6i8
THE GREEN BAG
remarks of Stephen, J., in one of these cases (Cundy v. Le Cocq, supra), it would seem that the maxim, Actus non facit reum nisi mens sit rea, is not nearly as robust as it once was. "The Act of Parliament," he says, "must be looked at to see what knowl edge is necessary to complete the criminal act. " And, in another of these cases (R. v. Tolson, supra), the same learned writer makes the following observations : — "Crimes are in the present day much more accurately denned by statute or otherwise than they formerly were. The mental element of most crimes is marked by one of the words 'maliciously,' 'fraudulently,' 'negligently,' or 'knowingly' (should he not have added 'wilfully'?). But it is the general, — I might, I think, say the invar iable, — practice of the Legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion, are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is denned." "Knowingly issuing" a fraudu lent prospectus means intentionally issuing it, under the English Companies' Act, 1867, Section 38.1 The word "knowingly" or "well knowing," in an indictment, will supply the place of a positive averment that the defendant knew the facts subsequently stated.2 It is absolutely necessary to con stitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offenses of a similar description; but, if notice or knowledge be unnecessarily stated, the allegations may be rejected as surplusage.3 Unlike the articles in the Canadian 1 Twycross v. Grant (1877), 2 C. P. D. 469; 46 L. J. C. P. 636.
- 2 Stra. 904; Com. Dig. Indictment, G. 6. See
Russ. & Ry. 317; i Stark, 390. ' See remarks of the court in Williamson v. Mlison (1802), 2 East, 445, as to charging a scientet in an action for a breach of a warranty for goods.
Criminal Code as to libel, there is nothing in this section (s. 136) to indicate what will constitute a "publishing" of false news within the meaning of the section. The words used in 3 Edward I, c. 34, are, "tell or publish any false news or tales," and in the criminal information in the Waddington Case (supra), the expression is, "did spread divers rumours and reports by . . . in the presence and hearing . . . declaring and publishing," etc. This follows the form in Chitty's Criminal Law (Vol. 2, p. 527), which is evidently intended for an oral or written or printed publication. It is reason ably plain that either would be sufficient. Publishing a libel, according to the Canadian Code (s. 318), is exhibiting it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by the person defamed or by any other person. There is only one case on record in Canada of a prosecution under this section (s. 136) of the Code. It is a conviction made by a judge of the Supreme Court of the Northwest Territories. The charge was, that the accused, "on or about the nine teenth day of March, 1907, did wilfully and knowingly publish a false tale, to wit: 'Americans not wanted in Canada; in vestigate before buying land or taking homesteads in this country;' by means whereof an injury was likely to be occa sioned to a public interest, namely, the immigration of Americans into Canada." The accused had made copies of the fol lowing announcement (Exhibit A) on store wrapping paper, and posted them up in his store windows. He had also taken a copy to a printing office and ordered five hundred posters from same: "Closing out sale. We have decided to leave Canada. We will now offer our entire stock for sale at the actual wholesale cost. Americans not wanted in Canada. Investigate before buying lands and taking homesteads in this country. Ten thousand dollars' worth
