and are not meant te distinguish between its physical and moral aspects. Rex v. Georges Codere, 12 Cr. App. R. 21.

In Reg. v. Ross Tuckett, 1 Cox C.C. 103, where the defence was insanity, counsel for the accused tendered evidence that the accused's maternal grandfather had been confined in a lunatic asylum. Maule, J., said: "I know that these questions are generally admitted. It is a matter of fact, and not a matter of law, that insanity is often heredit ary in a family, but I think you should prove that in the first instance, by the testimony of medical men and then your question will be legitimate."

The Court in its discretion will read a doctor's report of the mental state of an appellant founded on an examination made before, but drawn up after, the date of the act charged, and not put in at the trial. R. v. Coelho, 10 Cr. App. R. 210.

It is not a good defence that defendant, though he can distinguish between right and wrong, is so affected by disease that he is incapable of controlling his actions. Rex v. Coelho, 10 Cr. App. R. 210; 30 T.L.R. 535; R. v. Creighton, 14 Can. Cr. Cas. 349; but see contra R. v. Hay, 22 Cox, C.C. 268; R. v. Fryer, 24 Cox C.C. 403. For a discussion of the question of insanity see Mercier on Criminal Responsibility and McNaghten's Case, 10 Clark & F., 200, 4 St. Tr. N.S. 847.

A warrant may be issued by the Lieutenant-Governor of the province for the detention in an asylum of a prisoner acquitted on account of insanity at the time of the offence, (Code, sec. 969), although found sane at the time of trial. Re Duclos, 8 Que. P.R. 372, 12 Can. Cr. Cas. 278, 32 Que. S.C. 154.

Insanity of prisoner]—No person can be rightly tried, sentenced or executed while insane. If there be sufficient reason to doubt whether an accused person is unable, on account of insanity, to conduct his defence, the question whether by reason of such insanity he is unfit to take his trial should first be tried. Rex v. Leys, 16 O.W.R. 544.

Whether there was any evidence of insanity to support the acquittal on that ground is properly reserved as a question of law" at the instance of the prosecution. R. v. Phinney, 36 N.S.R. 264, 6 Can. Cr. Cas. 469.

Drunkenness as affecting sanity and questions of intent]-Drunkenness is not a good defence to murder unless it can be positively proved that it was of such a nature that the accused did not know the difference between right and wrong. R. v. Galbraith (1912), 8 Cr. App. R. 101; R. v. Davis, 14 Cox C.C. 563.

A man is not excused from crime by reason of his drunkenness. But, although drunkenness is not to be taken as any excuse for crime, yet where the crime is such that the intention of the party committing it is one of the constituent elements, the fact that a man was in drink is to be looked at in considering whether he formed the intention

necessary to constitute the crime. If his drunkenness prevented his forming such an intention in a homicide case, he would be guilty of manslaughter and not murder; though such an act in a sober man would prove an intention to do grievous bodily harm. R. v. Doherty, 16 Cox C.C. 306; R. v. Wilson, 46 N.S.R. 59, 21 Can. Cr. Cas. 448.

In The King v. Meade [1909], 1 K.B. 895, the trial of a prisoner for murder, evidence was given that he was in drink at the time of the commission of the act charged, and the judge gave the following direction to the jury, which was upheld by the Court of Criminal Appeal: "In the first place, everyone is presumed to know the consequences of his acts. If he be insane the knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of a crime that a motive shall exist in the mind of the man who does the act, the law declares this that if the mind at that time is so obscure by drink, if the reason is dethroned, and the man is incapable, therefore, of forming that intent, it justifies the reduction of the charge from murder to manslaughter."

And see R. v. Studdard, 25 Can. Cr. Cas. 81; R. v. Jessamine, 19 Can. Cr. Cas. 214, 3 O.W.N. 753; R. v. Moke [1917], 3 W.W.R. 575.

So drunkenness is not an excuse for attempted suicide, but may be a material fact on the question of intent. R. v. Doody, 6 Cox C.C. 403.

Procedure and defence of insanity]-See secs. 966-970.

Instruction to jury on insanity defence]-An instruction to the jury on a plea of insanity in a case in which evidence is adduced under Code sec. 19, sub-sec. (2), as to specific delusions, should not be limited so as to exclude from them the right to find on competent evidence that the accused could apart from that sub-section be acquitted on the ground of insanity. R. v. Moke [1917], 3 W.W.R. 575 (Alta.).

Compulsion by threats.

20. Except as hereinafter provided, compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for the commission, by a person subject to such threats, and who believes such threats will be executed, and who is not a party to any association or conspiracy, the being a party to which rendered him subject to compulsion, of any offence other than treason as defined by this Act, murder, piracy, offences. deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and

arson.

Origin]-Sec. 12, Code of 1892.

"Except as hereinafter provided"]-This refers to the special exception made by sec. 131 as regards taking an unlawful oath to commit a crime or the taking of a seditious oath.

Compulsion as a defence or matter of mitigation]-Upon the subject of sec. 20, it is said in Note A of the English Royal Commissioners upon codification of the criminal law (p. 43):

"There can be no doubt that a man is entitled to preserve his own life and limb; and, on this ground, he may justify much which would otherwise be punishable. The case of a person setting up as a defence that he was compelled to commit a crime is one of every day. There is no doubt on the authorities that compulsion is a defence when the crime is not one of a heinous character. But killing an innocent person, according to Lord Hale, can never be justified. He lays down the stern rule: If a man be desperately assaulted and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself than kill an innocent man.'"

The commissioners pointed out that the rule appeared to have been relaxed in the high treason cases in 1746, but they conclude by saying:

"We have framed sec. 23 of the draft code (Eng.) to express what we think is the existing law, and what at all events we suggest ought to be the law."

And Cross, J., delivering the opinion of the court in R. v. Farduto 21 Can. Cr. Cas. 144, 19 Rev. Leg. 165, said, in quoting from the commissioners' report:

"That must mean, I take it, that the view of Lord Hale has received the approval of the high authority of the English commissioners upon whose report our code is based. Hence the rule of sec. 20. It does not follow that compulsion is never an excuse for killing, but the compulsion must be such as to make the accused person a mere inert physical instrument." Thus it is said in Russell (Can. ed.), p. 90:

"Persons are properly excused from those acts which are not done of their own free will, but in subjection to the power of others. Actual physical force upon the person and present fear of death may in some cases excuse a criminal act. . . Thus, if A. by force takes the arm of B. in which is a weapon, and therewith kills C., A. is guilty of murder, but B. is not; but if it is only a moral force put upon B. as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. ... Sir J. Stephen expresses the opinion that in most, if not all cases, the fact of compulsion is matter of mitigation of punishment, and not matter of defence."

Wife's crime committed in husband's presence]-See sec. 21.

Compulsion of wife.

21. No presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband.

Origin] Sec. 13, Code of 1892.

Compulsion of wife not presumed from husband's presence]-Referring to the legal presumption still in effect in England but negatived by Code sec. 21, Alverstone, L.C.J., in R. v. Court (1912), 7 Cr. App. R. 127, said he was not certain that this rule of law is beneficial in the administration of justice, and that it certainly ought not to be extended. In that case it was unsuccessfully urged that the accused woman should have the benefit of the presumption as regards the coercion of the man with whom she was living as his wife, or at least that the jury should have been invited to acquit, if they thought that she was acting under the man's influence.

In Brown v. Attorney-General for New Zealand (18 Cox, 658; [1898] A.C. 234; 67 L.J.P.C.), Halsbury, L.C., said: "The mere fact that the parties are married never even formed a presumption of compulsion by the husband. Even as carly as Bracton's time, if the wife was voluntarily a party to the commission of a crime, her coverture furnished no excuse."

In R. v. Baines, 69 L.J.Q.B. 681; 19 Cox, 524, husband and wife were jointly indicted for feloniously receiving stolen property, and were convicted. Russell, L.C.J., in his judgment, said that the mere fact of the marriage does not raise any presumption of coercion by the husband. If the wife has taken an independent part, even if the husband is in the neighborhood, she is guilty."

See also R. v. Green, 24 Cox C.C. 41, 9 Cr. App. R. 228; R. v. Williams 42 U.C.Q.B. 462; R. v. McGregor, 26 Ont. R. 115; R. v. Howard, 45 U.C.Q.B. 346; R. v. Torpey 12 Cox C.C. 45.

As to theft or receiving by husband or wife of property belonging to the other, see Code sec. 354 amendment of 1913.

Accessory after the fact-See sec. 71.

Ignorance of the law.

22. The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

Origin]-Sec. 14, Code of 1892.

Ignorance of the law]-The maxim ignorantia juris non excusat has long been applied in English criminal law. See Regina v. Crawshaw (1860), 8 Cox C.C. 375; Rex v. Bailey (1800), R. & R. 1; McNaghten's Case (1843), 10 Cl. & F. 200, at p. 210. The rule is put thus in Archbold's Criminal Pleading, 23rd ed., at p. 33:

"Ignorance of the law will not excuse from the consequences of guilt any person who has capacity to understand the law."

The general rule of law is that a person cannot be convicted in a proceeding of a criminal nature unless it can be shown that he had a guilty mind. In Cundy v. LeCocq (1884), 13 Q.B.D. 207, at p. 210, Stephen, J., however, says: "In old time, and as applicable to the common law or to earlier statutes, the maxim (actus non facit reum, nisi mens sit rea) may have been of general application; but a difference has arisen owing to the greater precision of modern statutes. It is impossible now. . . to apply the maxim generally to all statutes, and the substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created." And see Bank of N.S.W. v. Piper [1897], A.C. 383.

Where the defendant was well aware of the facts, and his only mistake was as to the law, that is no defence. R. v. Brinkley 12 Can. Cr. Cas. 454 at 469, per Maclaren, J.A., distinguishing Macleod v. Attorney-General of N.S.W. [1891], A.C. 455.

All persons are bound to know and obey the laws. R. v. Mailloux, 3 Pugsley (N.B.) 493; R. v. Moodie, 20 U.C.Q.B. 399. Although ignorance of the law is not a defence, it constitutes a ground for an application to the Executive for mercy. R. v. Madden, 10 L.C. Jur. 344.

But a person acting under a bad warrant or process is protected under the circumstances stated in Code sec. 29, which expressly declares that ignorance of the law shall in such case be an excuse. Sec. 29 thus forms an express exception to the general rule declared in sec. 22. It seems that this section does not cover ignorance of foreign law; the question of the validity of a divorce under the foreign law of the state where granted would be a question, of fact but, the question whether or not the foreign decree was valid in Canada as a defence to a bigamy charge laid in Canada is one of law. Meredith, J.A., in R. v. Brinkley, 12 Can. Cr. Cas. 455 at 477, 14 O.L.R. 434. As to the doctrine of mens rea see note to sec. 72.

Execution of sentence.

23. Every ministerial officer of any court authorized to execute a lawful sentence, and every gaoler, and every person lawfully assisting such ministerial officer or gaoler, is justified in executing such sentence.

Origin]-Sec. 15, Code of 1892.

Execution of erroneous sentence or sentence without jurisdiction]-See sees. 26 and 27.