciation of the incriminating words an allegation of the sense in which they should be understood the Crown will be allowed to prove extrinsic circumstances which impute this meaning to them. It is not necessary to enumerate these circumstances in the indictment, and the accused is sufficiently guarded against surprise by the right that he has to demand particulars. See Code secs. 859-860. Failing to do so, he will not be allowed to object to the admission of the evidence above mentioned and the question of its legality is not one which can be reserved for the opinion of the Court of Appeal. R. v. Molleur (No. 1) (1905), 12 Can. Cr. Cas. 8. Defamatory libel defined.]—The writing and publishing of defamatory words of any living person or words calculated or intended to expose him to public hatred, contempt or ridicule, or to damage his reputation, or the exhibition of a picture or effigy defamatory of him is defamatory libel, if such publication or exhibition is calculated to cause a breach of the peace. Monson v. Tussauds, Ld., [1894] 1 Q.B. 671; Odgers on Libel, 3rd ed., 443. Any malicious defamation of any person, expressed in print or in writing, or by means of pictures or signs, and tending to provoke him to anger and acts of violence, or to expose him to public hatred, contempt or ridicule, amounts to a libel in the indictable sense of the word; and, since the reason is that such publications create ill blood and manifestly tend to a disturbance of the public peace the degree of discredit is immaterial to the essence of the libel since the law cannot determine the degree of forbearance which the party reflected upon will exert. 2 Starkie on Slander, 210, 211. Seditious libels.]-See secs. 132-134. Libels on foreign sovereigns.]-See sec. 135. Blasphemous libel.]-See sec. 198. Criminal libel at common law.]—At common law criminal proceedings for libel did not lie "unless the offence be of such signal enormity that it may reasonably be construed to have a tendency to disturb the peace and harmony of the community." 1 Hawkins P.C., ch. 28, sec. 3. In such a case the public are justly placed in the character of an offended prosecutor to vindicate the common right of all, though violated only in the person of an individual. Ibid. The criminal remedy for libel is in some respects the more extensive remedy; a libel may be indictable though it be not actionable. Odgers on Libel, 3rd ed. (1896), 444; R. v. Topham (1791), 4 T.R. 126; R. v. Gathercole (1838), 2 Lewin C.C. 237; R. v. Darby, 3 Mod. 139. Evidence.]-In criminal libel it is not necessary to shew a publication to some third person other than the person defamed, and it is sufficient to prove a publication to the prosecutor himself, provided the obvious tendency of the words be to provoke the prosecutor and incite him to break the peace. R. v. Wegener (1817), 2 Stark. 245; R. v. Brooke (1856), 7 Cox C.C. 251; R. v. Adams (1888), 22 Q.B.D. 66, 16 Cox C.C. 544; Odgers on Libel, 3rd ed., p. 455. A manuscript of a libel is deemed primâ facie to be published, so far as the writer is concerned, when it has passed out of his possession and control. R. v. Burdett (1820), 4 B. & Ald. 143; R. v. Lovett (1839), 9 C. & P. 462. The directors of an incorporated printing company are not criminally liable for a libel contained in a paper printed by the servants of the company, unless they knew of or saw the libel before its publication, or gave express instructions for its appearance. R. v. Allison (1888), 16 Cox C.C. 559. Apart from statutory enactments in reference thereto, it was held that the proprietor of a newspaper is answerable criminally for the publication in it of a libel though he has personally nothing to do with the conducting of the paper and leaves its whole management to others. R. v. Walter (1799), 3 Esp., 21, per Lord Kenyon; R. v. Gutch (1829), 1 Moody & Malkin, 433, 438. And see Code sec. 329. On an indictment for a libel published in a newspaper, it appeared that the editor (who was not indicted) before inserting the libel shewed it to the prosecutof, who did not express any wish to suppress the publication, but wrote a reply, which was also inserted. The jury found it to be a malicious libel, and defendants were convicted. The court held that what prosecutor said to the editor, and did, did not hold out any assurance of impunity to the defendants, so as to render the conviction illegal, and a new trial was refused. R. v. McElderry (1860), 19 U.C.Q.B. 168. Publication.]-The publication of a libel is not confined to the actual communication of its contents by the publisher to some other person; for though, in common parlance, the word "publication" may be confined in its interpretation to making the contents known to the public, yet its meaning is not so limited in law; wherein some words are used in a peculiar sense, differing in a certain degree from their popular meaning. Thus, in the language of the law, we speak of the publication of a will and of an award, without meaning to denote by that word any communication of the contents of those instruments, and meaning only a declaration by the testator or arbitrator, in the presence of witnesses, that the instrument is his testament or award. So in the case of a libel, the publication of it may be traditione, when it is delivered over to scandalize any party; and the publication of it is nothing more than doing the last act for the accomplishment of the mischief intended by it. For the moment a man delivers a libel from his hands his control over it is gone; he has shot his arrow, and it does not depend upon him, whether it hits the mark or not. There is an end then of the locus pœnitentiæ, his offence is complete, the mischievous contention is consummated, and from that moment he is liable to be called upon to answer for his act. And though the act of publication may be proved by an actual communication of the contents of the libel, as by singing or reading, or an open exposure of it to other persons, yet these are not the only nor the usual modes of proof. The usual mode is by delivery of the libel, either by way of sale, or otherwise; and upon proof of the purchase of a pamphlet in Fleet Street, it is not necessary to prove that the purchaser read the pamphlet either in London or elsewhere. Per Best, J., and Abbott, C.J., in Rex v. Burdett (1820), 4 Barn. & Ald. 126, 160; 2 Deacon, Crim. Law, 808; R. v. Paine, 5 Mod. 163. A person, who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the delivery; and its legal character is not altered, either by the procurement of that person, or by the subsequent handing over of the writing to him. Brunswick v. Harmer, 14 Q.B. 185. But the reading a libel in the presence of another, without any previous knowledge of its being a libel, does not amount to a publication. "Also it hath been holden," says Hawkins, "that he who repeats part of a libel in merriment without malice and with no purpose of defamation, is in no way punishable; but it seemeth that the reasonableness of this opinion may justly be questioned; for jests of this kind are not to be endured and the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it." 1 Hawkins, P.C., ch. 73, sec. 14. Yet, where a man went to the defendant's house, and requested liberty to see a caricature print, and the defendant thereupon produced it, and pointed out the figures of the persons it ridiculed, Lord Ellenborough ruled that this was not sufficient evidence of a publication. Smith v. Wood, 3 Campbell, 323. Evidence that the defendant communicated verbally to another the defamatory matter, with a view to its publication, is sufficient to charge him with the publication. In Adams v. Kelly, Ryan & Moody, N.P.C. 157, a witness (at that time a reporter for the Observer newspaper), stated that he had met with the defendant, who communicated to him the slanderous matter set forth in the first count relating to the plaintiff, which the defendant said would make a good case for the newspaper. The reporter desirous of obtaining information for his paper, attended the defendant to an adjoining tavern, and who gave him a more detailed account, for the express purpose of inserting it in the paper with which the reporter was connected. Afterwards, from the particulars communicated by the defendant, the reporter drew up an account which he left at the office of the Observer, to be inserted in that paper. An Observer newspaper was then put into the witness's hands, and he stated that a paragraph in that paper contained exactly the same account which he sent to the editor, with the exception of some slight alterations, not affecting the sense, made by the editor. The counsel for the plaintiff then proposed to read the newspaper. Abbott, C.J., said: "This newspaper is proposed to be given in evidence, in order to sustain that count, which charges the defendant with publishing the printed libel set forth in the declaration. The evidence is, that the reporter put something in writing from his conversation with the defendant, and which he gave to the editor. What the reporter published in consequence of what passed with the defendant, may be considered as published by the defendant; but you must shew that what was published is that which was given to the editor by the reporter, which you can only do by producing the paper itself." There may also be a constructive publication. In Watts v. Fraser, 7 Carrington & Payne, 369, it was held that the printer and editor of a magazine are both liable for a libellous lithographic print which is contained in the work, although the print was not struck off by the printer, provided that the print is referred to in the letter-press of one of the articles. The mere act of printing is not sufficient evidence of publication. In Watts v. Fraser, 7 Adolphus & Ellis, 223, 233. If the manuscript of a libel be proved to be in the handwriting of the defendant, and it also proved to have been printed and published, this is sufficient evidence to go to a jury that it was published by the defendant, although there be no evidence to shew that the printing and publishing were by his direction. Regina v. Lovett, 9 Carrington & Payne, 462; Lamb's Case, 9 Co. Rep. 59. If the libel is contained in a letter addressed to the prosecutor, this is evidence of a publication sufficient to support an indictment, on the first and general principle of preserving orderly and decent conduct in society, that is, technically speaking, for the preventing breaches of the peace. Therefore the indictment must allege that the intention of sending the letter was to provoke the prosecutor and to excite him to break the peace. R. v. Wegener (1817), 2 Starkie Rep. 245; 1 Hawkins, P.C., ch. 73, sec. 11. The date of a letter is primâ facie evidence that it was written at the place where it was dated. Rex v. Hensey, 1 Burrow, 644; Rex v. Burdett, 4 Barnewall & Alderson, 95; and the post mark is prima facie evidence that the letter was in the office at the time and place therein specified. Fletcher v. Braddyll, 3 Starkie Rep. 64; and if a letter properly directed is sent by the post, it is presumed, from the known course in that department of the public service, that it reached its destination at the regular time and was received by the person to whom it was addressed. Warren v. Warren, 1 C.M. & R., 250; 4 Tyrwhitt, 850; approved in Shipley v. Todhunter, 7 Carrington & Payne, 680, 686. In an action for libel contained in a pamphlet, a witness stated that she had received a copy from the defendant and that she had read certain portions of it; that she had lent it to a third person, who had afterwards given her a copy back, which she believed to be the same she had lent to him, but that she would not swear that it was the same, yet that she had no reason to doubt it. This was held to be sufficient evidence of publication for the jury. Fryer v. Gathercole, 4 Exchequer Rep. 262. If a libel is written in one county and sent by post addressed to a person in another county, or its publication in another county be in any way consented to, this is evidence of a publication in the latter county. The Seven Bishops' Case, 13 Howell's State Trials, 331, 332. Thus, if a libellous letter is sent by the post, addressed to a party out of the county in which the venue is laid, but it is first received by him within that county, this is a sufficient publication. Rex v. Watson, 1 Campbell, 215. But see the limitation as to provinces in Code sec. 888 applying to newspapers. But a general confession that the defendant was the writer of a libel, is no evidence that he published it in any particular county. The Seven Bishops' Case, 12 Howell's State Trials, 183. Presumption against newspaper proprietor.]—See sec. 329. Libels on the dead.]—The publication of a libel on the character of a dead person is not indictable unless it is intended to injure or provoke living persons. Burb. Cr. Dig. 263. An actual intent to injure or to provoke or annoy living persons of the same family blood or society is essential to the offence, and a mere tendency to provoke, or constructive intention inferred from the fact that the libel was calculated to hurt the feelings of Publishing defined. Publishing upon invitation. Publishing of courts of justice. any surviving relations of the deceased is not enough. R. v. Ensor (1877), 318. Publishing a libel is exhibiting it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by the person defamed or by any other person. 55-56 V., c. 29, s. 286. 319. No one commits an offence by publishing defamatory matter on the invitation or challenge of the person defamed thereby, nor if it is necessary to publish such defamatory matter in order to refute some other defamatory statement published by that person concerning the alleged offender, if such defamatory matter is believed to be true, and is relevant to the invitation, challenge or required refutation, and the publishing does not in manner or extent exceed what is reasonably sufficient for the occasion. 55-56 V., c. 29, s. 287. Answer provoked or invited.]—Every man had a right to defend his character against false aspersion; therefore communications made in fair self-defence are privileged. If a person is attacked in a newspaper he may write to that paper to rebut the charges, and he may at the same time retort upon his assailant where such retort is a necessary part of his defence or fairly arises out of the charges made in the former article. O'Donoghue v. Hussey, Irish R. 5 C.L. 124. An attack made in public requires a public answer. Laughton v. Bishop of Sodor and Man (1872), L.R. 4 P.C. 495. Even in rebutting an accusation, the defendant may not state what he knows at the time to be untrue, or intrude unnecessarily into the private life or character of his assailant; the privilege extends only to such retorts as are fairly an answer to the plaintiff's attacks. Odgers on Libel 233; R. v. Veley (1867), 4 F. & F. 1117; Konig v. Ritchie, 3 F. & F. 413. There can be no set-off of one libel or misconduct against another. Kelly v. Sherlock, L.R. 1 Q.B. 698. 320. No one commits an offence by publishing any defamaproceedings tory matter, in any proceeding held before or under the authority of any court exercising judicial authority, or in any inquiry made under the authority of any statute or by order of His Majesty, or of any of the departments of government, Dominion or provincial. 55-56 V., c. 29, s. 288. |