Punishment.]—Accessories after the fact to treason are liable to two years' imprisonment under sec. 76. And by sec. 267 "every one is guilty of an indictable offence and liable to imprisonment for life who is an accessory after the fact to murder." Where no express provision is made by the Code for the punishment of an accessory after the fact to an indictable offence, for which the principal would be liable, on a first conviction, to imprisonment for fourteen years or over or to imprisonment for life, such accessory is liable to seven years' imprisonment. Section 574. And where the principal cannot be sentenced to imprisonment for so long a term as fourteen years, the accessory after the fact to any other indictable offence is liable to one half of the longest term to which a person the principal may be sentenced, except where there is an express provision of law for the punishment of such accessory. Section 575. Assisting prisoner to escape.]-See secs. 191-195. Indicting accessory after the fact without proceeding against principal.] -Every one charged with being an accessory after the fact to any offence, may be indicated, whether the principal offender or other party to the offence or person by whom such property was so obtained has or has not been indicted or convicted, or is or is not amenable to justice, and such accessory may be indicted either alone as for a substantive offence or jointly with such principal or other offender or person. Code sec. 849. 72. Every one who, having an intent to commit an offence, Attempts. does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended whether under the circumstances it was possible to commit such offence or not. 2. The question whether an act done or omitted with intent Question of to commit an offence is or is not only preparation for the com- law. mission of that offence, and too remote to constitute an attempt to commit it, is a question of law. 55-56 V., c. 29, s. 64. Attempts.]-Special provision is made by the Code in respect of "attempt" offences as follows: To break prison, sec. 188; to commit sodomy, sec. 203; to procure girl to have unlawful carnal connection with a third party, sec. 216; to commit murder, sec. 264; to commit suicide, sec. 270; to cause bodily injuries by explosives, sec. 280; to commit rape, sec. 300; to defile children under fourteen, sec. 301; to set fire to crops, sec. 514; to wreck, sec. 523; to injure or poison cattle, sec. 536; to commit other indictable offences punishable by imprisonment, secs. 570 and 571; to commit other statutory offences, sec. 572. An assault with intent to commit an offence is an attempt to commit - such offence, and, on an indictment for rape, a conviction for an assault with intent to commit rape is valid. R. v. John (1888), 15 Can. S.C.R. 385, Code sec. 951. Full offence charged.]-When the complete commission of the offence charged is not proved, but the evidence establishes an attempt to commit the offence, the accused may be convicted of such attempt and punished accordingly. Code secs. 949 and 951. Attempt charged.]-When an attempt to commit an offence is charged, but the evidence establishes the commission of the full offence, the accused shall not be entitled to be acquitted, but the jury may convict him of the attempt, unless the court before which such trial is had thinks fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for the complete offence. Code sec. 950. After a conviction for such attempt the accused shall not be liable to be tried again for the offence which he was charged with attempting to commit. Code sec. 950 (2). Where a prisoner is indicted for an attempt to steal, and the proof establishes that the offence of larceny was actually committed, the jury may convict of the attempt, unless the court discharges the jury and directs that the prisoner be indicted for the complete offence. R. v. Taylor (1895), 5 Can. Cr. Cas. 89, 4 Que. Q.B. 226. This is a departure from the rule which prevailed before the Code, as to which see Leblanc v. R., 16 Montreal Legal News 187. Full offence and attempt both charged.]—Where on an indictment for a principal offence and for an attempt to commit such an offence, the evidence is wholly directed to the proof of the principal offence, the jury's verdict of guilty of the attempt only, will not be set aside, although there were no other witnesses in respect of the attempt than those whose testimony, if wholly believed, shewed the commission of the greater offence. R. v. Hamilton (1897), 4 Can. Cr. Cas. 251 (Ont.). It is within the province of the jury, to believe, if it sees fit to do so, a part only of a witness's testimony, and to disbelieve the remainder of the same witness's testimony, and it may therefore credit the testimony in respect of a greater offence only in so far as it shews a lesser offence. Ibid. Mens rea or intent.]—It is a general principle of the criminal law that there must be as an essential ingredient in a criminal offence some blameworthy condition of mind-something of the mind which is designated by the expression mens rea. It is also a principle of the criminal law that the condition of the mind of the servant is not to be imputed to the master. This principle applies also to statutory offences, with this difference, that it is in the power of the Legislature, if it so pleases, to enact that a man may be convicted and punished for an offence, although there was blameworthy condition of mind about him; but it lies on those who assert that the Legislature has so enacted to make it out convincingly by the language of the statute. Per Cave, J., in Chisholm v. Doulton, 22 Q.B.D. 736; cited by Osler, J.A., in R. v. Potter (1893), 20 Ont. App. 516, 523; Somerset v. Wade, [1894] 1 Q.B. 576; R. v. Vachon (1900), 3 Can. Cr. Cas. 558. no In order to constitute a crime it is necessary that there should be not only an act, but also a criminal intent. This is embodied in the maxim "actus non facit reum, nisi mens sit rea," 3 Inst. 107; Broom's Legal Maxims 226; R. v. Prince (1875), 2 C.C.R. 154; R. v. Tolson (1889), 23 Q.B.D. 168. Motive generally precedes intent, for a man usually has some inducement or cause for doing a thing before he makes up his mind to do it. There are some cases in which no more need be done to the criminal intent that to prove the mere doing of the act; as where the act is such as to shew within itself the guilty intent, so that there can be but one reasonable inference, which of necessity arises from the facts proved. Every sane man is presumed to contemplate the ordinary natural and proTownsend v. Wathen, 9 East 277; R. v. bable consequences of his acts. Dixon, 3 M. & S. 15. The question of fraudulent intent or guilty mind (mens rea) enters into the majority of criminal offences. In the recent case of Bank of N.S.W. v. Piper (1897), 66 L.J.P.C. 76, the law is stated as follows: "It is strongly urged that in order to the constitution of a crime whether common law or statutory, there must be a mens rea on the part of the accused, and he may avoid conviction by shewing that such mens rea did not exist. This is a proposition which their lordships do not desire to dispute; but the questions whether a particular intent is made an element of a statutory crime, and, where that is not the case, whether there is an absence of mens rea in the accused, are questions entirely different, and depend on different considerations. In cases where a statute requires a motive to be proved as an essential element of the crime, the prosecution must fail if it is not proved. On the other hand the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent. The case of Sherras v. De Rutzen, 64 L.J. M.C. 218; [1895] 1 Q.B. 918, is an instance of its absence." See note in 12 Can. Cr. Cas. 250. If a man knowingly does acts which are unlawful, the presumption of law is that the mens rea exists; and ignorance of the law will not excuse him. R. v. Mailloux, 3 Pugsley (N.B.) 493. Mens rea, in the legal sense of the expression, should not be confounded with a guilty conscience or evil intention. A statute, which prohibits an act, would be violated, though the act was done without evil intention, or even under the influence of a good motive. R. v. Hicklin. L.R. 3 Q.B. 360; Starey v. Chilworth Gunpowder Co., 24 Q.B.D. 90. And see article in Can. Law Jour. (1903), p. 691. Rebutting criminal intent.]—Drunkenness may be taken into consideration to explain the probability of a party's intention in the case of violence committed on sudden provocation. Pearson's Case (1835), 2 Lewin 144. So in cases of attempted suicide the mere fact of drunkenness is not an excuse for the crime, but it is "a material fact in order to arrive at the conclusion whether or no the prisoner really intended to destroy his life." Per Wightman, J., in Regina v. Doody (1854), 6 Cox C.C. 463. Motive.]—When any act done by any person is either a fact in issue, or is relevant to the issue, any fact which supplies a motive for such act is relevant, and proof of it is admissible even if such fact should tend to affect and damage such person's good character. Stephen's Digest of the Law of Evidence, article 7. While the law does not allow evidence of general bad character to be adduced in the first instance as a criminative circumstance, whenever it is necessary to prove a motive on the part of the defendant to commit the offence charged, it is competent to prove particular facts which are of a nature to shew a motive, even when they may injuriously affect his reputation, and the reason is that proof of the existence of a motive is not in itself a criminative circumstance but is only a circumstance which tends to remove the improbability of the act which has been proved to have been done having been done without criminal intent. R. v. Barsalou (No. 2) (1901), 4 Can. Cr. Cas. 347. A motive may, under peculiar circumstances, become an exceedingly important element in a chain of presumptive proof, as where a man, accused of the murder of his wife, has previously formed an adulterous connection with another female. On the other hand. the absence of any apparent motive is always a fact in favour of the accused. Best on Presumptions, p. 310. Intent should not be confounded with motive. The terms "intention" and "motive" are often used indiscriminately to denote the same thing, but motive and intention are really two different things, and a distinction ought to be made in the use of the terms. Motive is the moving cause or that which induces an act, while intent is the purpose or design with which it is done. Motive has to do with desire, and intent with will. Burrill's Circ. Evid. 283, 284. As to information illegally obtained or communi cated. Reference to place. Reference to communications. 'Document.' 'Model.' 'Sketch.' 'Office under His Majesty.' Treason. Bodily harm to His Majesty. Intention with overt act. PART II. OFFENCES AGAINST PUBLIC ORDER, INTERNAL AND EXTERNAL. Interpretation. 73. In the sections of this Part relating to information illegally obtained or communicated, unless the context otherwise requires, (a) any reference to a place belonging to His Majesty in- (b) expressions referring to communications include any (d) 'model' includes design, pattern and specimen; (f) 'office under His Majesty' includes any office or em- Treason and other Offences against the King's Authority and 74. Treason is, (a) the act of killing His Majesty, or doing him any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining him; or, (b) the forming and manifesting by an overt act an intention to kill His Majesty, or to do him any bodily harm tending to death or destruction, maim or wounding, or to imprison or to restrain him; or, (c) the act of killing the eldest son and heir apparent of Killing heir His Majesty, or the Queen consort of any King of the apparent. United Kingdom of Great Britain and Ireland; or, (d) the forming and manifesting, by an overt act, an inten- Intention. tion to kill the eldest son and heir apparent of His Majesty, with overt or the Queen consort of any King of the United Kingdom act. of Great Britain and Ireland; or, (e) conspiring with any person to kill His Majesty, or to Conspiring do him any bodily harm tending to death or destruction, to do His maim or wounding, or conspiring with any person to im- Majesty prison or restrain him; or, (f) levying war against His Majesty either bodily harm. Levying war. (i) with intent to depose His Majesty from the style, To depose or, Majesty. (g) conspiring to levy war against His Majesty with any Conspiring such intent or for any such purpose as aforesaid; or, to levy war. (h) instigating any foreigner with force to invade the said Instigating United Kingdom or Canada or any other of the dominions invasion. of His Majesty; or, (i) assisting any public enemy at war with His Majesty in Assisting such war by any means whatsoever; or, enemy. (j) violating, whether with her consent or not, a Queen con- Violating sort, or the wife of the eldest son and heir apparent, for person or the time being, of the King or Queen regnant. 2. Every one who commits treason is guilty of an indictable offence and liable to suffer death. 55-56 V., c. 29, s. 65; 57-58 V., c. 57, s. 1. Legislative power.]-There is no reason to suppose that it was not intended that the Parliament of Canada should have power to legislate regarding the crime of treason in Canada. It seems to be given when power is given to make laws for the peace, order and good government of Canada. Even jurisdiction to declare what shall be and what shall not be acts of treason, when committed within Canada, against the person of the Sovereign herself, might safely be committed to the Parliament of Canada when the Sovereign is a part of Parliament, and has also power of disallowance of Acts, even after they have been assented to by the GovernorGeneral. R. v. Riel, 1 Terr. L.R., at p. 58, per Killam, J.; R. v. Marais, [1902] App. Cas. 51. wife of heir apparent. Penalty. |