Definition.

endangered thereby, unless he proves that her going to sea or on such voyage in such unseaworthy state was, under the circumstances, reasonable and justifiable. 55-56 V., c. 29, s. 257.

Consent to prosecution.]-No person shall be prosecuted for any offence under this or the preceding section without the consent of the Minister of Marine and Fisheries. Sec. 595.

Imperial Act.]—The Merchant Shipping Act, 1894 (Imp.), 57-58 Vict., ch. 60, sec. 457, which is applicable to British possessions, makes the following additional provision: "If the master of a British ship knowingly takes the same to sea in such unseaworthy state that the life of any person is likely to be thereby endangered, he shall in respect of each offence be guilty of a misdemeanour unless he proves that her going to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable, and for the purpose of giving such proof he may give evidence in the same manner as any other witness." A prosecution under that section cannot, however, be brought in Canada without the consent of the Governor-General. Ibid., sec. 457 (3). And see Code sec. 288 and note to same.

Assaults.

290. An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening, by any act or gesture, to apply force to the person of another, if the person making the threat has, or causes the other to believe, upon reasonable grounds, that he has present ability to effect his purpose, and in either case, without the consent of the other or with such consent, if it is obtained by fraud. 55-56 V., c. 29, s. 258.

Common assault.]—To discharge a pistol loaded with powder and wadding at a person within such a short distance that the party might have been hit, is an assault. R. v. Cronan (1874), 24 U.C.C.P. 106. And see, as to pointing fire-arms, Code sec. 122.

A conviction for unlawfully assaulting V. by standing in front of the horses and carriage driven by the said V. in a hostile manner, and thereby forcibly detaining him, the said V. in the public highway against his will, was held bad, in stating the detention as a conclusion and not as part of the charge. R. v. McElligott (1883), 3 O.R. 535. It will not be inferred as a matter of law that standing in front of the horses was a forcible intention, there being no statement that the detention was by any other means than mere passive resistance. Ibid.

An indictment for rape includes the lesser charge of assault, and a verdict thereon of guilty of common assault is properly followed by a conviction although the information was laid more than six months after the offence was committed. R. v. Edwards (1898), 2 Can. Cr. Cas. 96.

A blow struck in anger or which is intended or is likely to do corporal hurt is a criminal assault, notwithstanding the consent to fight of the person struck. R. v. Buchanan (1898), 1 Can. Cr. Cas. 442 (Man.). When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature or is in

flicted under such circumstances that its infliction is injurious to the public as well as to the person injured. Reg. v. Coney (1882), 8 Q.B.D. 534.

If, whilst playing a game, a player deliberately infringes the rules, and in so doing hurts another, he is guilty of an assault, for the consent of the person injured only extends to acts committed within the rules. East, in his Pleas of the Crown, says: "If two were engaged to play at cudgels, and the one made a blow at the other likely to hurt before he was upon his guard, and without warning, and death ensued, the want of due and friendly warning would make such act amount to manslaughter, but not to murder, because the intent was not malicious." (Sol. Jour.)

And no rules or practice of any game can make that lawful which is unlawful by the law of the land; and the law of the land says you shall not do that which is likely to cause the death of another. R. v. Bradshaw (1878), 14 Cox C.C. 83.

A charge of common assault may in certain cases be completely answered by proof of consent on the part of the person bringing the charge. Thus, if a man strike another with a stick, this is primâ facie an offence, although no real harm be done; if, however, the two had agreed to engage in a match of singlesticks, and in the course of the game, and without transgression of its rules and with no intent to inflict harm, the complainant was struck, his consent to run the risk of receiving a blow is a defence to the charge of assault.

In a criminal prosecution by the wife of O., for assault made upon her in entering her husband's house, the defence was that she had no right to enter, and that her intention was to take away property which she had no legal right to take, but it was held, on a case reserved, that this would not justify the assault, there being no previous request made of her to leave the house, nor any statement of her intention, or of an attempt, to take anything. The Queen v. O'Neill, 3 P. & B. (N.B.) 49.

291. Every one who commits a common assault is guilty Common of an indictable offence and liable, if convicted upon an indict- assaults. ment, to one year's imprisonment, or to a fine not exceeding one hundred dollars, and on summary conviction to a fine not exceeding twenty dollars and costs, or to two months' imprisonment, with or without hard labour. 55-56 V., c. 29, s. 265.

Common assault.]-See sec. 290 for the statutory definition of an "assault" and see also the notes to that section.

Summary conviction.]—Section 732 provides for cases in which a summary conviction may be made for a common assault.

Title to land.]-By sec. 709 it is provided that no justice shall hear and determine any case of assault or battery in which any question arises as to the title to any tenements, hereditaments or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. Rent payable under a lease of land is an incorporeal hereditament. Kennedy v. MacDonell (1901), 1 O.L.R. 250.

If the justice finds the assault complained of to have been accompanied by an attempt to commit some other indictable offence or is of opinion that the same is from any other circumstance a fit subject for prosecution by indictment, he is not to adjudicate thereupon but must deal with the case in all respects in the same manner as if he had no authority finally to hear and determine the same. Section 732.

Offence.

Penalty.

A summary conviction for assault upon a female, causing bruises, will be presumed one of common assault under Code secs. 291 and 732, and not of an assault occasioning bodily harm under sec. 295, where there has been no election of summary trial. Larin v. Boyd, 11 Can. Cr. Cas. 74.

Two months' imprisonment.]-A summary conviction imposing a sentence of sixty days is not invalid where the statutory maximum is two months, unless there is a reasonable probability of the sixty days' term being in the particular case more than two months. R. v. Brindley (1906), 12 Can. Cr. Cas. 170, per Graham, E.J.; but see contra the decision of Russell, J., in the same case. And see note 12 Can. Cr. Cas. 173.

Preliminary enquiry.]—A magistrate holding a preliminary enquiry for an indictable offence may not proceed to summarily convict on the evidence given therein for both the accused and the prosecutor for a lesser offence included in the offence charged, although such lesser offence, if originally charged, would have been within his jurisdiction for trial. Ex p. Duffy (1901), 8 Can. Cr. Cas. 277.

Summary trial.]-Upon a summary trial for inflicting grievous bodily harm, the magistrate may convict instead for the lesser offence of common assault in like manner as a jury might do. The punishment which may be imposed by a city stipendiary magistrate convicting of common assault upon a summary trial for a greater offence under sec. 777 is that which is provided in case of conviction upon indictment, i.e., one year's imprisonment or a fine of $100. R. v. Coolen (1903), 7 Can. Cr. Cas. 522.

Where the sentence imposed upon a summary trial by consent before a city stipendiary magistrate for common assault was, in the first instance, three months' imprisonment without mention of hard labour, and the minute of adjudication did not include hard labour, a formal conviction, including hard labour, and a commitment thereon in similar terms are invalid and the accused will be discharged on habeas corpus. Ex parte Carmichael, 8 Can. Cr. Cas. 19.

"If convicted upon indictment."]-A city stipendiary magistrate holding a summary trial under Code sec. 777 may impose imprisonment not exceeding one year for common assault although Code sec. 291 specifies such punishment with the addition of the words "if convicted upon an indictment." Section 777 gives to police and stipendiary magistrates of towns and cities the power to award on summary trials held with the consent of the accused, the same punishment as an Ontario Court of General Sessions might impose on a trial on indictment. R. v. Hawes (1902), 6 Can. Cr. Cas. 238, per Graham, E.J. In the same case Townshend, J., held, that upon a summary trial for common assault, the imprisonment authorized by Code sec. 291 can only be imposed in the first instance; and that where a fine is imposed the imprisonment in default of payment thereof is controlled by Code sec. 739 (b) and is therefore limited to three months. Binding over to keep the peace.]-See secs. 748 and 1058. Justification.]—As to matters of justification, see secs. 52-62. Aggravated assault.]-See sec. 296.

Assault causing bodily harm.]-See sec. 295.

When civil remedy barred.]-See secs. 733 and 734.

292. Every one is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped, who,

Indecent

female.

(a) indecently assaults any female; or, (b) does anything to any female by her consent which but assault on for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations procured as to the nature and quality of the act. 55-56 V., c. 29, by fraud. s. 259.

Consent generally.]-Apart from statutory provision there can be in law no assault unless it be against consent. R. v. Martin (1839), 9 C. & P. 215; R. v. Guthrie (1870), L.R. 1 C.C.R. 241; 39 L.J.M.C. 95. Mere submission is not always equivalent to consent. A person may submit to an act done from ignorance, or the consent may be obtained by fraud; and in neither case would it be such consent as the law contemplates. R. v. Lock (1872), L.R. 2 C.C.R. 10. Consent means an active will in the mind of the patient to permit the doing of the act complained of; and knowledge of what is to be done is essential to a consent. Ibid; R. v. O'Shay (1898), 19 Cox C.C. 76; R. v. Stanton (1844), 1 Car. & Kir. 415; R. v. Case (1850), 4 Cox C.C. 220; R. v. Flattery, 2 Q.B.D. 410.

Form of indictment for indecent assault.]-That A. at

on the day of 190 one D., a female, unlawfully and indecently did assault, and her, the said D., did then beat, wound and ill treat, and other wrongs to the said D. did, to the great damage of the said D., against the form of the Criminal Code sec. 292.

And in

Child under 14.]-It is no defence to a charge or indictment for any indecent assault on a young person under the age of fourteen years to prove that she consented to the act of indecency. Section 294. order to prove the age of a girl, for the purposes of sec. 294, the following shall be primâ facie evidence:-(a) Any entry or record by an incorporated society or its officers having had the control or care of the girl at or about the time of the girl being brought to Canada, if such entry or record has been made before the alleged offence was committed. (b) In the absence of other evidence, or by way of corroboration of other evidence, the judge or, in cases where an offender is tried with a jury, the jury before whom an indictment for the offence is tried, or. the justice before whom a preliminary inquiry thereinto is held, may infer the age from the appearance of the girl. Section 984.

The best evidence possible should be given to prove the age of the girl where the age is material. 3 Russell on Crimes, 6th ed., 240. And where the only evidence of age was simply hearsay, it was held insufficient. R. v. Wedge (1832), 5 Č. & P. 298; R. v. Hayes, 2 Cox C.C. 226; R. v. Nicholls, 10 Cox C.C. 476.

There can still be no conviction for common assault where there is consent, as sec. 294 applies to indecent assault only.

Evidence of young children not under oath.]-See sec. 1003 of the Code and sec. 16 of the Evidence Act.

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

Punishment.]-Under this section everyone found guilty of an indecent assault on a female is liable to two years' imprisonment and to be whipped; but the court in many cases, acting under the discretion conferred by the special proviso contained in sec. 1028 of the Code, does not inflict the whipping, and imposes only an imprisonment. R. v. Robidoux (1898), 2 Can. Cr. Cas. 19.

Indictment for greater offence.]-If, on an indictment of rape the jury acquit the accused of that offence, but find him guilty of indecent assault,

Consent

and the other evidence in the case is ample to warrant the verdict, it should stand notwithstanding the improper admission in evidence of statements made by the prosecutrix by way of complaint following the offence, she having then complained of an assault but not of rape. R. v. Graham (1899), 3 Can. Cr. Cas. 22 (Ont.). The accused may, on an indictment for rape, be convicted of assault with intent to commit rape. John v. The Queen, 15 Can. S.C.R. 384.

Evidence of complaint.]-In R. v. Lillyman, [1896] 2 Q.B. 167, 60 J.P. 536, it was held that in cases of indecent assault, 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.

In an Ontario case it has been held that in a civil action for damages under circumstances constituting the criminal offence of indecent assault, evidence is admissible of complaint made by the woman shortly after the assault was committed, in like manner as upon a criminal trial; and that complaint made by the woman to her husband, on her first meeting him some hours after the assault, but on the same day, was admissible in evidence under the circumstances of the case. The proof of such complaint by the evidence of both the woman and her husband is corroborative of the woman's evidence that she did not consent to the acts complained of. Hopkinson v. Perdue, 8 Can. Cr. Cas. 286. Where evidence of complaint is admissible on a charge of indecent assault, not only the fact of complaint may be shewn, but the particulars of the complaint. Ibid.

It is essential in all cases of indecent assault that complaint should have been made at the earliest opportunity after the offence, and evidence of such complaint may, under special circumstances, be received after the lapse of several days' delay. The fact of the girl being only seven years of age, that the act was committed without violence and that the girl did not realize the serious nature of the act, are circumstances which make a complaint made ten days afterwards admissible in evidence. R. v. Barron (1905), 9 Can. Cr. Cas. 196 (N.S.).

Under exceptional circumstances evidence of a complaint made by an adult female of an indecent assault may be admitted although five days had intervened between the assault and the complaint. R. v. Smith (1905), 9 Can. Cr. Cas. 21 (N.S.).

In the King v. Osborne, [1905] 1 K.B. 551, the defendant was indicted for an indecent assault upon a girl under the age of thirteen. The girl had been left by two companions in the defendant's shop and on their return shortly afterwards they met her coming away, and one of them asked why she had not stayed till their return, when the prosecutrix made an answer incriminating the defendant. On the trial the reception of this evidence was objected to, but the Court on a reserved case held that it was admissible not as evidence of the truth of the charge alleged, but as corroborating the credibility of the girl and as evidence of the consistency of her conduct.

But if the complaint is made only after the discovery of circumstances suggesting impropriety and in answer to questions put to the girl requiring an explanation, it would seem that such a conversation is not a complaint at all. R. v. Merry (1900), 19 Cox C.C. 142.

See also cases as to complaint of prosecutrix on a charge of rape or attempted rape, referred to under sections 299 and 300.

When counsel propose to open upon and put in evidence such statements, the judge's attention should first be called to the time that had