Not triable at quarter sessions, section 540. No prosecution without consent of Attorney-General, section 543. Section 614 is made to apply, though through error. 'Having in possession " defined section 3.

BREACH OF OFFICIAL TRUST.

78. Every one who, by means of his holding or having held an office under Her Majesty, has lawfully or unlawfully, either obtained possession of or control over any document, sketch, plan or model, or acquired any information, and at any time corruptly, or contrary to his official duty, communicates or attempts to communicate such document, sketch, plan, model or information to any person to whom the same ought not, in the interests of the state, or otherwise in the public interest, to be communicated at that time, is guilty of an indictable offence and liable-

(a) If the communication was made, or attempted to be made, to a foreign state, to imprisonment for life; and

(b) In any other case to imprisonment for one year, or to a fine not exceeding one hundred dollars, or to both imprisonment and fine.

2. This section shall apply to a person holding a contract with Her Majesty, or with any department of the Government of the United Kingdom, or of the Government of Canada, or of any province, or with the holder of any office under Her Majesty as such holder, where such contract involves an obligation of secrecy, and to any person employed by any person or body of persons holding such a contract who is under a like obligation of secrecy, as if the person holding the contract, and the person so employed, were respectively holders of an office under Her Majesty; 53 V. c. 10, s. 2.

See annotation under preceding section.

The Imperial Foreign Enlistment Act, 33-34 V. c. 90, applies to Canada. See R. v. Sandoval, Warb. Lead. Cas. 43.

PART V.

UNLAWFUL ASSEMBLIES, RIOTS, BREACHES OF THE PEACE. 79. An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when assembled as to cause persons in the neighbourhood of such assembly to fear, on reasonable grounds, that the persons so assembled will disturb the peace tumultuously, or will by such assembly needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously.

2. Persons lawfully assembled may become an unlawful asssembly if they conduct themselves with a common purpose in such a manner as would have made their assembling unlawful if they had assembled in that manner for that purpose.

3. An assembly of three or more persons for the purpose of protecting the house of any one in their number against persons threatening to break and enter such house in order to commit any indictable offence therein is not unlawful.

R. v. Vincent, 9 C. & P. 91; O'Kelly v. Harvey, 15 Cox, 435; Beatty v. Gillbanks, 15 Cox, 138; Warb. Lead. Cas. 49; Back v. Holmes, 16 Cox, 263; R. v. Clarkson, 17 Cox, 483; R. v. Cunningham, 16 Cox, 420.

"The definition of an unlawful assembly depends entirely on the common law. The earliest definition of an unlawful assembly is in the Year Book, 21 H. VII. 39. It would seem from it that the law was first adopted at a time when it was the practice for the gentry, who were on bad terms with each other, to go to market at the head of bands of armed retainers. It is obvious that no civilized government could permit this practice, the consequence of which was at the time that the assembled bands would probably fight, and certainly make peaceable people fear that they would fight. It was whilst the state of society was such as to render this a prevailing mischief that the earlier cases were decided; and consequently the duty of not provoking a breach of the peace has sometimes been so strongly laid down as almost to make it seem as if it was unlawful to take means to resist those who came to commit crimes. We have endeavoured in section 84 to enunciate the principles of the common law, although in declaring that an assembly may be unlawful if it causes persons in the neighbourhood to fear that it will need. lessly, and without reasonable occasion, provoke others to disturb the peace tumultuously, we are declaring that which has not as yet been specifically decided in any particular case. The clause as to the defence of a man's house has been inserted because of a doubt expressed on the subject."-Imp. Comm. Rep.

Divers persons assembled in a room, entrance money being paid, to witness a fight between two persons. The combatants fought in a ring with gloves, each being attended by a second, who acted in the same way as the

second at prize fights. The combatants fought for about 40 minutes with great ferocity, and severely punished each other. The police interfered and arrested the defendants, who were among the spectators.

Upon the trial of an indictment against them for unlawfully assembling together for the purpose of a prize fight, the chairman directed the jury that, if it was a mere exhibition of skill in sparring, it was not illegal; but, if the parties met intending to fight till one gave in from exhaustion or injury received, it was a breach of the law and a prize fight, whether the combatants fought in gloves or not, and left it to the jury to say whether it was a prize fight or not.

Held, that the jury were properly directed: R. v. Orton, 14 Cox, 226; see R. v. McNaughten, 14 Cox, 576.

The appellants with a considerable number of other persons, forming a body called "Salvation Army," assembled together in the streets of a town for a lawful object, and with no intention of carrying out their object unlawfully, or by the use of physical force, but knowing that their assembly would be opposed and resisted by other persons, in such a way as would in all probability tend to the committing of a breach of the peace on the part of such opposing persons. A disturbance of the peace having been created by the forcible opposition of a number of persons to the assembly and procession through the streets of the appellants and the Salvation Army, who themselves used no force or violence, it was—

Held, by Field and Cave, JJ., (reversing the decision of the justices), that the appellants had not been guilty of unlawfully and tumultuously assembling, etc., and could not therefore be convicted of that offence, nor be bound over to keep the peace.

Held, also, that knowledge by persons peaceably assembling for a lawful object, that their assembly will be forcibly opposed by other persons, under circumstances likely to lead

to a breach of the peace on the part of such other persons, does not render such assembly unlawful: Beatty v. Gillbanks, 15 Cox, 138; see R. v. Clarkson, 17 Cox, 483.

A procession being attacked by rioters a person in it fired a pistol twice. He appeared to be acting alone and nobody was injured.

Held, that he could not be indicted for riot, and, on a case reserved, a conviction on such an indictment was quashed: R. v. Corcoran, 26 U. C. C. P. 134.

On the trial of an indictment for riot and unlawful assembly on the 15th Jan., evidence was given on the part of the prosecution of the conduct of the prisoners on the day previous, for the purpose of showing (as was alleged) that B., in whose office one act of riot was committed, had reason to be alarmed when the prisoners came to his office. The prisoner's counsel thereupon claimed the right to show that they had met on the 14th to attend a school meeting, and to give evidence of what took place at the school meeting, but the evidence was rejected. Held, per Allen, C.J., and Fisher and Duff, JJ., (Weldon and Wetmore, JJ., dis.), that the evidence was properly rejected because the conduct of the prisoners on the 14th, could not qualify or explain their conduct on the following day. It is no ground for quashing a conviction for unlawful assembly on one day that evidence of an unlawful assembly on another day has been improperly received, if the latter charge was abandoned by the prosecuting counsel at the close of the case, and there was ample evidence to sustain the conviction. If a man knowingly does acts which are unlawful, the presumption of law is that the mens rea exists; ignorance of the law will not excuse him: R. v. Mailloux, 3 Pugs. (N.B.), 493.

RIOT.

80. A riot is an unlawful assembly which has begun to disturb the peace tumultuously.

See R. v. Kelly, 6 U. C. C. P. 372; R. v. Cunningham, 16 Cox, 420, and remarks under preceding section.

Section 12 of chapter 147, R. S. C., provided specially for the punishment of a rout.

PUNISHMENT FOR UNLAWFUL ASSEMBLY.

81. Every member of an unlawful assembly is guilty of an indictable offence and liable to one year's imprisonment. R. S. C. c. 147, s. 11.

Fine and sureties, section 958. See post, under section 83, and ante, under section 79. The punishment was two years under the repealed section.

PUNISHMENT OF RIOT.

82. Every rioter is guilty of an indictable offence and liable to two years imprisonment with hard labour. R. S. C. c. 148, s. 13.

Fine and sureties, section 958. The punishment was four years under the repealed section.

RIOT ACT.

83. It is the duty of every sheriff, deputy-sheriff, mayor or other head officer, and justice of the peace, of any county, city or town, who has notice that there are within his jurisdiction persons to the number of twelve or more unlawfully, riotously and tumultuously assembled together to the disturbance of the public peace, to resort to the place where such unlawful, riotous and tumultuous assembly is, and among the rioters, or as near to them as he can safely come, with a loud voice to command, or cause to be commanded, silence, and after that openly and with loud voice to make, or cause to be made, a proclamation in these words or to the like effect:

:

"Our Sovereign Lady the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business, upon the pain of being guilty of an offence on conviction of which they may be sentenced to imprisonment for life.

"God Save the Queen."

2. All persons are guilty of an indictable offence and liable to imprisonment for life who

(a) With force and arms wilfully oppose, hinder or hurt any person who begins or is about to make the said proclamation, whereby such proclamation is not made; or

(b) Continue together to the number of twelve for thirty minutes after such proclamation has been made, or if they know that its making was hindered as aforesaid, within thirty minutes after such hindrance. R. S. C. c. 147, ss. 1 & 2.

The omission of "God Save the Queen" is fatal. R. v. Child, 4 C. & P. 442; see sections 40, 41, 42, ante, and Archbold, 955. Limitation, one year, section 551. R. v. Pinney, 3 B. & Ad. 947: R. v. Kennett, 5 C. & P. 282;