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 under colour of any pretended authority, directs or procures under preprisoner the 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.

when re

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.

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.

Definitions. "Theatre.'

'Guardian.'

'Public place.'

Blasphemous libels.

Question of fact. Proviso.

PART V.

OFFENCES AGAINST RELIGION, MORALS AND PUBLIC
CONVENIENCE.

Interpretation.

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. (Ñ.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.

200. Every one is guilty of an indictable offence and liable Violence to officiating to two years' imprisonment who strikes or offers any violence clergyman. 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.

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. Cr. Cas. 203.

At common law.]-Any 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. 55-56 V., c. 29, s. 174.

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.