Mr. LAURIER.-What makes the objection stronger is that in the next section you make a gross act of indecency an indictable offence.

Sir JOHN THOMPSON.-You get the higher Judge for the indictable offence.

Mr. MILLS (Bothwell).-All these offences against morality have crept into the common law from the earlier ecclesiastical law, and they were rather sins than crimes, not being attacks upon property or life, or upon any other members of the community. The offences are wholly subjective, and altogether different in that respect from the other crimes embraced in the Statute-book; and it is a question whether crimes of this sort should be punished by long terms of imprisonment. I think that flogging, or something of that sort, and the discharge of the prisoner is preferable, and a far better deterrent than anything else.

Sir JOHN THOMPSON.-We only punish them as crimes where they are offensive to the people, or set a bad example As to section 178, relating to acts of gross indecency, I have no objection to reducing the term of imprisonment, considering that whipping accompanies it.

Mr. DAVIES (P. E. I.)-Why not retain the word "grossly " which is in the present law?

Section postponed.

On section 179.

Mr. DAVIES (P. E. I.)-We should take care not to err on the side of prudishness. The other day in London some one brought an action against an exhibitor for exhibiting an indecent picture. The picture was in reality a work of art, and it was only after the exhibitor brought artists to prove this, and after the public press had brought the engine of ridicule to bear upon the action, that the case was dismissed. Artists and others engaged in the study of human anatomy often have pictures in their studios which some people might think indecent.

Sir JOHN THOMPSON.-There is a great deal of force in what the hon. gentleman says, but it is difficult to be very definite in legislation of the vague character which legislation dealing with indecent offences must be. There have been many petitions laid on the table for legislation in this direction, and there can be no doubt it is needed to prevent indecent shows, and pictures, and photographs such as would not at all come within the category of works of art.

Mr. DAVIES (P. E. I.)—The language in the Bill, as originally drawn, is carefully framed and is all right. It must be a picture exposed to public view and tending to corrupt morals, but you have amended that by saying that any photographer who keeps a picture which others may choose to call an indecent picture is liable to pro

secution.

Sir JOHN THOMPSON.-There are cases which are well known of photographers' establishments where immoral pictures are kept to satisfy curiosity, and the knowledge of the existence of these led the committee to propose this addition. The law is aimed against gross indecency in matters of this kind, and it is impossible to narrow the definition.

Mr. DAVIES (P. E. I.)-You have interpolated the statement that if any man takes a photograph of any picture of this kind, he is liable to the penalty and his motives are irrelevant, leaving out the provision as to its tending to corrupt morals. A photographer necessarily takes copies of pictures which in the minds of the vulgar would be considered indecent, but he may have the highest motives in doing so; they may be required for art students and may not have been at all intended to corrupt morals.

Mr. MASSON.-In the committee statements were made as to what was aimed at in reference to the photographs. It was alleged that it was becoming a very common practice by many photographers to import obscene pictures, and sell photographs of those pictures; and the intention was to stop that practice.

Mr. MILLS (Bothwell).-It will stop a good deal more than that. Would it not cover the case of photographers who are called into a surgical school where operations are being performed and photographs are taken, for the use of students, to give them some idea of the character of a disease?

Sir JOHN THOMPSON.-I think sub-section 3 covers that.

Mr. DAVIES (P.E.I.)-I think it goes so far that no nude picture could be photographed, no matter how high a work of art it may be. These pictures are in private houses everywhere, and many a man would have to remove, from his library or his drawing room, pictures which are perfectly innocent.

Sir JOHN THOMPSON.-How is the offence to be punished of photographers who take obscene and indecent photographs of pictures which persons of ordinary artistic taste would consider grossly indecent but which these photographers do not publicly sell but which they show and sell privately to persons whom they bring to their studios.

On section 180.

Mr. LAURIER.-In sub-section (a) the Hon. Gentleman is mixing up disloyalty with immorality.

Sir JOHN THOMPSON.-That is in the Post Office Act, chap. 35.

Mr. LAURIER.-It may be quite proper to make the sending of seditious matter an offence, but the Hon. Gentleman will see that a provision of this sort ought not to be made in this chapter dealing with offences against morality.

Sir JOHN THOMPSON.-The object was to gather into this Act the penal enactments of the statute, but I have no objection to amend this section by striking out the words "seditious" and "disloyal."

On section 184.

Mr. LAURIER.-This section is very wide. It makes it an offence for the master or other officer to seduce a female passenger, but it applies also to common seamen. An officer cannot be too severely punished for such an offence, but a common seaman cannot exercise authority in the same sense.

Mr. DAVIES (P.E.I.)-The original section was supposed to be confined to ships bringing immigrants to this country, and to apply to a class of passengers more or less in a helpless condition, many of them not being able to speak English. These immigrants are very largely under the control of Officers of the ship, and I can well understand the motives which prompted those who drafted the Immigration Act to throw very stringent restrictions around the protection of female immigrants. I think, however, it is a mistake to incorporate that provision in a general Act, and to make it a crime on board an ordinary ship, when it is not a crime when the same people are on shore.

Sir JOHN THOMPSON.-I will allow the section to stand.

On section 187.

out.

Mr. DAVIES (P.E.I.)-I suggest that sub-section 2 be struck A girl at the age of sixteen is a mere child, and I do not think the brothel keeper ought to be given the chance of saying that she had reasonable cause to believe that the girl was over sixteen.

Sir JOHN THOMPSON.-I have no objection to striking out sub-section 2.

Section amended.

On section 189,

Mr. FLINT.-I do not think the punishment in this case is severe enough.

Sir JOHN THOMPSON.-Make it four years then.

Section amended.

On section 190.

Mr. DAVIES (P.E.I.)-This section is, I suppose, taken from the Indian Act?

Sir JOHN THOMPSON.-Yes.

Mr. DAVIES (P.E.I.)-So that if an Indian woman went into prostitution in one of the large cities, she would be liable under this section when a white woman would not. In the Indian Act it is intended only to apply to the Indian reservations.

Mr. MILLS (Bothwell).-As drawn, this section would apply to Indians who are enfranchised.

Sir JOHN THOMPSON.—I have no objection to say chised."

Section amended.

(( unenfran

On section 191.

Mr. DAVIES (P. E. I.)—A nuisance which only affects the comfort is not a criminal act; how far should you define a nuisance which you do not make a criminal offence?

Sir JOHN THOMPSON.-That is worthy of consideration.

Mr. DAVIES (P. E. I.)-This section defines a common nuisance to be an unlawful act or an omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public. Many acts, which are lawful, are none the less a common nuisance. For instance, a man may plant a saw mill or an electric plant with engines in the vicinity of my house, the noise of which renders it a nuisance, but which is perfectly legal in itself. It is not an illegal act, but it is a nuisance all the same.

Sir JOHN THOMPSON.-The object is to preserve for the criminal law that class of cases the remedy for which is by indictment; but which partake, in all other respects, of a civil proceeding, and to provide that it shall be within the purview of the criminal procedure for carrying out the abatement of the mischief done to the public right. There are cases which are to be punished criminally; there are those which can be met by an action between private individuals, and there are those where the offence is against the public and which require to be proceeded with by way of indictment.

Mr. DAVIES (P.E.I.)-I do not understand why the words property or comfort" are used in section 191, which is the defining clause, and not in section 192, which provides for the punishment of the offence.

Sir JOHN THOMPSON-That is to reach the class referred to in section 193 where the comfort of the public is affected, and which can only be reached through the criminal law procedure, and we do not want a man sent to prison for that.

Mr. MILLS (Bothwell).-It appears to me that the procedure should give way to the fact and that this, being a matter of civil right should be dropped out of the criminal law altogether, and should be left to the Provincial Legislatures to provide for. Under section 92 of the British North America Act, by which they can provide for the punishment of offences under a local statute, I think they can provide the system of procedure. The criminal procedure as well as the criminal law generally is, of course, under the control of this Parliament, but certain forms of offences,-provincial crimes as they are called in the case of Russell vs. the Queen in the judgment of the Judicial Committee,-may be dealt with by the Local Legis

latures, and surely they may provide the procedure in such cases. Once you admit that the subject-matter is not in itself criminal, then the subject drops out of the control of this Legislature and you can properly omit it from the criminal code altogether.

Sir JOHN THOMPSON.-Does the hon. gentleman think there is no difficulty in the Local Legislature taking what is now a common law offence and providing procedure to give redress in regard to it?

Mr. MILLS (Bothwell).-Take the case of something which interfered with the comfort of a particular family or individual and not the public at large. Anciently it was doubtless a criminal offence. Now you propose to leave that to be redressed by a civil remedy. It simply amounts to this, that it is no longer a crime. It is what the jurisprudence of the United States calls a police offence, and you can leave it to the proper police remedy. I would suggest to strike out the words "or comfort."

Mr. DAVIES (P.E.I.)-There is another state of facts which this clause affects. The construction of a wharf is in one sense an unlawful act in so far as it may interfere with navigation. Now, supposing under these two sections an individual were personally injured and he brought an indictment against the owner of the wharf, the owner would be in an awkward position. You are providing here for public injuries which affect the public generally, or a section of the public, which endanger the safety of their lives. far so good. But when you go on to provide for indicting a man who commits a technical nuisance which occasions injury to an individual are you not going a little further than necessary? Now, everybody knows how difficult it is to define whether a wharf is a nuisance or not. You have no right to build a wharf, it is only justified by the peculiar circumstances, by the greater benefit to be conferred on the public. The building of that wharf, although for the public benefit, and although it interferes with navigation in a very minor degree still it may occasion injury to an individual. It seems to me under that definition he would have a right to an action.

Sir JOHN THOMPSON.-Would he not at common law ?

Mr. DAVIES (P.E.I.)-I do not think so. I think if it could be shown that the wharf was necessary to carry on the commerce of the country, the individual could not abate it as a nuisance.

Sir JOHN THOMPSON.-It has been decided in the Supreme Court that he could abate it.

Mr. MASSON.-Would not the effect of striking out comfort" be to do away with the very example cited by the commissioners, say in the case of a highway? It is only the public comfort that is interfered with by the non-repair of a highway. What remedy would you propose for that?

Mr. LAURIER.-The municipal law would provide for that.

Mr. MASSON.-It does not at present.

Mr. LAURIER.-It does in my province.

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