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535. Every one is guilty of an offence and liable, on sum- Injuries to mary conviction, to a penalty not exceeding five dollars over roots or plant growand above the amount of the injury done, or to one month's ing elseimprisonment with or without hard labour, who wilfully de- where. stroys, or damages with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being a garden, orchard or nursery ground.

offence.

2. Every one who, having been convicted of any such offence, Subsequent afterwards commits any such offence is liable, on summary conviction, to three months' imprisonment with hard labour 55-56 V., c. 29, s. 510.

Colour of right.]-See sec. 541.

Proving previous conviction.]—See sec. 982.

Cattle and Other Animals.

536. Every one is guilty of an indictable offence and liable Penalty. to two years' imprisonment who wilfully,

(a) attempts to kill, maim, wound, poison or injure any Attempt to cattle, or the young thereof; or,

injure cattle.

(b) places poison in such a position as to be easily partaken Poison of by any such animal. 55-56 V., c. 29, s. 500.

cattle.

animals.

537. Every one is guilty of an offence and liable, on sum- Injuries to mary conviction, to a penalty not exceeding one hundred dollars other over and above the amount of injury done, or to three months' imprisonment with or without hard labour, who wilfully kills, maims, wounds, poisons or injures any dog, bird, beast, or other animal, not being cattle, but being either the subject of larceny at common law, or being ordinarily kept in a state of confinement, or kept for any lawful purpose.

2. Every one who, having been convicted of any such offence, Subsequent afterwards commits any offence under this section, is guilty offence. of an indictable offence, and liable to a fine or imprisonment, or both, in the discretion of the court. 55-56 V., c. 29, s. 501.

As to injuries to cattle see sec. 510 (B) (b), and the statutory definition of the word cattle in sec. 2 (5).

Punishment on indictment.]-See sec. 1052 as to offences under the second sub-section.

Enforcing penalty on summary conviction.]—See sec. 739 and 740.

Threats by letters to

injure cattle.

Injuries to other property.

Penalty.

Damage.

Imprisonment.

Award of costs and damages to owner.]-Where separate convictions have been irregularly made upon one information for killing two dogs, the magistrate may return to a certiorari a single amended conviction conforming to the minute of adjudication and apportioning the fine and damages for the killing of each dog. The award of costs to the owner of the dog on whose behalf his wife had laid the information, instead of to the informant is a mere irregularity which is cured by sec. 1124 of the Code. Ex parte Grey (1906), 12 Can. Cr. Cas. 481 (N.B.).

538. Every one is guilty of an indictable offence and liable to two years' imprisonment who sends, delivers or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing threatening to kill, maim, wound, poison or injure any cattle. 55-56 V., c. 29, s. 502.

Under sec. 510 it is an indictable offence to wilfully destroy or damage any cattle, or the young thereof, by killing, maiming, poisoning or wounding, and by sec. 2 (5) the term "cattle" includes any horse mule, ass, swine, sheep or goat, as well as any neat cattle or animal of the bovine species, and by whatever technical or familiar name known, and shall apply to one animal as well as to many. This definition seems wide enough of itself to include the young of any of the animals of the classes mentioned. It will be observed that threats to kill a dog or other animals not being cattle (see sec, 537) are not within this section.

Cases not Specially Provided for.

539. Every one who wilfully commits any damage, injury or spoil to or upon any real or personal property, either corporeal or incorporeal, and either of a public or private nature, for which no punishment is hereinbefore provided, is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty dollars, and such further sum, not exceeding twenty dollars, as appears to the justice to be a reasonable compensation for the damage, injury or spoil so committed, to be paid in the case of private property to the person aggrieved.

2. If such sums of money, together with the costs, if ordered, are not paid either immediately after the conviction, or within such period as the justice, at the time of the conviction appoints, the justice may cause the offender to be imprisoned for any term not exceeding two months, with or without hard labour. 55-56 V., c. 29, s. 511.

Evidence.]-In Gayford v. Chouler, [1898] 1 Q.B. 316, the defendant walked across the respondent's field after notice to desist, and injured the high grass to the extent of 6d., and it was held by Day and Lawrance, JJ., that this constituted a malicious injury to property, for which the appellant could properly be convicted.

In Roper v. Knott, [1898] 1 Q.B. 686, the defendant was a milk carrier in the employment of the prosecutor, and the alleged offence consisted in

adding water to the milk delivered to him for carriage to the prosecutor's customers. The magistrate found that the addition was made for the purpose of enabling the defendant to make a profit for himself by selling the surplus milk and not accounting for it, but that there was no intention to injure the prosecutor. The court for Crown cases reserved held that an intention to injure the owner of the property was not essential to the offence and that the defendant should be convicted.

518.

Railway property.]-See the Railway Act and Code secs. 510, 517 and

Uncertainty in conviction.]-Upon a summary conviction under Code sec. 539 for wilful injury to property it is necessary that the conviction should specify the particular act done and the nature of the property damaged, otherwise the conviction will be void for uncertainty and will not support a commitment in similar terms. The King v. Leary, 8 Can. Cr. Cas. 141.

But by Code sec. 725, "no information, summons, conviction, order or other proceeding shall be held to charge two offences, or shall be held to be uncertain on account of its stating the offence to have been committed in different modes or in respect of one or other of several articles, either conjunctively or disjunctively."

Nor is it a sufficient objection to an information or summary conviction that it does not contain the name of the person injured or that it does not state who is the owner, or specify the means by which the offence was committed, or that it does not name or describe with precision any person or thing but particulars may be ordered to be given by the prosecutor as to these, if the justice thinks it necessary for a fair trial. Code sec. 723.

A conviction which alleged that the defendant unlawfully and maliciously committed damage, injury and spoil to and upon the real and personal property of the prosecutor, but did not allege the particular act done and the nature and quality of the property damaged, was held bad for uncertainty. Re Donelly, 20 U.C.C.P. 165; R. v. Spain (1889), 18 Ont. R. 385; R. v. Coulson (1893), 1 Can. Cr. Cas. 114.

A conviction under this section should clearly shew whether the damage, injury or spoil complained of, is done to real or personal property, stating what property, and what is the amount which the justice has ascertained to be reasonable compensation. R. v. Caswell (1870), 20 U.C.C.P. 275.

Claim of right.]-See secs. 540 and 541.

Limitation.

Fair claim

540. Nothing in the last preceding section extends to,-
(a) any case where the person acted under a fair and reason- of right.
able supposition that he had a right to do the act com-
plained of; or,

(b) any trespass, not being wilful and malicious, committed Sporting.
in hunting or fishing, or in the pursuit of game. 55-56 V.,
c. 29, s. 511.

'Claim of right.]-In R. v. Clemens, [1898] 1 Q.B. 556, the court for Crown cases reserved (Russell, C.J., and Grantham, Wright, Bigham and Darling, JJ.), laid down that the proper direction to be given to a jury on an indictment for malicious injury to property where it is claimed by the

Colour of right.

Partial interest.

Fraud.

Penalty.

Ill-treating animal.

defendant that the act was done in the assertion of a right, is: Did the defendants do what they did in exercise of a supposed right? And if they did, but on the facts before them the jury are of opinion that the defendants did more damage than they could reasonably suppose to be necessary for the assertion or protection of the alleged right, than that the jury ought to find them guilty of malicious damage. In this case two wooden structures were erected on a piece of meadow land on the sea shore, over which the defendants claimed to have certain rights of user for recreation and for mending and drying nets, etc., and the defendants in the assertion of these rights pulled down the buildings and threw them into the sea. The court held that this was an excess of damage for which they might properly be convicted.

On a prosecution for malicious damage to property, the accused cannot claim that they were acting under a fair and reasonable supposition that they had a right to do the act complained of, if it appears that the supposed right was one which, under the circumstances, could not exist in law although the accused had a bona fide belief that these acts were legal. White v. Feast, L.R. 7 Q.B. 353, 36 J.P. 36; Brooks v. Hamlyn (1899), 63 J.P. 215.

Under this section the magistrate's jurisdiction in respect of a charge of wilful injury to property is not ousted unless the act was done under a fair and reasonable supposition of right, and the magistrate has jurisdiction to summarily try the charge notwithstanding the mere belief of the accused that he had a right to do the act complained of. R. v. Davy (1900), 4 Can. Cr. Cas. 28 (Ont. C.A.).

541. Nothing shall be an offence under any of the foregoing provisions of this Part unless it is done without legal justification or excuse, and without colour of right.

2. Where the offence consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being an offence, and if total, shall not prevent his act being an offence, if done with intent to defraud. 55-56 V., c. 29, s. 481.

"Colour of right."]-The "colour of right" on the part of the defendant, which under this section removes the criminal character of an act of damage to property, means an honest belief in a state of facts, which if it actually existed, would constitute a legal justification or excuse. The King v. Johnson, 8 Can. Cr. Cas. 123, 7 O.L.R. 525.

Arson where property owned by accused.]—See note to sec. 511.

Cruelty to Animals.

542. Every one is guilty of an offence and liable, on summary conviction before two justices, to a penalty not exceeding fifty dollars, or to three months' imprisonment with or without hard labour, or to both, who,—

(a) wantonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird, or any wild animal or bird in captivity; or,

(b) while driving any cattle or other animal is, by negli- Injures by
gence or ill-usage in the driving thereof, the means where- ill-usage.
by any mischief, damage or injury is done by any such
cattle or other animal; or,

(c) in any manner encourages, aids or assists at the fight- Fighting of
ing or baiting of any bull, bear, badger, dog, cock, or other animal.
kind of animal, whether of domestic or wild nature. 55-56

V., c. 29, s. 512; 58-59 V., c. 40, s. 1.

Unnecessarily beats, etc.]-"Unnecessarily" here means "without good reason." Ford v. Riley, 23 Q.B.D. 203; Murphy v. Manning, 2 Ex. D. 307; R. v. McDonagh, 28 L.R.Ir. 204.

Cruelty.]-The use of an overdraw check rein on a horse is ordinarily not an offence under this section although it causes discomfort to the ⚫ animal. Society v. Lowry (1894), 17 Montreal Legal News 118.

The cutting of the combs of cocks to fit them for fighting or winning prizes at exhibitions has been held to be cruelty. Murphy v. Manning, L.R. 2 Ex. D. 307; but as to dishorning cattle the better opinion appears to be that it is not an offence; Callaghan v. Society, 11 Cox C.C. 101; although it was held to be in Ford v. Wiley, L.R. 23. Q.B.D. 203.

532.

The spaying of sows is not cruelty. Lewis v. Fermor, L.R. 18 Q.B.D.

In Benford v. Sims, [1898] 2 Q.B. 641, a person was accused under the Summary Jurisdiction Acts of cruelly ill-treating a horse by causing it to be worked while in an unfit state, and was held to be properly convicted, although the offence actually proved was that he had knowingly counselled the owner of the horse to cause the cruelty to be committed. (Code sec. 69).

In King v. Cable, [1906] 1 K.B. 719 the defendant was convicted for that he did cruelly ill-treat, abuse and torture five cows by causing them to be over-stocked with milk. The defendant contended that the conviction was bad in that it was a conviction for five separate and distinct offences; but the Divisional Court affirmed the conviction on the ground that an act or omission affecting several animals may constitute a single offence. And see Code sec. 725.

Section 542 expressly includes birds, but apart from the statutory definition it has been held that tame linnets are within the protection of a statute punishing cruelty to "domestic animals." Colam v. Pagett, 12 Q.B.D. 66.

Cruelty to animals in transit.]-See secs. 544 and 545.

Share of fine to informant.]-See sec. 1043.

Information.]-An information and summons thereon both describing the offence as "unlawfully abusing a mare contrary to sec. 542 of the Criminal Code," sufficiently describe an offence under this section without specific mention of any of the words "wantonly," "cruelly," or "unnecessarily," which are used in that section. The King v. Cornell, 8 Can. Cr. Cas. 416.

Appeal.]-Where an information is laid in the name of an individual describing himself as the agent of a society named, the society does not thereby become a party to the proceedings and it has no locus standi to appeal from the justices' order dismissing the charge; the notice of appeal must in such case be taken in the name of the agent personally, other

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