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what might be called passive or permissive negligence. As to whether a corporation can be held guilty of express Argument. malice: Nevill v. Fine Arts Insurance Co., [1897] A. C. 68. Canadian cases are Reg. v. Chapman, 1 O.R. 582; Reg. v. Eaton, 2 Can. Crim. Cas. 252; Reg. v. Toronto Ry. Co. Ib. 471. At first corporations were held liable only for non-feasance, but now a corporation may be indicted for a misfeasance: Reg. V. Great North of England Ry. Co., 9 Q. B. 315; Reg. v. United Kingdom Elec. Tel. Co., 2 B. & S. 647 n; Reg. v. Longton Gas Co., 2 E. & E. 664; Starcy v. Chilworth Co., 17 Cox C. C. 58; Commonwealth v. New Bedford, 68 Mass. 339. The death of the woman was not the natural consequence of the breach of statutory or other duty.

A. J. Andrews for the Crown. Reg. v. Birmingham Ry. Co. 3 Q. B. 223, is the first case of an indictment against a corporation. The Court has power to sentence where none is given by Parliament or sentence provided inappropriate Rex v. Thomas, Lee's Cases Temp. Hardwicke, 279; Hawkins, P. C., Vol. 2, p. 58, s. 13. In sections 635 to 639 the Criminal Code, 1892, directs the Court to award such judgments as are applicable to corporations. The judgment manifestly applicable is a fine. The common law provided a fine for imprisonment: Chitty on Criminal Law, Vol. 1, p. 711; Taschereau, 959; Thompson on Corporations, Vol. 5, § 6418. The death in this case was the direct consequence of the act charged, and this distinguishes the case from Reg. v. Pocock, 17 Q. B. 38. A corporation is liable for libel: Thompson on Corporations, Vol. 5, § 6421. For any

public offence which it can commit, a corporation may be indicted the same as a natural person: State v. First Nat. Bank, 51 N. W. R. 587; Thompson, Vol. 5, § 6431; Telegram Newspaper Co. v. Commonwealth, 52 N. E. R. 445; United States v. John Kelso Co. 86 Fed. 304;

An ac

1900. State v. Passaic County Society, 23 Atl. R. 680. Argument, tion for malicious prosecution will lie against a corporation: Cornford v. Carlton Bank, [1900] 1 Q. B. 22. If there is no punishment there would be no use going to trial and the indictment may as well be quashed.

BAIN, J.-The accused corporation demurs to the first count of the indictment on the ground that it does not charge any indictable offence, and to the second count, which is one in the usual form for manslaughter, on the ground that an indictment for manslaughter will not lie against a corporation.

The first count is objectionable in that it does not more directly charge the accused with having committed a specified indictable offence. But what it contains is sufficient, I think, to give the accused notice that it is charged with having caused the death of the person named by its negligence; and for the purpose of disposing of the demurrer, I may treat the whole indictment as one for manslaughter, the alleged homicide having occurred under the circumstances set forth in the first count.

The grounds on which counsel for the Crown supports the indictment are these: By section 220 of the Criminal Code, 1892, homicide is declared to be culpable when it consists in the killing of any person either by an unlawful act, or by an omission, without lawful excuse, to perform or observe any legal duty. Then it is provided by section. 213 that "everyone who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes or maintains anything whatever which in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable precautions against, and use reasonable care to avoid, such danger, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform such duty." This provision, it is urged, applies as well to corporations as to individuals; the Code in sections 635 to 639 makes

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provision for corporations against which a bill of indict- 1900. ment has been found appearing in the Court and pleading Judgment. or demurring to the indictment and for proceedings in default of appearance; and it is further urged that in case of conviction, the Court can sentence the corporation by virtue of the provision in section 639 that the Court in case. of conviction "may award such judgment and take such other and subsequent proceedings to enforce the same as are applicable to convictions against corporations."

By section 3, sub-section (t), of the Code the word "persons" and other expressions of the same kind include all public bodies, bodies corporate, societies and companies; and the words " every onc" in section 213 are doubtless wide enough in themselves to make the section applicable to corporations. But by the above sub-section (t) these general words are to include bodies corporate, etc., only in relation to such acts and things as they are capable of doing and owning respectively;" and in support of the demurrer Mr. Howell argues that a corporation as such is not in law capable of committing manslaughter, and that even if it were convicted of such an offence, the law has made no provision for punishing it therefor; and counsel for the Crown concedes that, if a corporation cannot be punished after a conviction for manslaughter, the indictment will not lie.

The opinion I have come to after consideration is that there is no authority that would justify me in holding that an indictment will lie against a corporation for manslaughter; and that, even if a corporation could be indicted and convicted for such an offence, the conviction would be futile, for there is no provision of law under which any punishment could be imposed.

In Reg. v. Aspinall, 2 Q. B. D. 48, Brett, L. J., said: "An indictment must contain an allegation of every fact necessary to constitute the criminal charge preferred by it. As in order to make acts criminal they must always be

1900. done with a criminal mind, the existence of that criminalJudgment. ity of mind must always be alleged." This criminal or BAIN, J. guilty mind has always been an essential element in the

legal conception of crime in English law; and as a corporation, as it used to be said, is invisible and exists only in contemplation of law (Hawkins, P. C., Bk. 1, c. 65, s. 13), and so cannot be actuated by a personal guilty mind, the opinion prevailed at one time that it could not be held criminally liable; and this view was pressed in argument as late as in Reg. v. Birmingham and Gloucester Railway Co.. 3 Q. B. 223. But this guilty mind may legally exist either when the mind is actively or wilfully at fault, or when it is only passively or negatively to blame as in cases of negligence; and although a corporation can act only through its agents, and it is a a principle of law that a principal is not criminally responsible for the acts of an agent, it has come to be settled law that a corporation may in certain cases be held amenable to the criminal law. "Many acts, which, if productive of harm to a single individual are mere torts, become crimes when they result in damage to a large number of people, and all proceedings which are invasions of the rights or privileges, not of some one individual specially, but of the public at large, or which are detrimental to the general well-being or to the interests of the State, similarly fall under the category of crimes." Brice on Ultra Vires, p. 441. Crimes of this sort may be described as public torts; and in regard to these corporations may be held criminally liable both for non-feasance and for misfeasance. But this is as far as the law has gone; and, as the law stands at present, it seems that a corporation cannot be made criminally liable for such acts as are spoken of as crimes in the more popular sense of the word, that is, crimes of which the essence is the personal criminal intent or malice, or negligence carried to an extent that it amounts to wilfully incurring the risk of causing injury

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to others. Whether, if a corporation can be held crimin- 1900. ally liable, as it certainly can, for one class of cases result- Judgment. ing from negligence, it is illogical not to extend its criminal liability to manslaughter resulting from negligence, it is not for me to say; but, sitting as a trial Judge, I cannot say that I have any doubt that as the law stands at present, I cannot so extend it.

It is admitted that sections 213 and 220 of the Criminal Code merely embody what were well recognized principles of the common law, and that these sections do not extend the criminal responsibility of corporations beyond what it was before they were passed. Now the principles of the common law prevail not only in England and in Canada but throughout the United States as well; and in all these countries many fatal accidents like the one in question must have happened through the same kind of negligence on the part of corporations that is charged here; and it is a significant fact that, as counsel for the Crown has to admit, no case can be found in which a corporation has been convicted for manslaughter. In a case of this kind the absence of any precedent affords a strong argument against the validity of the indictment; and, besides this negative authority, there are, also, the opinions of several eminent English Judges to be found in reported cases, that a corporation cannot be indicted for such a crime as manslaughter. Of these cases it will be sufficient if I refer to Reg. v. Birmingham and Gloucester Ry. Co., 3 Q. B. 223; Reg. v. Great North of England Ry. Co. 9 Q. B. 315; Reg. v. Pocock, 17 Q. B. 34; Pharmaceutical Society v. London Supply Association, 4 Q. B. D. 313; and nearly all the leading text books, both on criminal law and on corporations, contain opinions to the same effect.

On these grounds I would have to allow the demurrer to the indictment; but there is the additional objection to it which, also, I think, would have to prevail, that a corporation cannot be punished for manslaughter. In Phar