summary conviction, to a penalty not exceeding twenty dollars and costs, and, in default of payment, to imprisonment for a term not exceeding one month, 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 behavior, 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.

against disturbers of religious worship being in force in Ontario. Draft Code, s. 143. A person may be convicted under 23 & 24 Vict. c. 32, s. 2, of violent behavior in a church, although such behavior is an assertion of a bona fide claim of right; Asher v. Calcraft, L. R. 8 Q. B. D. c. 607.

In the draft of the Revised Statutes of Canada, chapter 150, respecting offences against religion, was included a provision, founded on the statutes hereinafter referred to, against the desecration of the Lord's Day by shooting, gaming, sporting, frequenting tippling houses, or by servile labor (works of necessity and mercy excepted), but it was struck out by the Joint Committee of the two Houses of Parliament to which the draft was referred. Apart from the question as to how far 29 Car. 2, c. 7, may be in force in any Province there was, in each Province before it became a part of Canada, legislation on the subject. See C. S. U. C. c. 104; C. S. L. C. c. 23; R. S. N. B. c. 144, s. 2; R. S. N. S. 3rd Ser. c. 159, s. 2; 20 Geo. 3 (P. E. I.), 3rd Sess. c. 3; 24 Vict. (P. E. I.) c. 7, s. 10; 31 Vict. (P. E. I.) c. 14; R. S. B. C. (1871) No. 46. The legislature of Ontario has re-enacted C. S. U. C. c. 101, in the view, probably, that its provisions are of the character of police regulations affecting public morals. The English statutes on the subject will be found in 4 Steph. Comm. (9th ed. pp. 240-242. See Hespeler v. Shaw, 16 U. C. Q. B. 104, as to hauling hay. As to who are travellers within the exception contained in C. S. U. C. c. 104, s. 1, see R. v. Tinning, 11 U. C. Q. B. 636 and R. v Daggett, 1 0. R. 537. A druggist who sells lozenges on Sunday is assumed to sell them as a medicine; R. v. Howarth, 33 U. C. Q. B. 537. A person in the public service of Her Majesty is not within R. S. O. c. 189 (C. S. U. C. c. 104) in respect of work done by him as such servant on Sunday; R. v. Berriman 4 0. R. 282. See Art. 242 as to opening places of public entertainment and amusement on the Lord's Day.

R. S. N. S. 3rd Ser. c. 159 contains a provision against loosing or injuring horses in the vicinity of meetings convened for religious or moral purposes (s. 4).

3 [EVERY one commits the felony called sodomy, and is liable] to imprisonment for life [who

(a.) carnally knows any animal; or,

(b.) being a male, carnally knows any man or any woman (per anum).

Any person above the age of fourteen years who permits himself or herself to be so carnally known as aforesaid is a principal in the first degree in the said felony.]

5

4 ARTICLE 214.

ATTEMPT TO COMMIT SODOMY.

Every one who attempts to commit sodomy is guilty of a misdemeanor, and is liable to ten years' imprison

ment.

7

6 ARTICLE 215.

INCEST.

Every one who in Nova Scotia, New Brunswick or

1 [As to rape and other offences of the same kind, see Chap. XXVIII. post, p. 248.]

2 S. D. Art. 168.

3 R. S. C. c. 157, s. 1: [24 & 25 Vict. c. 100, s. 61; see cases in 1 Russ. Cr. (5th ed) 879-82. See 2 Hist. Cr. Law, 429-30. As to carnal knowledge see Article 322. Draft Code, 8.144.]

1 S. D. Art. 169.

R. S. C. c. 157, s. 2; 24 & 25 Vict. c. 100, s. 62. Draft Code, s. 145. As to assaults with intent to commit sodomy and indecent assaults on male persons see Art. 312.

S. D. Art. 170.

R. S. N. S. (3rd S.) c. 160, s. 2; R. S. N. B. c. 145, s. 2; 24 Vict. (P.E.I.) c. 27,s. 3. The following is article 170 of Stephens' Digest, and the note thereto.

M

Prince Edward Island commits incest is guilty of a misdemeanor and liable in Nova Scotia to two years' imprisonment, in New Brunswick to fourteen, and in Prince Edward Island to twenty-one years' imprisonment.

2

1 ARTICLE 216.

ADULTERY.

Every one who, in New Brunswick, commits adultery is guilty of a misdemeanor and liable to a fine of four hundred dollars or to two years' imprisonment.

4

3 ARTICLE 217.

PUBLIC INDECENCIES.

[Every one commits a misdemeanor who does any grossly indecent act in any open and public place in the

66

ARTICLE 170.

ECCLESIASTICAL CENSURES FOR IMMORALITY.

"Every person who commits incest, adultery, fornication, or any other deadly sin (not 'punishable at common law), is liable upon conviction thereof in an Ecclesiastical "Court to be directed to do penance, and to be excommunicated, and to be imprisoned "for such term not exceeding six months as the Court pronouncing the sentence of ex"communication may direct."

46

46

"13 Edw. 1, stat. 4 c. 1; 53 Geo. 3, c. 127, ss. 1-3; and see Phillimore's Eccl. Law, 1081, "1442; also Phillimore v. Machon, 1 P. D. 481; Co. Litt. 96 b. Incest, though not men"tioned in the statute "Circumspecté agatis," is the only offence which in these days is ever prosecuted under the law here stated. Such a prosecution occurred within the last few years in the Bishop of Chichester's Court. See 2 Hist. Cr. Law, 396-420," The offences are not, however, punishable in any part of Canada except as indicated in the text, there being no competent Ecclesiastical Court, and the ecclesiastical law of England not being in force here. In re Lord Bishop of Natal, 3 Moo. P. C. C. N. S. 115. 1 S. D. Art. 170.

2 R. S. N. B. c. 145, s. 3. A married man may be convicted of adultery though the offence is committed with an unmarried woman; R. v. Egre, 1 P. & B. 189. On an indictment against A for adultery with B, a woman married in a foreign state, A cannot be convicted unless it be proved that B was lawfully married according to the law of the place where the marriage was solemnized; R. v. Ellis, 22 N. B. R. 440.

3 S. D. Art. 171.

4 [1 Hawk. P. C. 358. The acts referred to are principally acts of open indecency, but an act scandalously profligate, though not in this sense openly indecent, might in some cases be a misdemeanor, as, e.g., selling a wife. See per Lord Mansfield in R. v. Delaval, 3 Burr. 1438.] R. v. Levasseur, 9 L. N. 386. See Art. 250 (e). Draft Code, s. 146.

[presence of more persons than 'one; but it is uncertain whether such conduct in a public place amounts to a misdemeanor if it is done when no one is present, or in the presence of one person only.

2 A place is public within the meaning of this Article if it is so situated that what passes there can be seen by any considerable number of persons if they happen to look.

Illustrations.

The following are instances of public places :

3 The inside of an omnibus;

4 The roof of a house visible from the back windows of several houses;

5 The inside of a urinal open to the public, and by the side of a footpath in Hyde Park;

"The inside of a booth on Epsom racecourse, which the public were invited to enter;

A place out of sight of the public footway where people had no legal right to go, but did habitually go without interference.

8 ARTICLE 218.

OBSCENE PUBLICATIONS.

Every one commits a misdemeanor who, without justification,

(a.) publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition; or any publication recommending

1 [Elliot's Case, L. & C. 103.] In R. v. Levasseur, Ramsay, J. expressed the opinion that an exposure of a grossly indecent character to one woman or child would be a misde

meanor.

2 Webb's Case, 1 Den. 338: Holmes's Case, Dears. 207; R. v. Orchard, 3 Cox, C. C. 248; R. v. Rouverard, stated by Parke, B., in R. v. Webb, 1 Den. 344.

3 R. v. Holmes, Dears. 207.

4 Thallman's Case, L. & C. 326.

9

R. v. Harris, L. R. 1 C. C. R. 282.

R. v. Saunders, L. R. 1 Q. B. D. 18.

R. v. Wellard, L. R. 14 Q. B. D. 63.]

S. D. Art. 172. See Appendix Note V.

[Appendix Note V; Strange, 790; and see 20 & 21 Vict. c. 83, s. 1; 14 & 15 Vict. c. 100, s. 29; Starkie (by Folkard), 603-12. Draft Code, s. 147.

9 These words are added in reference to the case of R. v. Bradlaugh, tried before Cockburn, C. J., 18 June, 1877. I have not seen any report of the trial itself. Proceedings in]

[sexual immorality, even if the recommendation is made in good faith and for what the publisher considers to be the public good.

(b.) publicly exhibits any disgusting object.

(SUBMITTED.)—A person is justified in exhibiting disgusting objects, or publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their exhibition or publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to exceed what the public good requires in regard to the particular matter published.

1

Illustrations.

(1.) A exhibits for money, to all comers, an unnatural and monstrous birth. A commits a misdemeanor.

B exhibits a similar object to students of medicine only. B does not commit a misdemeanor.

(2.) 2 A, a bookseller, publishes the work of a casuist, which contains amongst other things obscene matter. The work is published in Latin, and appears from the circumstances of its publication to be intended for bona fide students of casuistry only. A has not committed a misdemeanor. B extracts the obscene matter from the work so published, translates it into English, and sells it as a pamphlet about the streets for the purpose of throwing odium upon casuists. B has committed a misdemeanor.]

[error on the ground that the indictment was defective were taken in 1878 and are reported in L. R. 3 Q. B. D. 607. The jury found that the work prosecuted called the "Fruits of Philosophy," was published in good faith for the public good, and that it recommended immoral practices. It appeared in evidence that it was not obscene in the sense of being calculated or intended to excite passion.

[Harring v. Walrond, 1 Russ. Cr. 436.

2 The second paragraph of this illustration is based upon R. v. Hicklin, L. R. 3 Q. B. 360; and see Steele v. Brannan, L. R. 7 C. P. 261. The first part is merely my suggestion as to what ought to be held to be the law if the question should arise, but the point cannot be called clear. Keating, J., referred in passing to the question in Steele v. Brannan, L. R. 7 C. P. 269, 270, but expressed no opinion upon it. I confine this article to obscenity because I have found no authority for the proposition that the publication of a work immoral in the wider sense of the word is an offence. A man might with perfect decency of expression, and in complete good faith, maintain doctrines as to marriage, the relation]