LIMITATIONS OF TIME FOR PROSECUTIONS OF OFFENCES 34 Art. 133. Frauds upon the Government : Six months. (See Art. 551d). Note. Art. 930, post, prescribes by two years actions suits or informations (not otherwise expressly limited) when they are for recovery of penalties, &c., referred to in Art. 929. 170. Blasphemous libels.-Every one is guilty of an indictable offence and liable to one year's imprisonment who publishes any blasphemous libel. TITLE IV. OFFENCES AGAINST RELIGION, MORALS AND 2. Whether any particular published matter is a blasphemous libel or not is a question of fact. But no one is guilty of a blasphemous libel for expressing in good faith and in decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religions subject. PART XII. A blasphemous libel is said to consist in the publication of any profane words vilifying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament or Christianity in general with intent to shock and insult believers, or to pervert or mislead the ignorant and unwary; and if a publication be 66 46 OFFENCES AGAINST RELIGION. full of scurrilous and opprobrious language,-if sacred subjects are treated with levity, if indiscriminate abuse is employed instead of argument, then a design to wound the religious feelings of others may be readily inferred. But "where the work is free from all offensive levity, abuse and sophistry, and is, in "fact the honest and temperate expression of religious opinions conscientiously held and avowed, it is not a blasphemous libel." (1) In one case Mr. Justice Erskine said: "It is indeed still blasphemy scoffingby "or irreverently to ridicule or impugn the doctrines of the Christian faith, yet "any man may without subjecting himself to any penal consequences, soberly and reverently examine and question the truth of those doctrines which have been assumed as essential to it." (2) 66 66 The Royal Commissioners in their report say in regard to blasphemous libel that they deem it inexpedient to define it otherwise than by the use of that expression. They then go on to say, "As however we consider that the essence of the offence (regarded as a subject for criminal punishment) lies in the outrage it inflicts upon the religious feelings of the community, and not in the expression of "erroneous opinions, we have added a proviso to the effect that no one shall be "convicted of a blasphemous libel only for expressing in good faith and decent language any opinion whatever upon any religious subject. We are informed "that the law was stated by Mr. Justice Coleridge to this effect in the case of ". R. v. Pooley tried at Bodmin in 1857. We are not aware of any later authority "on the subject." (1) Odgers Libel and Sl. 440, 441. (2) Shore v. Wilson, 9 Clark and Fin., 524-5. The law as laid down by Mr. Justice Coleridge in R. v. Pooley (1) and as since stated by Lord Chief Justice Coleridge in the recent case of R. v. Ramsay and Foote is in effect that the publication of any matter, which has reference to God, Jesus Christ, the Bible or the Book of Common Prayer intended and calculated to wound the feelings of mankind or to excite contempt and hatred against the church or religion or to promote immorality is blasphemous; but that matters couched in decent and proper language and published and intended in good faith to advance religions opinions, which the publisher regards as true, are not blasphemous merely because their publication is likely to wound the feelings of those who have contrary opinions or because their general adoption might tend by lawful means to alterations in religion or in the constitution of the church. (2) Lord Chief Justice Coleridge in the course of his charge in the case of R. v. Ramsay and Foote, said, "If the decencies of controversy are observed, even the "fundamentals of religion may be attacked, without a person being guilty of "blasphemous libel." By article 634 post, every one accused of publishing a defamatory libel may plead the truth of the matter published and that its publication was for the public benefit. But this does not apply to a blasphemous libel, the truth of which cannot be pleaded as a defence. (3) 171. Obstructing officiating clergyman.—Every one is guilty of an indictable ofience and liable to two years' imprisonment who (a.) by threats or force, unlawfully obstructs or prevents, or endeavours to obstruct or prevent, any clergyman or other minister in or from celebrating divine service, or otherwise officiating in any church, chapel, meeting-house, school-house or other place for divine worship, or in or from the performance of his duty in the lawful burial of the dead in any church-yard or other burial place. R.S.C., c. 156, s. 1. 172. Violence to officiating clergyman.-Every one is guilty of an indictable offence and liable to two years' imprisonment who strikes or offers any violence to, or, upon any civil process or under the pretence of executing any civil process, arrests any clergyman or other minister who is engaged in or, to the knowledge of the offender, is about to engage in, any of the rites or duties in the next preceding section mentioned, or who, to the knowledge of the offender is going to perform the same, or returning from the performance thereof. R.S.C., c. 156, s. 1. 173. Disturbing religious meetings.—Every one is guilty of an indictable offence and liable, on summary conviction, to a penalty not exceeding fifty dollars and costs, and in default of payment to one month's imprisonment, who wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behaviour, or by making a noise, either within' the place of such meeting or so near it as to disturb the order or solemnity of the meeting. R. S. C., c. 156, s. 2. (1) Steph. Dig. Cr. Law, 97; Odgers Libel and Sl. 446, 459. (2) R. v. Ramsay and Foote 48 L. T. 739; 15 Cox C. C. 231; SI. 688, 704; Steph. Dig. Cr. L. Art. 161. Odgers Lib. and M. C. 89; 11 Cox C. C. 19; 18 L. T. 395; Odgers Lib. and Sl. 440, 445. (3) Cooke v. Hughes R. and M. 115; R. v. Hicklin L. R., 3 Q. B. 374 ; 37 L. J. PART XIII. OFFENCES AGAINST MORALTY. 174. Sodomy.-Every one is guilty of an indictable offence and liable to imprisonment for life who commits buggery, either with a human being or with any other living creature. R.S.C., c. 157, s. 1. 175. Every one is guilty of an indictable offence and liable to ten years' imprisonment who attempts to commit the offence mentioned in the next preceding section. RS.C., c. 157, s. 1. See article 261 post, which provides that the consent of children under fourteen years is no defence to a charge of indecent assault. 176. Incest.-Every parent and child, every brother and sister, and every grandparent and grandchild, who cohabit or have sexual intercourse with each other, shall each of them, if aware of their consanguinity, be deemed to have committed incest, and be guilty of an indictable offence and liable to fourteen years' imprisonment, and the male person shall also be liable to be whipped: Provided that, if the court or judge is of opinion that the female accused is a party to such intercourse only by reason of the restraint, fear or duress of the other party, the court or judge shall not be bound to impose any punishment on such person under this section. 53, V., c. 37, s. 8. Incest, adultery and fornication are not common law offences; but in England they are criminally cognizable under the ecclasiastical law, although, as Sir James F. Stephen points out, the only one which is prosecuted in these days is incest, an instance of which he mentions as having been prosecuted in recent times in the Bishop of Chichester Court. (1) There being no competent Ecclesiastical Court in Canada, and the ecclesiastical law of England not being in force here, (2) none of these offences have heretofore been punishable in any part of Canada, except the provinces of Nova Scotia, New Brunswick and Prince Edward Island, under special local enactments passed by the legislatures of those provinces for the punishment of incest, (3) and also, as regards New Brunswick, for the punishment of adultery. (4) See article 188, post, as to conspicacy to induce a woman te commit adultery or fornication. The word 46 brother" used in the statutes of Vermont, punishing incest, has been held to include a brother of the half-blood. (5) It has been held that it is not necessary to prove more than a single sexual act (6). But although proof of one commission of the offence is sufficient for (1) 2 Steph. His. Cr. L. 396. (2) In re Lord Bishop of Natal, 3 Moo. C. C. N. S. 115; Burbridge Dig. Cr. L. 162. (3) R. S. N. S. (3rd S.), c. 160, s. 2; R. S. N. B c. 145, s. 2; 24 Vic. (P. E. I.), c. 27, s. 3. (4) R. S. N. B. c. 145, s. 3; Burbridge, 162. (5) State v. Wyman, (Vermont Supreme Ct.), 8 Atl. Rep. 900; 9 Cr. L. Mag. 574. (6) State v. Brown, 23 N. E. Rep. (Ohio), 747. conviction proof is admissible of the various times and circumstances of the repetition of the offence. (1) Either party to the offence, or both of them may be indicted. In a Nebraska case a party was indicted alone for the crime of incest, under the provisions of section 203 of the Criminal Code of that State. Held that he was properly indicted, and that it was not necessary that the indictment should be against both parties to the incestuous intercourse. (2) The relationship must not only exist but the accused parties must have been aware of it; and therefore ignorance on the part of either party of the consanguinity, would relieve such party from culpability. 177. Indecent acts.-Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a fine of fifty dollars or to six months' imprisonment with without hard labour, or to both fine and imprisonment, who wilfully (a.) in the presence of one or more persons does any indecent act in any place to which the public have or are permitted to have access; or (b) does any indecent act in any place intending thereby to insult. or offend any person. 53 V., c 37, s. 6. Sec. 6, of 53 Vic., c. 37, (which remains unrepealed), expressly mentions indecent exposure of the person as a punishable offence. It reads as follows: "Every one who wilfully commits any indecent exposure of the person or act, of gross indecency in any public place, in the presence of one or more persons, is guilty of a misdemeanor, and liable, on summary conviction before two justices of the peace, to a fine of fifty dollars or to six months' imprisonment with or without hard labor, or to both fine and imprisonment." It has been held in England that the offence of indecent exposure of the person may be indictable if committed before several persons, even if the place be not public (3), and that men who bathe,-without any screen or covering,-so near to a public footpath that exposure of their persons must necessarily occur, are guilty of an indictable nuisance (4). Nor is it any defence that there has been so long as living memory extends, an usage so to bathe at the place, and that there has been no exposure beyond what is necessarily incidental to such bathing. (5) There are some American cases indicating that neither the place need be public nor the exposure made to more persons than one. Thus in Vermont, where the law makes it punishable, for any man or woman married or unmarried to be guilty of open and gross lewdness, it was held that an indecent exposure by a man of his person to a woman whom he persisted in soliciting to acts of sexual intercourse, in spite of her denial and remonstrances, came within the inhibition (6). In a case in New-York six women in a room in a bawdy-house exposed their persons for hire to five men, the doors, windows and shutters being closed, and it was held that thereby they committed this offence; the place being deemed public. (7) The act of indecency must be wilful; and therefore one, in a place however public, having by careful looking satisfied himself that no person was in a (1) People v. Cease, 45 N. W. Rep. (Mich.) 585; Mathis v. Commonwealth, (Ky.), 13 S. W. Rep. 360; 12 Cr. L. Mag. 883. (2) Yeeman v. State, (Nebraska Supreme Ct.), 31 N. W. Rep. 669; 9 Cr. L. Mag. 411. (3) R. v. Wellard, 14 Q. B. D. 63 ; L. J. (M. C.) 14. Ed. 1061. 4) R. v. Reid, 12 Cox, 1; per Cockburn C. J.; Arch. Cr. Pl. and Ev. 21 (5) Id. See also R. v. Crunden, 2 Camp. 89. (6) S. v. Millard, 18 Vt. 574, 46 Am. D. 170. (7) P. v. Bixby, 4 Hun. 636; 1 Bish. New Cr. L. Com. s. 1129. |