Publishing defamatory libel.]-See sec. 334. Knowingly publishing a false defamatory libel.]—This is a common law offence. R. v. Munslow, [1895] 1 Q.B. 758. An indictment does not lie for mere defamatory words spoken and not reduced to writing, even if the words be such that an action for damages for slander might be sustained without proof of special damages. R. v. Langley (1703), 6 Mod. 125. A defamatory libel of his wife by the husband has been held not to be indictable because such a libel is not actionable between the parties. R. v. Lord Mayor of London (1886), 16 Q.B.D. 772. Indictment.]-An indictment charging the publication of a defamatory libel, which does not state that the same was likely to injure the reputation of the libelled person by exposing him to hatred, contempt or ridicule, or was designed to insult him, is bad by reason of the omission of an essential ingredient of the offence. R. v. Cameron (1898), 2 Can. Cr. Cas. 173. Such an indictment cannot be amended and must be set aside and quashed as the defect is a matter of substance. Ibid. The law implies malice from the publication but no allegation of malice need be made in the indictment. R. v. Munslow, [1895] 1 Q.B. 758, 762. Form of indictment.]-County of to wit:-The jurors for our Lord the King upon their oath present, that A. B. on the day of in the year of our Lord 190 unlawfully did write and publish and cause and procure to be written and published a false, scandalous, malicious and defamatory libel in the form of a letter directed to one J. N. [or, if the publication were in any other manner, according to the tenor and effect following], containing divers false, scandalous, malicious and defamatory matters and things of and concerning the said J. N., and of and concerning [here insert such of the subjects of the libel as it may be necessary to refer to by innuendoes in setting out the libel], according to the tenor and effect following, that is to say: [here set out the libel together with such innuendoes as may be necessary to render it intelligible]; he the said A. B. then well-knowing the said defamatory libel to be false against the form of the statute in that case made and provided [or, of the Criminal Code, sec. 333], to the great damage, scandal and disgrace of the said J. N., to the evil example of all others in the like case offending, and against the peace of our Lord the King, his crown and dignity. Pleas.]-At common law the accused could plead only the general issue, "not guilty." Archbold Cr. Pl. (1900), 1069; but by sec. 331 of the Code, taken from R.S.C. 1886, ch. 163, sec. 4, it is now a defence that the publishing of the defamatory matter, in the manner in which it was published, was for the public benefit at the time when it was published and that the matter itself was true. Pleas in abatement are now abolished. Section 899. Any objection to the constitution of the Grand Jury may be taken by motion to the court, and the indictment shall be quashed if the court is of opinion both that such objection is well founded and that the accused has suffered or may suffer prejudice thereby, and not otherwise. Section 899. Pleas of justification and not guilty.]-See secs. 910-911 and notes. Demurrer.]-See sec. 898. Verdict in libel case.]-See sec. 956. Costs in libel prosecutions.]-See secs. 1045 and 1047. Punishment of defamatory libel. Nolle prosequi.]-See sec. 962. Change of venue.]-In order to obtain a change of venue in a prosecution for defamatory libel such facts must be shewn as will satisfy the court that a fair trial cannot be had at the present venue, and it is not sufficient that the applicant's solicitor swears to a belief that a fair trial is impossible there because of the prosecutor's interest in political affairs. The fact that two abortive trials of the cause have already taken place at both of which the jury disagreed, is not of itself a ground for ordering a change of venue. R. v. Nicol (1900), 4 Can. Cr. Cas. 1 (B.C.). 334. Every one is guilty of an indictable offence and liable to one year's imprisonment, or to a fine not exceeding two hundred dollars, or to both, who publishes any defamatory libel. 55-56 V., c. 29, s. 302. A.D. on the Statutory form.]-The following example of stating an offence under this section is contained in Code Form 64:-"A. published a defamatory libel on B. in a certain newspaper, called the day of which libel contained in an article headed or commencing (describe with so much detail as is sufficient to give the accused reasonable information as to the part of the publication to be relied on against him), and which libel was written in the sense of imputing that the said B. was (as the case may be)." Indictment, pleas, etc.]-See note to sec. 333. That section relates to the greater offence of publishing a libel "knowing the same to be false." If the proceeding is under sec. 334 only, the charge of such knowledge by the accused will be omitted from the form of indictment. Evidence under commission.]—See sec. 997. A commission to take the evidence of witnesses abroad in a libel prosecution is properly ordered at the trial where the evidence relates wholly to a plea of justification just entered of record. R. v. Nicol (1898), 5 Can. Cr. Cas. 31 (B.C.). An order for a commission to take such evidence should not be made before plea. Ibid. Verdict in libel case.]-See sec. 956. Suspension of sentence.]—Where a convicted person, instead of being sentenced is discharged from custody upon entering into a recognizance with sureties to appear and receive judgment when called up, it is only on motion of the Crown that the recognizance can be estreated, or judgment moved against him. In Ontario, a private prosecutor in a prosecution for defamatory libel has no locus standi to make the application. R. v. Young (1901), 4 Can. Cr. Cas. 580 (Ont.). Where fourteen years had elapsed since the conviction, and the only breaches of recognizance charged were the publication of several newspaper articles alleged to be defamatory of the prosecutor, the latter should be left to his remedy by action or indictment in respect of any fresh libels, even if he had a locus standi to enforce the recognizance. Ibid. Criminal information for libel.]—A party seeking a criminal information against another must himself be free from blame, or he will not be granted leave to take that method of procedure, and will be left to his recourse by indictment or action. R. v. Edward Whelan (1863), 1 P.E.I. Rep. 223, per Peters, J.; R. v. Lawson, 1 Q.B. 486; R. v. Biggs, 2 Man. A party who wants a criminal information must place himself entirely in the hands of the court. If it appear that the party has put himself into communication with the publisher of the libel, for the purpose of retorting, or with the view of obtaining redress, or has in any way himself attempted to procure redress, or take the law into his hands, the remedy by criminal information will be refused. R. v. Wilkinson (1877), 41 Ú.C.Q.B. 1, 25 (citing Ex parte Beauclerk, 7 Jur. 373); R. v. Heustis, 1 James 101. A person alive to the vindication of his character when assailed and entitled to the remedy of criminal information must apply with reasonable promptitude. The general rule is stated by Lord Mansfield in R. v. Robinson (1765), 1 W.BI. 542, where he said: "There is no precise number of weeks, months or years; but, if delayed, the delay must be reasonably accounted for. The party complaining must come to the court either during the term next after the cause of complaint arose, or at so early a period in the second term thereafter as to enable the accused, unless prevented by the accumulation of business in the court, or other cause within the second term; and this, regardless of the fact whether an assize intervened or not. R. v. Kelly (1877), 28 U.C.C.P. 35; 41 U.C.Q.B. (1877), 1, 24. It is of the highest importance that the relator should in all cases lay before the court all the circumstances fully and candidly, in order that the court may deal with the matter. R. v. Wilkinson (1877), 41 U.C.Q.B. 1, 25 (citing R. v. Aunger, 28 L.T.N.S. 634, s.c. 12 Cox 407). The granting of a criminal information is discretionary with the court under all circumstances; the application is not to be entertained on light or trivial grounds. In dealing with such an application, the court has always exercised a considerable extent of discretion in seeing whether the rule should be granted, and whether the circumstances are such as to justify the court in granting the rule for a criminal information. R. v. Wilkinson (1877), 41 U.C.Q.B. 1, 29. There are two things principally to be considered in dealing with such an application; 1. To see whether the person who applies to conduct the prosecution, the relator or the informer, has been himself free from blame, even though it would not justify the defendant in making the accusation; 2. To see whether the offence is of such magnitude that it would be proper for the court to interfere and grant the criminal information. Both these things have to be considered, and the court would not make its process of any value unless they considered them and exercised a good deal of discretion, not merely in saying whether there is legal evidence of the offence having been committed, but also exercising their discretion as men of the world, in judging whether there is reason for a criminal information or not." R. v. Plimsoll (1873), noted in 12 C.L.J. 227; R. v. Wilkinson (1877), 41 U.C.Q.B. 1, 29. "The court always considers an application for a criminal information as a summary extraordinary remedy depending entirely on their discretion, and therefore not only must the evidence itself be of a serious nature, but the prosecutor must apply promptly or must satisfactorily account for any apparent delay. He must also come into court with clean hands, and be free from blame with reference to the transaction complained of; he must prove his entire innocence of everything imputed to him, and must produce to the court such legal evidence of the offence having been committed by the defendant as would warrant a grand jury in finding a true bill against the defendants." Per Quain, J., in R. v. Plimsoll (1873), noted, 12 Can. Law Jour. p. 228, cited by Hagarty, C.J., in R. v. Kelly (1877), 28 U.C.C.P. 35. The court confines the granting of criminal informations for libel to the case of persons occupying official or judicial positions, and filling some offices which gives the public an interest in the speedy vindication of their character, or to the case of a charge of a very grave or atrocious nature; leave was therefore refused to the manager of a large railway company to file a criminal information for libel, on the ground that he did not come within the description of persons referred to. Per Armour, J., "I think the practice of granting leave to file criminal informations in this country, having regard to the social conditions of its inhabitants and the liberties which they enjoy, is, to say the least of it, of very doubtful expediency, and should, in my opinion, be discontinued and, if necessary, abolished by legislative enactment. The very rule adopted in England, that it will only be granted to what I may call 'a superior person' is the strongest reason, to my mind, why in this country it should never be granted at all. Whatever may be deemed desirable in England, I do not think it desirable that in this country there should exist a remedy for the superior person which is denied to the inferior." R. v. Wilson (1878), 43 U.C.Q.B. 583. Per Cameron, J., "There is no real necessity, so far as I am aware, for any one seeking this remedy. Any person libelled has a right to lay an information before a magistrate charging any one who may have libelled him with the offence, and may then by his oath deny the truth of the slanderous charges or imputations." Ibid. Hagarty, Č.J., added that it was not to be understood that the court laid down any absolute rule as to future applications for criminal informations, or that they meant to fetter their discretion in dealing therewith. Ib. reporter's note. R. v. Wilson (1878), 43 U.C.Q.B. 583. Where the libel charges the person libelled with having, by a previous writing, provoked it, the latter by his affidavit on which he moves for a criminal information is bound to answer such charge, otherwise the affidavit will be held insufficient. R. v. Edward Whelan (1862), 1 P.E.I. Rep. 220, per Peters, J. In Trinity term, 1876, an application was made for a criminal information for libel in newspapers published on 23rd and 30th March and 25th May. The delay in not applying to the court during Easter Term, or until 30th August, was not satisfactorily accounted for, and the court refused the application, but, in view of the virulent language of the article, without costs. R. v. Kelly (1877), 28 U.C.C.P. 35. In answer to an application for a criminal information for libel the defendants filed an affidavit stating that they had no personal knowledge of the matter contained in the alleged libels, but received the information from persons whom they trusted to be reliable and trustworthy; that the Globe newspaper was controlled by the applicant, who was an active politician, and had published a number of articles violently attacking one S., who was a candidate for a public office, and the libels in question were published with a view of counteracting the effect of these articles, and believing them to be true, and without malice. This was held to be no ground for the court refusing to the applicant leave to file a criminal information for the reiterated publication in a newspaper of matter not pretended either to be not libellous, or to be true in fact. R. v. Thompson (1874), 24 U.C.C.P. 252. Quære whether a criminal information is the course to be adopted for wilful and corrupt misconduct of a judge holding an inferior court of record. R. v. Ford (1853), 3 U.C.C.P. 209, 218. Where there is foundation for a libel, though it falls far short of justification, an information will not be granted. The Queen v. Biggs, 2 Man. R. 18. PART VII. OFFENCES AGAINST RIGHTS OF PROPERTY AND RIGHTS ARISING WITH TRADE. Interpretation. Definitions. 335. In this Part, unless the context otherwise requires, (b) 'Admiralty' means the Lord High Admiral of the United 'Admiralty.' Kingdom, or the Commissioners for executing the office of Lord High Admiral; (c) 'break' means to break any part, internal or external, ‘Break.' of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight), any door, window, shutter, cellar-flap or other thing intended to cover openings to a building, or to give passage from one part of it to another; d) 'covering' includes any stopper, cask, bottle, vessel, 'Covering.' box, cover, capsule, case, frame or wrapper; and 'label' 'Label.’ includes any band or ticket; (e) 'dwelling-house' means a permanent building, the whole 'Dwellingor any part of which is kept by the owner or occupier for house.' the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied; (f) 'document' means any paper, parchment or other 'Document.' material used for writing or printing, marked with matter capable of being read, but does not include trade marks on articles of commerce, or inscriptions on stone or metal or other like material; (g) 'every one,' 'vendor,' 'purchaser,' 'merchant,' 'agent' 'Every one,' or 'person,' for the purposes of the sections relating to etc. trading stamps, includes any partnership, or company, or body corporate; |