Surgical operations for patient's benefit.]—In these cases there is no difference between a licensed physician or surgeon and a person acting as physician or surgeon without license; in either case if a party having a competent degree of skill and knowledge makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter. R. v. Webb, 1 M. & Rob. 405, 2 Lewin 196, per Lord Lyndhurst; R. v. Williamson, 3 C. & P. 635.

It must appear that there was gross ignorance or inattention to human life. R. v. Long, 4 C. & P. 423. If any person, whether he be a regular or licensed medical man or not, professes to deal with the life or health of His Majesty's subjects, he is bound to have competent skill to perform the task that he holds himself out to perform, and he is bound to treat his patients with care, attention and assiduity. R. v. Spiller, 5 C. & P. 333

It is for the jury to say whether in the execution of the duty which the prisoner had undertaken to perform he is proved to have shewn such a gross want of care, or such a gross and culpable want of skill, as any person undertaking such a charge ought not to be guilty of. R. v. Ferguson, 1 Lewin C.C. 181. See also sec. 246.

66. Every one authorized by law to use force is criminally Excess. responsible for any excess, according to the nature and quality of the act which constitutes the excess. 55-56 V., c. 29, s. 58.

See note to secs. 63, 64 and 65.

67. No one has a right to consent to the infliction of death Consent to upon himself.

death.

2. If such consent is given, it shall have no effect upon the Causing criminal responsibility of any person by whom such death may death with be caused. 55-56 V., c. 29, s. 59.

If two persons enter into an agreement to commit suicide together and the means employed to produce death prove fatal to one only, the survivor is guilty of murder. R. v. Jessop, 16 Cox C.C. 204.

It is uncertain to what extent any person has a right to consent to his being put in danger of death or bodily harm by the act of another. Burbidge Cr. Law 201.

consent.

68. Every one is protected from criminal responsibility for Obedience to any act done in obedience to the laws for the time being, made de facto law. and enforced by those in possession de facto of the sovereign. power in and over the place where the act is done. 55-56 V., c. 29, s. 60.

Parties to Offences.

Who parties

69. Every one is a party to and guilty of an offence who,(a) actually commits it; or,

to offence.

Common

several

persons.

(b) does or omits an act for the purpose of aiding any person to commit the offence; or,

(c) abets any person in commission of the offence; or,

(d) counsels or procures any person to commit the offence. 2. If several persons form a common intention to prosecute intention by any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been known to be a probable consequence of the prosecution of such common purpose. 55-56 V., c. 29, s. 61.

Principals in second degree and accessories before the fact.]-This section makes any person who does an act for the purpose of aiding any other person to commit an offence, or who abets any other person in commission of an offence, a party to the offence committed by such other person. To abet is to be personally or constructively present at the commission of an offence, and to assist in the criminal act; but to aid is to help, or in any way to promote, facilitate or bring about the accomplishment of any criminal purpose by another, and this may be done without being present when the offence is perpetrated. Under the old rule of law the abettor, or the person who was present inciting or helping, was a principal in the second degree, while the person who, being absent, counselled, helped or facilitated in any way the commission of an offence which was afterwards perpetrated was an accessory before the fact. R. v. Roy (1900), 3 Can. Cr. Cas. 472.

To counsel and procure a person to commit an offence constitutes the counsellor or inciter a party to the offence, when it is committed; and by this section he can be proceeded against as a principal. The Queen v. Gregory (1867), L.R. 1 C.C.R. 79; Benford v. Sims, [1898] 2 Q.B. 641.

Du Cros v. Lambourne (1907), 1 K.B. 40, was an appeal from a conviction for driving a motor car at an unlawful speed. The evidence was that the appellant owned the car and was sitting in the front seat with a lady, who was driving it, and that it was going at the rate of fifty miles an hour, which was dangerous to the public. The Divisional Court (Lord Alverstone, C.J., and Ridley and Darling, JJ.), held that the conviction was right and that the appellant was aiding and abetting the of fence, and as such might properly be convicted as himself doing the unlawful act complained of, and that it was not necessary to charge him expressly with aiding and abetting.

By this and the following section accessories before the fact and aiders and abettors are declared to be guilty of the offence itself and may be charged as principals in the first degree. As to accessories after the fact see sec. 71.

Aiding or abetting.]-The words aider, abettor, accessory and accomplice as applied to crime, are often used as having the same meaning. But they are by no means synonymous. It is unlawful to aid or encourage the commission of crime. It is unlawful under certain circumstances to conceal the commission of crime. One who aids is, in ordinary language, called an aider or abettor. An accessory is one who takes an active but subordinate part. An accomplice, according to the ordinary meaning of the word, would seem to imply one who not only takes an active part, but positively aids in the accomplishment or completion of the crime. R. v. Smith (1876), 38 U.C.Q.B. 218, 227.

To make a person an "aider and abettor" he must have been present either actually or constructively.

A person is present in construction of law aiding and abetting if with the intention of giving assistance he is near enough to afford it should occasion arise; thus if he was watching at a proper distance to prevent a surprise, or to favour the escape of those who were immediately engaged, then he would be a principal in the second degree. Per MacMahon, J., in R. v. Lloyd (1890), 19 O.R. 352.

If a person sees that a crime is about to be committed in his presence and does not interfere to prevent it, that is not a participation rendering him liable, without evidence that he was there in pursuance of a common unlawful purpose with the principal offender. R. v. Curtley, 27 U.C.Q.B. 613.

Aid rendered to the principal offenders after the commission of the crime is alone insufficient to justify the conviction of the person so aiding, as a principal under this section. R. v. Graham (1898), 2 Can. Cr. Cas. 388.

Aiders and abettors are principals in the second degree and are sometimes called accomplices; but the latter term will not serve as a definition as it includes all the participes criminis, whether they are considered as principals in the first or second degree or merely as accessories before or after the fact. R. v. Smith (1876), 38 U.C.Q.B. 218, 228.

Form of charge.]—An information and warrant of arrest thereunder, charging the accused as an accessory to the violation of a statute named, without specifying the fact as to which he is alleged to be an accessory is void for uncertainty. R. v. Holley (1893), 4 Can. Cr. Cas. 510 (N.S.).

Such a warrant charges no offence, and neither it, nor a demand thereon is validated by Code sec. 669, which provides that no irregularity or defect in the substance or form of the warrant shall affect the validity of any proceeding at or subsequent to the preliminary enquiry before the justice. Ibid.

It has been held that the owner of a house who leases it to another person knowing and assenting when the lease was made to the purpose of the latter to maintain it as a common bawdy house, thereby does an act for the purpose of aiding the lessee to commit the indictable offence of keeping a disorderly house, and he may be indicted and convicted as a principal under sec. 69. R. v. Roy, 3 Can. Cr. Cas. 472 (Que.).

In cases of theft.]-On an indictment for, with three other persons, attempting to steal goods in a store, evidence was given by an accomplice that prisoner went with him to see a store, that prisoner went into the store to buy something to see how the store could be got into and that they and others planned the robbery and fixed the date; prisoner saw them off but did not go with them, the others went out and made the attempt, which was frustrated. It was held that as those actually engaged were guilty of the attempt to steal, the prisoner was properly convicted under 27 and 28 Vict. ch. 19, sec. 9, which enacted that whosoever shall aid, abet, counsel or procure the commission of any misdemeanour shall be liable to be tried, indicted and punished as a principal offender. R. v. Esmonde (1866), 26 U.C.Q.B. 152.

A person who knowingly assists a thief to conceal stolen money which he is in the actual and proximate act of carrying away, by receiving the money for the purpose of concealing it, is guilty of aiding and abetting in the theft, and may under sub-sec. (c) be convicted as a principal. R. v. Campbell (1899), 2 Can. Cr. Cas. 357.

Although the theft may be complete by the mere taking and carrying

4-CRIM. CODE.

away of stolen property, the subsequent carrying of same to a place of concealment by a person who did not participate in the taking, if done with a guilty knowledge and as a continuation of and proximately at the same time as the theft, is an "aiding and abetting" of the same. Ibid.

An act done which may enter into the offence, although the crime may be complete without it, may be considered as a continuation of the criminal transaction so as to make the participator an aider and abettor, although his participation occurs only after such acts have been done as in themselves would constitute the crime. Ibid.

Abettor of theft receiving stolen goods.]—If the accused were not an aider and abettor or a principal in the second degree in the commission of the theft, the circumstance that he was an accessory before the fact by counselling and procuring the commission of the theft, and therefore liable under sec. 69 to be convicted as a principal, does not prevent his conviction for the substantive offence of afterwards receiving the stolen property knowing it to have been stolen. Such an accessory before the fact who afterwards becomes a receiver of the stolen property may be legally convicted both of the theft and of "receiving." R. v. Hodge (1898), 2 Can. Cr. Cas. 350.

Under liquor laws.]-If it be contrary to law to sell liquor or any other article in a shop a sale by any clerk or assistant in his shop would primâ facie be the act of the shopkeeper. It may be, if he could shew that the act of sale was an isolated act, wholly unauthorized by him, and not in any way in the course of his business, but a thing done wholly by the unwarranted or wilful act of the subordinate, he might escape personal responsibility. Where one H. swore that he got a bottle of brandy and paid for it $1 in K.'s shop, that a woman served him, and no one else was in the store at the time, K. was convicted and the court upheld the conviction. R. v. King (1869), 20 U.C.C.P. 247; Reg. v. Williams, 42 U.C.Q.B. 464; R. v. Conrod, 5 Can. Cr. Cas. 414.

A buyer of liquor cannot, in respect of an illegal sale thereof made to him contrary to the Canada Temperance Act, be regarded in point of law as an aider or abettor. R. v. Heath (1887), 13 O.R. 471; Ex parte Armstrong, 30 N.B.R. 425.

In gaming.]-A broker who merely acts as such for two parties, one a buyer and the other a seller, without having any pecuniary interest in the transaction beyond his fixed commission and without any guilty knowledge on his part of the intention of the contracting parties to gamble in stocks or merchandise, is not liable as an accessory. R. v. Dowd (1899), 4 Can. Cr. Cas. 170 (Que.).

A person who acts as agent for another in managing a branch office for gambling transactions in stocks within Code sec. 231, knowing that there was no intention of transferring any property or title to property, is liable to conviction as an accessory under Code sec. 69, although his sole interest in the transaction was in the commissions paid to him for effecting the same. The King v. Harkness (No. 1), 10 Can. Cr. Cas. 193.

Mere acquiescence by a director in prohibited acts of a corporation is not such a participation therein as will constitute him an aider or abettor or make him criminally liable as a party under Code sec. 69, for the illegal acts of the corporation. The King v. Hendrie, 10 Can. Cr. Cas. 298, 11 O.L.R. 202.

Where an hotel keeper was not aware that gaming was being carried on in his hotel, and the only employee who knew it was not in charge of the premises, but was employed in a menial capacity, the hotel keeper was held not to be guilty of "suffering" gaming to be carried on in his premises contrary to a Licensing Act. Somerset v. Hart, 12 Q.B.D. 360.

Joint indictment.]—If the abettor and principal are indicted together as principals, the abettor may be convicted although the principal is acquitted. R. v. Burton, 13 Cox C.C. 71.

Common design of prisoners to escape.]-Where a parcel containing revolvers was thrown into a cab conveying prisoners and the defendant and at least one of the other prisoners in the cab armed themselves with the revolvers and formed the common intention of, by the use thereof, prosecuting the unlawful purpose of escaping from lawful custody and of assisting each other therein, the shooting by one of them of the constable in charge was an offence committed by one of them in the prosecution of such common purpose, and the commission thereof was or ought to have been known to be a possible consequence of the prosecution of such common purpose; each of them was, therefore, a party to such offence, and the offence, being murder in the actual perpetrator thereof, was murder in the defendant, even if he were not the actual perpetrator thereof, and he was properly found guilty by the jury of that offence. R. v. Rice (1902), 5 Can. Cr. Cas. 509, 4 O.L.R. 223.

Trade mark offences.]-No servant of a master, resident in Canada, who bona fide acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, gives full information as to his master, is liable to any prosecution or punishment for any offence defined in the part of the Code relating to trade mark offences, sec. 495.

offence.

70. Every one who counsels or procures another person to Person be a party to an offence of which that person is afterwards counselling guilty, is a party to that offence, although it may be committed in a way different from that which was counselled or suggested.

2. Every one who counsels or procures another to be a party Idem. to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew, or ought to have known, to be likely to be committed in consequence of such counselling or procuring. 55-56 V., c. 29, s. 62.

after the

71. An accessory after the fact to an offence is one who Accessory receives, comforts or assists any one who has been a party to fact. such offence in order to enable him to escape, knowing him to have been a party thereto.

2. No married person whose husband or wife has been a Husband party to an offence shall become an accessory after the fact or wife. thereto by receiving, comforting or assisting the other of them, and no married woman whose husband has been a party to an offence shall become an accessory after the fact thereto, by receiving, comforting or assisting in his presence and by his authority any other person who has been a party to such offence in order to enable her husband or such other person to escape. 55-56 V., c. 29, s. 63.

Accessory at common law.]-At common law the term accessory after the fact only applied to felonies for in misdemeanours all were principals.