Abduction of girl under sixteen.

Consent immaterial.

Belief of offender.

315. Every one is guilty of an indictable offence and liable to five years' imprisonment who unlawfully takes or causes to be taken any unmarried girl, who is under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her.

2. It is immaterial whether the girl is taken with her own consent or at her own suggestion or not.

3. It is immaterial whether or not the offender believed the girl to be of or above the age of sixteen. 55-56 V., c. 29, s. 283.

Evidence.]-To constitute the crime of abducting a girl out of the possession of and against the will of her father under this section, there must be an actual or constructive possession de facto, in the father at the time of the taking. When the girl who was resident with her father in a foreign country left without his consent and with intent to renounce his protection, and came to Canada, the father's possession ceased, and semble, a possession de jure afterwards established by his following her to the place of flight is not the possession contemplated by the section. R. v. Blythe (1895), 1 Can. Cr. Cas. 263 (B.C.).

If the persuasion to leave and remain away operated wholly in the foreign country, there is no jurisdiction to convict in Canada, as persuasion is a necessary element in such cases of abduction. Ibid.

To take a natural daughter under sixteen years of age away from the custody of her putative father may be an offence under this section. R. v. Cornforth (1742), 2 Str. 1162; R. v. Sweeting (1766), 1 East P.C. 457.

The girl is none the less in the "possession" of her guardian by reason of having left her guardian's house for a particular purpose with his sanction. R. v. Mondelet (1877), Ramsay's Cases (Que.), 179, 21 L.C. Jur. 154.

A., a girl under the age of sixteen, who was, with her father's consent, under the case of B., her uncle, was allowed by B. to dine at the house of C., who was married to B.'s sister. C. took A. for a drive and induced her to remain over night with him at an hotel, where he debauched her. The next day he left her at B.'s. It was held that B. had the lawful care of A., and that she was unlawfully taken out of his possession by C. R. v. Mondelet, 21 L.C. Jur. 154.

A girl employed as a barmaid at some distance from her father's house has been held not to be in his possession. R. v. Henkers (1886), 16 Cox C.C. 257.

It is no defence that the act was committed from no bad motive, or even from philanthropic and religious motives. R. v. Booth (1872), 12 Cox C.C. 231.

The only intent which it is necessary to prove under this section is the intent to deprive the parent or other person of the possession of the child. R. v. Timmins (1860), Bell 276, 30 L.J.M.C. 45. In the case last mentioned, the prisoner induced a girl of between fourteen and fifteen years to leave her father's house and cohabited with her for three days and then told her to go home. The jury found the prisoner guilty, but also found that he did not intend when he took the girl away to keep her away from home permanently, and the conviction was affirmed.

Where the prisoner went in the night to the house of B. and placed a ladder against the window and held it for the daughter of B., a girl of the

age of fifteen years, to deceased, which she did, and then she eloped with him, this was held to be a "taking" of the girl out of the possession of her father, although she herself proposed to the prisoner that he should bring the ladder and that she would elope with him. R. v. Robins (1844), 1 C. & K. 456.

A man intending to emigrate to America privately persuaded a girl under sixteen to go with him, and on the morning of his departure had secretly told her to put up her things in a bundle and meet him at a certain spot, and she accordingly left her father's house and met the prisoner, and the two travelled up to London together; this was held to be a "taking." R. v. Mankletow (1853), 1 Dears. C.C. 159, 22 L.J.M.C. 115. Jervis, C.J., in delivering judgment, said:-It is unimportant under the section on which this indictment is framed whether the girl consented or not to go away with the man. When the prisoner met the girl at the appointed place there was then a taking of her. The statute was framed for the protection of parents. Ibid. R. v. Booth (1872), 12 Cox C.C. 231.

Where a man induces a girl under sixteen by promises of what he will do for her to leave her father's house and live with him, he may be convicted of this offence, although he is not actually present or assisting her at the time she leaves. R. v. Robb (1864), 4 F. & F. 59. If, however, the going away was entirely voluntary on the girl's part there can be no conviction under this section. Ibid. But as to children under fourteen see sec. 316.

So where a girl left her father without any persuasion, inducement or blandishment held out to her by the defendant, so that she had got fairly away from home and then went to the defendant, it may be his moral duty to return her to her father's custody, yet his not doing so is no infringement of this section, for it does not say he shall restore her, but only that he shall not take her away. R. v. Olifier (1866), 10 Cox C.C. 402.

If the jury believe that the mother having the custody of the girl has countenanced the daughter in a lax course of life, by permitting her to go out at night and to dance at públic houses, the case is not within the intent of the statute, but is one where what had occurred, though unknown to her, could not be said to have happened against her will. R. v. Primelt (1858), 1 Foster & F. 50, per Cockburn, C.J.

It may be doubted whether it would be an offence to take away a girl against the consent of her parent, but by the consent of one who has the temporary care of her. Archbold's Cr. Plead. 22nd ed., 858; 1 East P.C.

457.

It is also doubtful whether, if the parent once consent, but afterwards dissent, a subsequent taking away can be said to be against the will of the parent. Calthrop v. Axtel (1686), East P.C. 457, 3 Mod. 168.

Where a girl lived with her father and while on the street the prisoner met her and induced her to go with him to a neighbouring town where he seduced her, and then brought her back, not knowing who she was or whether she had a father living, but not believing that she was a girl of the town, it was held that as there was no evidence to shew that the prisoner had reason to know that the girl was under her father's protection, a conviction could not be supported. R. v. Hibbert (1869), L.R. 1 C.C.R. 184, 38 L.J.M.C. 61.

And where the prisoners found the girl in the street by herself and invited her to go with them and one of them kept her in an empty house with him all night and had intercourse with her, and there was no evidence as to the purpose for which the girl had left home, an acquittal was directed upon the ground that the girl was not taken out of the possession of anyone. R. v. Green (1862), 3 F. & F. 274.

Penalty.

Child.
Intent.

Abduction. Harbouring ab

ducted child.

Possession in good faith.

This offence is distinct from the offence of seduction and a conviction under this section does not preclude a conviction for seduction. R. v. Smith (1890), 19 O.R. 714; following R. v. Handley (1833), 5 C. & P. 565 and R. v. Vandercombe and Abbott (1796), 2 Leach C.C. 708.

Proof of age.]-See sec. 984.

Where there is no abduction by force there must be a persuasion by the accused, by blandishment or otherwise, to constitute an offence of constructive abduction under Code sec. 315; and if, without such persuasion the girl suggests going away with him and he thereupon takes the merely passive part of yielding to the suggestion, it is not an offence under the section. Rex v. Jarvis (1903), 20 Cox C.C. 249.

at

Form of indictment.]-That A. on unlawfully did take one B. out of the possession and against the will of E., her father, she, the said B., being then an unmarried girl, and under the age of sixteen years, to wit, of the age of fifteen years against the form of the Criminal Code sec. 315.

316. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, with intent to deprive any parent or guardian of any child under the age of fourteen years, of the possession of such child, or with intent to steal any article about or on the person of such child, unlawfully,(a) takes or entices away or detains any child; or,

(b) receives or harbours any such child, knowing it to have been unlawfully taken, enticed away or detained with intent aforesaid.

2. Nothing in this section shall extend to any one who gets possession of any child, claiming in good faith a right to the possession of the child. 63-64 V., c. 46, s. 3.

Evidence.]-The English statute, 24-25 Vict., ch. 100, sec. 56, is more limited in its terms. By it in order to constitute the offence the accused must have "either by force or fraud" led or taken away or decoyed or enticed away or detained any child under the age of fourteen years with intent, etc. It has been held that the offence under that Act may be proved by shewing force or fraud exercised either upon the guardian of the child or upon the child taken or detained, or upon any other person. R. v. Bellis (1893), 62 L.J.M.C. 155, overruling R. v. Barrett (1885), 15 Cox C.C. 658.

And where the prisoner was indicted for that she did feloniously and unlawfully by fraud detain a child under the age of fourteen with intent to deprive the mother of the possession of her, it was held that she was rightly convicted upon evidence that the child had been in the service of the prisoner and was missing and could not be found, and that she gave different accounts of what had become of the child, but implying that she had given her up to some third person although there was no evidence that the child was still in her actual custody, nor indeed any evidence as to where she was. R. v. Johnson (1884), 15 Cox C.C. 481.

Proof of age.]-See sec. 984.

Guardian.]-See sec. 240 for statutory definition.

Whether the parent may be liable for child stealing.]-The English statute, 54 Geo. III. ch. 101, was the foundation of the Canadian statutes

dealing with the offence of child stealing as an offence separate from that of forcible abduction.

The Revised Act respecting offences against the person, R.S.C., 1886, ch. 162, declared the Canadian law in very similar terms to the English statute, by sec. 45, consolidated from the Canada statute 32-33 Vict., ch. 20, sec. 57.

The Revised Statute of 1886 declared an exception by a proviso that "no person who has claimed any right to the possession of such child, or is the mother, or has claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child or taking such child out of the possession of any person having the lawful charge thereof."

The words "by force or fraud" which in section 45 of the Act respecting offences against the person, R.S.C., 1886, ch. 162, limited the taking or detention do not appear in the Code, and the clause as to the mother and putative father of an illegitimate child, has also been dropped.

The question whether the English statute (now 48-49 Vict., ch. 69, sec. 56) does not necessarily exclude the parent as a party liable to criminal proceedings thereunder, does not appear to have directly arisen in England.

In Ontario the question arose in the extradition case of R. v. Watts (1902), 5 Can. Cr. Cas. 246, 3 O.L.R. 368, where it was held that the child's own father may be guilty of child stealing within the Code, if after a divorce by a court of competent jurisdiction and the award thereon of the custody of the child to the mother, the father wilfully removes the child from her custody. And that an objection by the husband to the validity of the divorce on the ground of collusion cannot, where the collusion is denied on oath, be adjudicated upon by the extradition commissioner, but extradition should be ordered notwithstanding such objection and the prisoner left to his right to contest the divorce decree at his trial by the foreign court. And in a Montreal extradition case, it was afterwards held that where a divorce decree of a court of competent jurisdiction in the United States has awarded the custody of a child to the father as against the mother, and the mother thereafter removes and conceals the child for the purpose of evading the decree, a primâ facie case for extradition is thereby made out against the mother upon a charge of child-stealing. And semble, the offence of child-stealing under the Code, may be complete against the child's mother although the father, to whom the child's custody has been awarded, has never had any actual separate possession of the child. Re Lorenz (1905), 9 Can. Cr. Cas. 158, 7 Que. P.R. 101 (Hall, J.).

The contrary view has been taken in Pennsylvania, under a statute in similar terms to the English statute, 54 Geo. III., ch. 101, above mentioned, it being held that such a statute has no application to the father of a legitimate child, who, having quarrelled with his wife, has taken the child away from her. Burns v. Commonwealth (1889), 18 Atl. Rep. 756. The statute was designed to prevent and to punish kidnapping, and not to prohibit one parent from asserting a claim to the possession of his or her child against the will and to the exclusion of the other; it has no relation to such disputes, and makes no change in the laws by which they are regulated and settled. Ibid.

A person claiming a right to the possession of the child may, notwithstanding such claim of right, be guilty of conspiring with another to commit the offence for which this section provides. R. v. Duguid (1906), 21 Cox 200, 22 Times L.R. 506.

at

unlawfully did

Form of indictment.]—That A. on take away and detain one N., a child then under the age of fourteen years, to wit, of the age of ten years, with intent thereby then to deprive one

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.