Colour of right. Partial interest. Fraud. Penalty. Ill-treating animal. defendant that the act was done in the assertion of a right, is: Did the defendants do what they did in exercise of a supposed right? And if they did, but on the facts before them the jury are of opinion that the defendants did more damage than they could reasonably suppose to be necessary for the assertion or protection of the alleged right, than that the jury ought to find them guilty of malicious damage. In this case two wooden structures were erected on a piece of meadow land on the sea shore, over which the defendants claimed to have certain rights of user for recreation and for mending and drying nets, etc., and the defendants in the assertion of these rights pulled down the buildings and threw them into the sea. The court held that this was an excess of damage for which they might properly be convicted. On a prosecution for malicious damage to property, the accused cannot claim that they were acting under a fair and reasonable supposition that they had a right to do the act complained of, if it appears that the supposed right was one which, under the circumstances, could not exist in law although the accused had a bona fide belief that these acts were legal. White v. Feast, L.R. 7 Q.B. 353, 36 J.P. 36; Brooks v. Hamlyn (1899), 63 J.P. 215. Under this section the magistrate's jurisdiction in respect of a charge of wilful injury to property is not ousted unless the act was done under a fair and reasonable supposition of right, and the magistrate has jurisdiction to summarily try the charge notwithstanding the mere belief of the accused that he had a right to do the act complained of. R. v. Davy (1900), 4 Can. Cr. Cas. 28 (Ont. C.A.). 541. Nothing shall be an offence under any of the foregoing provisions of this Part unless it is done without legal justification or excuse, and without colour of right. 2. Where the offence consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being an offence, and if total, shall not prevent his act being an offence, if done with intent to defraud. 55-56 V., c. 29, s. 481. "Colour of right."]-The "colour of right" on the part of the defendant, which under this section removes the criminal character of an act of damage to property, means an honest belief in a state of facts, which if it actually existed, would constitute a legal justification or excuse. The King v. Johnson, 8 Can. Cr. Cas. 123, 7 O.L.R. 525. Arson where property owned by accused.]—See note to sec. 511. Cruelty to Animals. 542. Every one is guilty of an offence and liable, on summary conviction before two justices, to a penalty not exceeding fifty dollars, or to three months' imprisonment with or without hard labour, or to both, who, (a) wantonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird, or any wild animal or bird in captivity; or, (b) while driving any cattle or other animal is, by negli- Injures by gence or ill-usage in the driving thereof, the means where- ill-usage. by any mischief, damage or injury is done by any such cattle or other animal; or, (c) in any manner encourages, aids or assists at the fight- Fighting of ing or baiting of any bull, bear, badger, dog, cock, or other animal. kind of animal, whether of domestic or wild nature. 55-56 V., c. 29, s. 512; 58-59 V., c. 40, s. 1. Unnecessarily beats, etc.]-"Unnecessarily" here means "without good reason." Ford v. Riley, 23 Q.B.D. 203; Murphy v. Manning, 2 Ex. D. 307; R. v. McDonagh, 28 L.R.Ir. 204. Cruelty.]-The use of an overdraw check rein on a horse is ordinarily not an offence under this section although it causes discomfort to the animal. Society v. Lowry (1894), 17 Montreal Legal News 118. The cutting of the combs of cocks to fit them for fighting or winning prizes at exhibitions has been held to be cruelty. Murphy v. Manning, L.R. 2 Ex. D. 307; but as to dishorning cattle the better opinion appears to be that it is not an offence; Callaghan v. Society, 11 Cox C.C. 101; although it was held to be in Ford v. Wiley, L.R. 23. Q.B.D. 203. 532. The spaying of sows is not cruelty. Lewis v. Fermor, L.R. 18 Q.B.D. In Benford v. Sims, [1898] 2 Q.B. 641, a person was accused under the Summary Jurisdiction Acts of cruelly ill-treating a horse by causing it to be worked while in an unfit state, and was held to be properly convicted, although the offence actually proved was that he had knowingly counselled the owner of the horse to cause the cruelty to be committed. (Code sec. 69). In King v. Cable, [1906] 1 K.B. 719 the defendant was convicted for that he did cruelly ill-treat, abuse and torture five cows by causing them to be over-stocked with milk. The defendant contended that the conviction was bad in that it was a conviction for five separate and distinct offences; but the Divisional Court affirmed the conviction on the ground that an act or omission affecting several animals may constitute a single offence. And see Code sec. 725. Section 542 expressly includes birds, but apart from the statutory definition it has been held that tame linnets are within the protection of a statute punishing cruelty to "domestic animals." Colam v. Pagett, 12 Q.B.D. 66. Cruelty to animals in transit.]-See secs. 544 and 545. Share of fine to informant.]-See sec. 1043. Information.]—An information and summons thereon both describing the offence as "unlawfully abusing a mare contrary to sec. 542 of the Criminal Code," sufficiently describe an offence under this section without specific mention of any of the words "wantonly," "cruelly." or "unnecessarily," which are used in that section. The King v. Cornell, 8 Can. Cr. Cas. 416. Appeal.]-Where an information is laid in the name of an individual describing himself as the agent of a society named, the society does not thereby become a party to the proceedings and it has no locus standi to appeal from the justices' order dismissing the charge; the notice of appeal must in such case be taken in the name of the agent personally, other Keeping cock-pit. Confiscation. Conveyance of cattle without proper rest and nourishment by railways, etc. Reckoning period. Saving. wise it may be quashed. Canadian Society, etc. v. Lauzon (1899), 4 Can. Cr. Cas. 354 (Que.). Limitation of time.]-The prosecution must take place within three months from the commission of the offence. Section 1140. 543. Every one is guilty of an offence and liable, on summary conviction before two justices, to a penalty not exceeding fifty dollars, or to three months' imprisonment, with or without hard labour, or to both, who builds, makes, maintains or keeps a cock-pit on premises belonging to or occupied by him, or allows a cock-pit to be built, made, maintained or kept on premises belonging to or occupied by him. 2. All cocks found in any such cock-pit, or on the premises wherein such cock-pit is, shall be confiscated and sold for the benefit of the municipality in which such cock-pit is situated. 55-56 V., c. 29, s. 513. Share of fine to informant.]-See sec. 1043. Limitation of time.]-The prosecution must be commenced within three months from the commission of the offence. Section 1140. 544. No railway company within Canada whose railway forms any part of a line of road over which cattle are conveyed from one province to another province, or from the United States to or through any province, or from any part of a province to another part of the same, and no owner or master of any vessel carrying or transporting cattle from one province to another province, or within any province, or from the United States to or through any province, shall confine the same in any car, or vessel of any description, for a longer period than twenty-eight hours without unlading the same for rest, water and feeding for a period of at least five consecutive hours, unless prevented from so unlading and furnishing water and food by storm or other unavoidable cause, or by necessary delay or detention in the crossing of trains. 2. In reckoning the period of confinement, the time during which the cattle have been confined without such rest, and without the furnishing of food and water, on any connecting railway or vessels from which they are received, whether in the United States or in Canada, shall be included. 3. The foregoing provisions as to cattle being unladen shall not apply when cattle are carried in any car or vessel in which they have proper space and opportunity for rest, and proper food and water. 4. Cattle so unloaded shall be properly fed and watered dur- Care ing such rest by the owner or person having the custody thereof' necessary. or, in case of his default in so doing, by the railway company, or owner or master of the vessel transporting the same, at the expense of the owner or person in custody thereof; and such' company, owner or master shall in such case have a lien upon Lien for such cattle for food, care and custody furnished and shall not food. be liable for any detention of such cattle. 5. Where cattle are unladen from cars for the purpose of Sanitary receiving food, water and rest, the railway company then having precautions. charge of the cars in which they have been transported shall; except during a period of frost, clear the floors of such cars, and litter the same properly with clean sawdust or sand before reloading them with live stock. 6. Every railway company, or owner or master of a vessel, Penalty. having cattle in transit, or the owner or person having the custody of such cattle, as aforesaid, who knowingly and wilfully fails to comply with the foregoing provisions of this section, is liable for every such failure on summary conviction to a penalty not exceeding one hundred dollars. 55-56 V., c. 29, s. 514. Limitation of time.]-By sec. 1140 it is provided that no prosecution for this offence, or action for penalties or forfeiture shall be commenced after the expiration of three months from the commission of the offence. 545. Any peace officer or constable may, at all times enter Search of any premises where he has reasonable grounds for supposing premises. that any car, truck or vehicle as to which any company or person has failed to comply with the provisions of the last preceding section, is to be found, or enter on board any vessel in respect whereof he has reasonable grounds for supposing that any company or person has, on any occasion, so failed. 2. Every one who refuses admission to such peace officer or Obstructing constable is guilty of an offence and liable, on summary conviction, to a penalty not exceeding twenty dollars and not less than five dollars, and costs, and in default of payment, to thirty days' imprisonment. 55-56 V., c. 29, s. 515. Time.]-A prosecution against a railway company for refusing to admit the peace officer to the car must be commenced within three months from the commission of the offence. Sec. 1140. Definitions. 'Current gold or silver coin.' 'Current copper coin.' 'Counterfeit.' 'Utter.' 'Counterfeit token of value.' PART IX. OFFENCES RELATING TO BANK NOTES, COIN AND COUNTERFEIT MONEY. Interpretation. 546. In this Part, unless the context otherwise requires,- (c) 'counterfeit' means false, not genuine; (d) 'gild' and 'silver' applied to coin, include casing with gold or silver respectively, and washing and colouring by any means whatsoever with any wash or materials capable of producing the appearance of gold or silver respectively; (e) 'utter' includes 'tender' and 'put off'; (f) 'counterfeit token of value' means any spurious or counterfeit coin, paper money, inland revenue stamp, postage stamp, or other evidence of value, by whatever technical, trivial or deceptive designation the same may be described, and includes also any coin or paper money, which although genuine has no value as money. 55-56 V., c. 29, s. 460; 63-64 V., c. 46, s. 3. Counterfeit.]-When upon the trial of any person it becomes necessary to prove that any coin produced in evidence against such person is false or counterfeit it shall not be necessary to prove the same to be false and counterfeit by the evidence of any moneyer or other officer of His Majesty's mint, or other person employed in producing the lawful coin in His Majesty's dominions or elsewhere, whether the coin counterfeited is current coin, or the coin of any foreign prince, state or country, not current in Canada, but it shall be sufficient to prove the same to be false or counterfeited by the evidence of any witness. Section 980. A coin made by splitting two genuine coins and joining the heads |