Mr. MASSON.-If you take it out of the calendar of criminal offences entirely, then an individual especially aggrieved, instead of having to resort to proceeding by indictment, would have to take upon himself the responsibility of a personal action in which he would have to assume all the costs of such proceeding.

Mr. LAURIER.-A penal action.

Mr. MASSON.-That might be. It is only a question of remedies, and how to enforce it. I think you would strike a great blow at the public remedy if you took out the word "comfort."

M. DAVIES (P.E.I.)-Does a public indictment now lie against a corporation or person who injures the comfort of an individual, unless there is a pecuniary damage?

Mr. MASSON.-Not the comfort of an individual, but the comfort of the public.

Mr. MILLS. (Bothwell).-The question of comfort is a question of injury.

Mr. DAVIES (P.EI.)-I cannot maintain any action under this section. define a common nuisance to be so and so. you say quoad a certain character of this by indictment.

understand how you could Under the first section you Under the second section nuisance, you can proceed

Sir JOHN THOMPSON.-You can proceed by indictment, but it is not a criminal offence. I will let 191 and 193 stand. (1)

On section 194.

Mr. LAURIER.-This class of offences, selling for human food articles which the seller knows to be unfit for human food, is a matter of police regulation, and should be left to the provincial authorities. There are by-laws in force in all our cities providing punishment for these very offences.

Mr. CURRAN.-Certain parts of the country may not be suffi ciently advanced to have by-laws such as we have in Montreal, Quebec and elsewhere.

On section 200.

Mr. FRASER.-Why is there a distinction made between the three classes of houses? I think it would be just as much a violation of the law to prevent an entrance into the first.

Sir JOHN THOMPSON.-I will look into that.

On section 203.

Mr. DAVIES (P. E. I.)—It seems to me this is unnecessary legislation. People can take care of themselves just as well in a railway carriage as they can in a club or private house. If a man chooses to

114-116,

(1) See comments and authorities under Articles 191 and 192, at pp. ante.

play for a dollar or two in a railway car, and loses it, let him lose it and have done with it.

On section 204.

Sir JOHN THOMPSON. I suppose it is my duty to call the attention of the committee to the addition of sub-section 2, which proposes a relaxation in regard to betting on the race-course of an incorporated association while a race is going on.

FRIDAY, 3 June 1892.

(In the Committee.)

On section 247. (1)

Mr. CHARLTON.-Is it intended to make a person liable to imprisonment for life if he removes a fence along a railway line?

Sir JOHN THOMPSON.—If he does it with intent to injure or endanger the safety of any person travelling on the railway. The intent must be proved. These special penalties are provided in cases where detection is difficult and serious injury more likely to be inflicted. A brick thrown into the window of a railway carriage is much more likely to do serious harm than a brick thrown into the window of an ordinary carriage or at a person walking, and it is certainly much more difficult to detect the offender; and the speed with which a railway train travels, rendering detection difficult, is a temptation to mischievous persons to throw missiles and inflict perhaps serious injury.

Mr. DICKEY.-Would the Hon. Minister see any objection to striking out the words " to injure or " and leave the offence punishable by imprisonment for life only where there is intent to endanger the safety of people on the train? There is a great distinction between an act which will endanger the safety of the train iself and the passengers and the mere attack upon a person in a train. No doubt under the English decision in the case of Regina vs. Rooke reported in Foster and Findlayson, this would apply to a train standing still at a station. Thus, if after a heated political meeting or anything of that sort, a crowd follows a man, and when he is seated in the train, a stone is thrown at him, the person throwing it is liable to imprisonment for life, while if the party assaulted were standing in the station the person who threw the stone would only be liable for assault.

Sir JOHN THOMPSON.-I see much reason against making the amendment proposed. It would be entirely destructive of the usefulness of the section, as in every case it would be necessary to show the intention to derail the train, or knock a person off it, or in some other way endanger safety. Every enactment of criminal law provides a heavy punishment for that class of offence, and there is the

(1) See Art. 250, anle.

saving provision that one day's imprisonment shall answer the purpose of the section. No one can suppose that in the case suggested by my hon. friend the maximum would apply. I propose that we shall say, at line 32, "upon any engine, tender, carriage or truck, used and in motion upon any railway.”

On section 275.

Sir JOHN THOMPSON.-The object of sub-section 4 is to keep the enactment within our jurisdiction. In the early words of the article we speak of marriages in any part of the world. Of course, Canada being a colony, this Parli ment can only legislate for offences committed in Canada, and therefore in order to restrain the preceding words and restrict them to our own jurisdiction, we say :

"4. No person shalt 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."

In such case we make it an offence to leave Canada for the purpose of committing that offence in another part of the world, that being the full extent of our power.

Mr. FRASER.-Could a citizen of Canada visit a foreign country and go through such form of marriage and return here, and not come within the jurisdiction of Canada for the purposes of prose

cution?

Sir JOHN THOMPSON.-Yes.

Mr. FRASER.-Does the Minister say that Parliament would have no power in such a case?

Sir JOHN THOMPSON.-We are following, in that respect, the decision given with respect to the jurisdiction of the Australian Parliament, that although the words used extended beyond the territorial jurisdiction of the Parliament, the Parliament had no authority and its legislation must be confined to its jurisdiction and interpreted accordingly. (1) While it is morally the same offence to commit bigamy outside our jurisdiction, all we can do is to punish any person who leaves this country for the purpose of committing it.

c Mr. FRASER.-I have the idea in my mind that in England such cases have been dealt with. Would not an enactment of the English Parliament have effect here?

Sir JOHN THOMPSON.—Yes, but it has not legislated in that

manner.

Mr. FRASER.-Then, practically, there would be no redress?
Sir JOHN THOMPSON.-There would be no criminal liability.

On section 278.

Sir JOHN THOMPSON.-This section was inserted the first time three years ago, when an attempt was made to put down offences

(1) See McLeod v. Atty Gen. N. S. Wales, 14 L. N. 402-405, cit. at pp. 211

213, ante.

connected with Mormonism and plural marriages, and after considering the laws of every state in the United States which attempted to deal with that question, we found that was the best way we could express it. (1)

On section 285.

Mr. DAVIN. This section goes a great length in defining a defamatory libel. I am aware that there are decisions that would justify making "irony" or "insinuations" libellous, but I think great injustice might sometimes be done if we place in the statute this definition of libel. Suppose an ironical article, a skit we will say, is written in a newspaper, and an indictment is laid, and the Judge reads the law to the Jury and says, that is the law; then any Jury having this definition of libel placed before them would bring in a verdict against the accused, although from the point of view of practical life, the verdict would be an outrageous one," Grip,"which is a powerful and very useful element in our political and social life;is guilty of libel within this section every week of his life.

Mr. LAURIER.-I do not think he is. Grip is ironical but not insulting.

Sir JOHN THOMPSON.—I think there can be no doubt that this Article is an exact rendering of the present law, and I am sure that the hon. gentleman will realize that it will not be less subject to interpretation, and less subject to proper administration in practice, than the common law is now, notwithstanding that it is embodied in a statute. All these provisions of a statute which merely state the common law are interpreted as making no new law, but as mere statements of the existing law. I think that my hon. friend is mistaken in assuming that the definition makes irony libel. It merely embodies the principle that an ironical statement may be a libel, and so it may. But in order to be so, it must be ironical matter published without legal justification or excuse, and likely to injure the reputation of a person and expose him to hatred, contempt and ridicule. If the hon. gentleman will glance at the other clauses he will find how well the statutory provisions as well as the common law protect bona fide journalism. For example, there are the various sections about fair reports, and so on, and then we come down to fair discussion under s ctions 292, 293, 294, 295 and 296. I think all these sections supply what the common law provides.

Mr. LAURIER.-I do not dispute the statement made by the Minister of Justice that this definition may be a fair exposition of what the common law is, but if you take it from the common law and incorporate it in a statute it ceases to be the common law and becomes statutory law, and 18 deprived of the element of elasticity which is so useful in the common law. I have already impressed the objection on the Minister that many of these definitions had better be left to the common law. In this case if you include irony as the constituent part of libel, I fear that many a man might be perhaps

(1) See comments and authorities at p. 216, ante

subject to prosecution who had no intention of injuring his neighbour but of simply creating a little merriment at the expense of somebody. I believe it should be left to the Jury to say whether the defendant intended to wound the feelings or simply to create a little amusement.

Mr. CHAPLEAU.-Irony is not a libel in itself, but you may commit a very serious libel by writing in an ironical way.

Sir JOHN THOMPSON.-There may be an ironical suggestion that a man has stolen leg of a lamb. It may be irony, but if it is published with the intention of exposing him to hatred and insult it would be a libel. There is no design in the Act to so draw the mesh that it would catch our friends the journalists. Taking it altogether, I think that so far as journalism is concerned, the law of libel is practically a dead letter. These provisions are for the purpose of protecting reputations, not so much against the press, because the press has grown stronger than the law of libel, but for the purpose of protecting them against libels of other kinds.

On section 286.

Mr. DAVIN. Is not this clause intended to meet that form of defamation in which a libeller writes a letter to the person intended to be libelled? I should think that that ought to be made libellous.

Mr. MCCARTHY.-Showing it to anybody else would be libel. For instance, putting it on a post card so that others may see it would constitute publication, but putting it in a sealed envelope and sending it to a person is not publication.

Mr. LAURIER.-But showing the libel to the person himself is publication.

Mr. McCARTHY.-There must be some other person present.

Mr. WELDON.-The essence of the offence is that it is conducive to a breach of the peace, and it should be made libellous.

Mr. DICKEY.-I rather incline to the view of the hon. member for Albert (Mr. Weldon) that it should be made a libel, and I wish to draw the attention of the committee to the fact that it is a change in the common law, so that we may understand what we are doing. It has all the elements of, and should be made a libel.

On section 289.

Sir JOHN THOMPSON.—This is, to protect the right of petition. Mr. FRASER.—Suppose there was a gross libel on a member of Parliament or a Minister in the petition?

Sir JOHN THOMPSON-There must be good faith.

Mr. FRASER. Should any person be allowed to be a judge of good faith in publishing what is defamatory in a petition?

Sir JOHN THOMPSON.-That is sufficiently protected by the rules of all these bodies restricting the receiving of petitions within reasonable bounds. A petition will not be received if defamatory