Sec. 239. Sec. 301. Carnally knowing girl under fourteen. Unchanged. Sec. 270. Sec. 302. Attempt to carnally know girl under four teen. Unchanged. The expression "not being his wife" used in section 301 is an exception, and if required to be stated in the indictment, and negatived, the omission thereof would be a defect which could be remedied by the Judge by an amendment under section 889: so that, where no objection is taken by the defendant before pleading, the omission of the words will not invalidate a conviction upon such an indictment. The objection thereto should be taken, by the defendant's counsel, before plea, by demurrer or by a motion to quash; and then the Court could have amended the indictment, and, not having done so, it was not open to him to take it subsequently. (73) An accused was committed for trial upon a charge of "unlawful assault with intent to carnally know." On the accused wishing to make election for speedy trial, the Crown contended that the charge was not one in which a speedy trial could be had, as it not only amounted, by its description in the warrant of commitment, to the charge of "attempt to commit rape," but it was the Crown's intention to indict the accused for this offence. Held that though the charge as worded in the commitment might be either that of "assault with intent to commit an indictable offence," punishable under section 263 (now section 296), and, as such, capable of speedy trial, or that of "attempt to commit rape," punishable under section 268 (now section 300) and, as such, not capable of speedy trial, the Court refused to receive the accused's election of speedy trial and left the responsibility with the Crown of preferring an indictment for the more serious charge. (74) Where the depositions on which the indictment for rape is founded shew that the prosecutrix's statements, relied upon by the Crown to shew that a complaint was made, were not spontaneous, but made in answer to questions by the police officer, evidence of her answers so made is inadmissible against the accused. (75) On a charge of rape, evidence is inadmissible, for the defence, of the general bad reputation of the prosecutrix for unchastity. (76) (73) R. v. Wright, 11 Can. Cr. Cas., 221; 39 N. S. R., 103. (74) R. v. Preston, 9 Can. Cr. Cas., 201. (75) R. v. Bishop et al., 11 Can. Cr. Cas., 30. (76) R. v. Bishop et al., Ib. 2ND EDIT. REVISED STATUTES 1906 REMARKS On a charge of aiding and abetting another to commit rape, if it appears that a man called as a witness for the prosecution had immediately prior to the offence been in the company of the prosecutrix under circumstances making it probable that he had had illicit connection with her, and that the man accused of the rape had taken the prosecutrix away from the witness, the witness may be cross-examined as to his relations with the prosecutrix for the purpose of shewing prejudice against the accused, and for this purpose is bound to answer whether he had had connection with the prosecutrix on that occasion. (76a) ABORTION. Sec. 272. Sec. 303. Using means to procure abortion. Unchanged. (7) Sec. 273. Sec. 304. Woman using means to procure abortion on herself. Unchanged. Sec. 274. Sec. 305. Supplying means to procure abortion. Sec. 271. Sec. 306. Killing Unborn Child. Unchanged. OFFENCES AGAINST CONJUGAL RIGHTS. Sec. 275. Sec. 307. Bigamy defined. Bigamy is, (a) the act of a person who, being married, goes through a form of marriage with any other person in any part of the world; or (b) the act of a person who goes through a form of marriage in any part of the world with any person whom he or she knows to be married; or (c) the act of a person who goes through a form of marriage with more than one person simultaneously, or on the same. day. 2. The fact that the parties would, if unmarried, have been incompetent to contract marriage shall be no defence upon a prosecution for bigamy. 3. No one commits bigamy by going through a form of marriage, (a) if he or she in good faith and on reason (76a) R. v. Finnessey, 10 Can. Cr. Cas., 347. (77) Except in the wording and without altering the meaning and effect. 2ND EDIT. REVISED STATUTES 1906 REMARKS able grounds believes his wife or her husband to be dead; or (b) if his wife or her husband has been continually absent for seven years then last past and he or she is not proved to have known that his wife or her husband was alive at any time during those seven years; or (c) if he or she has been divorced from the bond of the first marriage; or (d) if the former marriage has been declared void by a court of competent juris diction. 4. No person shall be liable to be convicted of bigamy in respect of having gone through a form of marriage in a place not in Canada, unless such person, being a British subject resident in Canada, leaves Canada with intent to go through such form of marriage. Meaning Unchanged. (77a) 5. Every form of marriage shall for the purpose of this section be valid, notwithstanding any act or default of the person charged with bigamy, if it is otherwise a valid form. Sec. 276. Sec. 308. Punishment of bigamy. Unchanged. A guilty mind is an essential ingredient of the offence of bigamy, and if a woman, after obtaining information that the man with whom she has gone through a form of marriage is already married, leaves him and marries another man, her honest and reasonable belief that the man she left had a wife living, is a good defence to a charge of bigamy; and it seems that the fact of such honest and reasonable belief may be found from the circumstances of the case, without strict proof of the man's former marriage. (78) Where both parties to a marriage in Canada are of Canadian domicile, but afterwards become bona fide domiciled in a foreign country, a decree of divorce obtained in the foreign country, while they are domiciled there, will be valid in Canada as a defence to a prosecution of either of them for bigamy in having re-married. A decrce of divorce granted by a court foreign to the domicile of both parties, pronounced by consent or collusion of the parties both temporarily within its jurisdiction and which recites due proof of (77a) But the first sentence of subsection 2 of the old sec. 275, as to 'form of marriage' is made into par. (a) of section 240, ante. (78) R. v. Sellars, 9 Can. Cr. Cas., 153. 2ND EDIT. REVISED STATUTES 1906 REMARKS grounds sufficient under the foreign law for dissolving a marriage, is invalid in Canada, if it be proved that such recital is incorrect, and that, in fact, no evidence was given. (79) Sec. 277. Sec. 309. Feigned marriages. Sec. 278. Sec. 310. Polygamy. Unchanged. It has recently been held by a district magistrate in the province of Quebec, that a man who, after going through the form of marriage with a woman known to him to be the wife of another man, cohabits with her in open continuous adultery in Canada claiming to be her second husband and falsely pretending that she had obtained a divorce, is properly convicted of unlawfully cohabiting in conjugal union by an illegal form of contract and by mutual consent, contrary to the provisions of the Code prohibiting polygamy. (80) The accused, in this case, may have been guilty of bigamy. if his pretension that the woman had obtained a divorce from her first husband were shewn to be false to his (the accused's) knowledge; but, in view of several previous decisions to the effect that section 278 (now section 310) of the Code was intended to apply to Mormons, the district magistrate's holding does not seem to be correct. (81) UNLAWFUL SOLEMNIZATION OF MARRIAGE. authority. Sec. 279. Sec. 311. Solemnization of marriage without lawful Unchanged. Sec. 280. Sec. 312. Solemnization of marriage contrary to law. Unchanged. ABDUCTION. Sec. 313. Abduction of a woman of any age. Sec. 281. Unchanged. Sec. 282. Sec. 314. Abduction of an heiress from motives of lucre; and allurement and taking or detaining of a woman under twenty-one against the will of her parents. Unchanged. Sec. 283. Sec. 315. Abduction of girl under sixteen. Unchanged. Where there is no abduction by force, there must be persuasion by the accused by blandishment or otherwise, to constitute an offence of constructive abduction under this section; and if, without such persuasion, the girl suggests going away with him, and he (79) R. v. Woods, 7 Can. Cr. Cas., 226. (80) R. v. John Harris, 11 Can. Cr. Cas., 254. (81) R. v. Labrie, Mont. Law R., 7 Q. B., 211; R. v. Liston, 34 L. C. J., 546. 2ND EDIT. REVISED STATUTES 1906 REMARKS thereupon takes the merely passive part of yielding to the suggestion, it is not an offence under the section. (82) Sec. 284. Sec. 316. Abduction of children under fourteen. 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. Slightly changed, (not in meaning but in the wording), as here set forth. The child's own father may be guilty of child stealing within the above section of 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. (83) A father having, under the law of the province of Quebec, the care of his minor children may, with the consent of the management of the school, place his child in a reformatory school authorized, under the old section 956 (now section 29 of the Prisons and Reformatories Act), for the commitment of youthful offenders; and the detention of the child for the purposes of discipline and subject to release by the father at any time, will not be interfered with by habeas corpus issued on behalf of the child by his mother. (84) DEFAMATORY LIBEL. Sec. 285. Sec. 317. Defamatory Libel defined. Sec. 286. Sec. 318. Publishing defined. Unchanged. Sec. 287. Sec. 319. Publishing on invitation or challenge. Unchanged. (82) R. v. Jarvis, 20 Cox C. C., 249. (83) R. v. Watts, 5 Can. Cr. Cas., 246. (84) Re A. B., 9 Can. Cr. Cas., 390. |