Supreme Court Judgments

Supreme Court of Canada

Kowbel v. R., 1954 S.C.R. 498

Date: 1954-06-26

Harry Kowbel (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1954: March 19; 1954: June 26.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal lato—Conspiracy—Whether a husband and a wife can conspire together alone to commit the indictable offence of forgery—Criminal Code, ss. 16, 21, 573.

The appellant, charged under s. 573 of the Criminal Code, was convicted of having unlawfully conspired with his wife to commit the indictable offence of forgery. His conviction was affirmed by the Court of Appeal for Ontario.

Held (Fauteux J. dissenting), that the appeal should be allowed and the conviction quashed.

A husband and a wife cannot be found guilty under s. 573 of the Criminal Code of conspiring with each other alone to commit the indictable offence of forgery, because judicially speaking they form but one person and are presumed to have but one will, and one person alone cannot conspire.

Per Fauteux J. (dissenting): The common law rule that a husband and a wife cannot be guilty of conspiring alone together appears to have stemmed from the doctrine of conjugal unity. But today that doctrine has disappeared and husbands and wives have each an independent legal entity, in both the field of civil and criminal matters. Consequently, it must be concluded that the rule has perished with the disappearance of the reason which gave it life and support.

Assuming that such a conclusion is not justified, the provisions of s. 16 of the Criminal Code cannot apply since the rule has been altered by and is, at least, inconsistent with the provisions of the Criminal Code.

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APPEAL from the judgment of the Court of Appeal for Ontario[1], affirming the appellant’s conviction on a charge of conspiracy with his wife to commit the indictable offence of forgery.

F.L. O’Donnell for the appellant.

W.C. Bowman Q.C. for the respondent.

The judgment of Kerwin and Taschereau JJ. was delivered by:—

TASCHEREAU J.—The appellant was convicted of unlawfully conspiring with one Beatrice Kowbel to commit the indictable offence of forgery, and sentenced to five months in jail. The Court of Appeal[2] dismissed the appeal, Mr. Justice Hogg dissenting. Beatrice Kowbel is the appellant’s wife, and the only point at issue before this Court, is whether or not a husband and wife are capable in law of conspiring together. The Court of Appeal held that they could.

The charge was laid under section 573 of the Criminal Code. It is to the effect that every one is guilty of an indictable offence, who in any case not otherwise provided for, conspires with any person to commit any indictable offence. It is submitted that these broad terms necessarily include husbands and wives, and that their matrimonial status does not eliminate the essential element of duality in the crime of conspiracy. It has also been urged that the old presumption that a married woman committing an offence, did so under compulsion because she committed it in the presence of her husband, has now been abolished (Criminal Code 21), and replaced by a doctrine more in conformity with our modern times.

It is trite law that husbands and wives may invoke not only the defences afforded to them by the Code, but also all the other defences known to the common law, which were in force in 1892, unless they are inconsistent with some dispositions of the Code. (Criminal Code, section 16).

I have reached the conclusion that at common law, a husband and a wife could not be found guilty of conspiracy, because judicially speaking they form but one person, and

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are presumed to have but one will. Of course, the theory of unity between husbands and wives and the defence of compulsion must not be confused. (Lush, “Husband and Wife” 4th Ed. p. 597). Both are entirely different. And as the defence raised in the present case belongs to the former category, it follows that it stands unaffected by the abolishment of the presumption of coercion. For instance, the doctrine of presumption of coercion was applied when a wife committed a crime in the presence of her husband, but the fiction that they are but one person in law is the underlying principle at the root of the law which says that during cohabitation, one cannot be convicted of stealing the property of the other.

I do not think that the words “every one” found in section 573 (Cr. C) dealing with conspiracy include husbands and wives any more than they include children under 7 years of age or insane persons. These words are defined in section 2(13) (Cr. C.), and they apply only to persons in relation to such acts and things as they are capable of doing. The incapacity to conspire is not statutory, but it is one of those old common law defences, which an accused person is at liberty to raise before the courts of this country. (16 Cr. C.). And far from being inconsistent, I think that it is in harmony with all the other dispositions of the Code dealing with incapacities resulting from marriage.

As far back as 1365, during the reign of Edward II, we find a reported judgment (Year Books, 38 Edward III, Parts 2-3) written in Norman, and of which the Court obtained a translation. In that case, according to the report, it was common ground between the parties that a husband and a wife could not conspire together, but a further question arose because a third party was involved in the alleged conspiracy. “The writ was abated” on the ground that the facts did not reveal any act of conspiracy. Although there was no judicial pronouncement on the main question of conspiracy between husband and wife, this case is most useful to show what was the state of the law at that time, and how it was understood by the lawyers of England over six hundred years ago. As in many other domains,

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scientific or historical, in the field of law, tradition is a very accurate medium to convey to other generations what has been the universal “consensus” of the legal minds.

Since then, it has been generally recognized that a husband and a wife were legally incapable of conspiracy. Such a capacity seems to have been considered as repugnant to the common law.

In Hawkin’s Pleas of the Crown, Vol. 1, page 448, we find:—

Sect. 8. It plainly appears from the words of the statute, that one person alone cannot be guilty of conspiracy within the purport of it; from whence it follows, that if all the defendants who are prosecuted for such a conspiracy be acquitted but one, the (a) acquittal of the rest is the acquittal of that one also. Also upon the same ground it hath been holden, that no such prosecution is maintainable against a (b) husband and wife only, because they are esteemed but one person in law, and are presumed to have but one will.

After dealing with the legal consequences of marriage, and after enumerating certain incapacities that resulted to the spouses therefrom, Stephen in his “Commentaries on the Laws of England” (Vol. 2, 21st Ed.), indicates those that have been abandoned by the common law, and also those that have been retained. At the foot of page 491, he deals with the very problem before this Court and says that:—

A husband and wife cannot, with certain important exceptions, be guilty of stealing one another’s property, nor can any agreement to which they alone are parlies amount to a criminal conspiracy, nor can a wife be an accessory after the fact to her husband’s felony.

The same author (Vol. 4, page 165) reaffirms the same rule of the common law and writes:—

The collaboration of two or more persons is essential to the existence of a conspiracy. A man cannot conspire with himself. If, therefore, two persons are indicted for conspiracy and one is acquitted, the other cannot be convicted, even though he may have pleaded guilty. Husband and wife are for this purpose regarded as one person and cannot be indicted for conspiracy with one another; though both may be charged with conspiracy with a third person.

Kenny in “Outlines of Criminal Law” (16th Ed. page 340), says:—

Moreover, the law applies here the old doctrine that for some certain purposes husband and wife can be counted as one person, so that an unlawful combination by him and her alone does not amount to a conspiration.

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Archbold in “Criminal Pleading Evidence and Practice” (32nd Ed. page 21):—

A husband and wife cannot alone be found guilty of conspiracy, for they are considered in law as one person, and are presumed to have but one will.

Phipson “On Evidence” (9th Ed. page 99):—

At common law, husband and wife, being regarded as one person, cannot be charged with, or convicted of, conspiracy together, unless charged with conspiring with a third person.

See also Halsbury, “Laws of England”, (Vol. 9, 1st Ed. page 264) where it is said:—

Husband and wife cannot alone commit a crime of conspiracy, as they are deemed but one person in law, but they may commit the crime of conspiring with others.

In Roscoe’s Criminal Evidence (16th Ed., at page 749), we find the following statement:—

A married couple cannot be guilty of conspiracy (only) with each other.

In Warburton & Grundy, “Leading Cases in the Criminal Law” (5th Ed. at page 167), it is stated:—

It may be mentioned that a man and his wife cannot be indicted for conspiring together, because they are in law one person.

In Director of Public Prosecutions v. Blady[3], Mr. Justice Lush expressed his views as follows:—

The foundation of the rule which prevented a wife from giving evidence against her husband was the fact that they were one person in the eye of the law. No doubt that rule was applied in every case except where it was necessary either for the safety of the wife or for her wellbeing to relax it. The rule shewed itself in strange ways both in the criminal and in the civil law. Husband and wife being one person could not be indicted or convicted of conspiracy one with the other.

It is true that Mr. Justice Lush was dissenting, but not on the point of capacity or incapacity to conspire. It has been said during the argument that this statement was merely an “obiter dictum”. “Obiter dicta” are not always of equal value. Some are mere casual expressions of opinion, unnecessary for the determination of the case. Some others are of a different nature and carry more weight, if they are not obiter to the view taken of the case by the judge. The part of the judgment that I have cited forms part of the reasoning of the learned Justice, who had to determine whether or not a wife in a certain case, was an

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admissible witness for the prosecution against her husband. (Vide The Law Quarterly Review, 1931, Vol. 47, page 318; Nixon vs. Attorney General[4].

In a New Zealand case, The King v. McKechie[5], the Court of Appeal of that country decided as follows:—

A husband and wife cannot conspire together so as to be guilty of the crime of conspiracy.

In the Peel case, reported in The Times, March 8th, 1922, page 7, Mr. Justice Darling expressed the following opinion:—

Of course, it takes at least two persons to conspire, and the husband and wife being one person in law, the situation is that they cannot conspire.

There are no judgments in Canada, dealing with this particular matter, but I think it is well settled that since many centuries, it has been the law of England that a husband and wife cannot alone conspire to commit an indictable offence. These views have been expressed during over six centuries, and I would be slow to believe that the hesitations of a few modern writers could justify us to brush aside what has always been considered as the existing law. (Eversley, Domestic Relations, 5th Ed., page 158). It may very well be amended by legislative intervention, but as long as it is not, it must be applied

Provincial laws which are of a purely local character, dealing with the emancipation of the wife, cannot have any bearing on the present case. Otherwise, there would surely be confusion arising out of a lack of uniformity of provincial enactments, and furthermore, it is only with the Federal Parliament that the sole power to legislate in such matters lies.

I would allow the appeal and quash the conviction.

ESTEY J.:—I agree with the reasons and conclusions of my brother Taschereau.

I would add that in considering the criminal law in respect to conspiracy it is important to keep in mind the statement of Mr. Justice Sedgewick, when speaking for this Court:

It has never been contended that the Criminal Code of Canada contains the whole of the criminal common law of England in force in Canada. Parliament never intended to repeal the common law, except

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in so far as the Code either expressly or by implication repeals it. So that if the facts stated in the indictment constitute an indictable offence at common law, and that offence is not dealt with in the Code, then unquesionably an indictment will lie at common law; even if the offence has been dealt with in the Code, but merely by way of statement of what is law, then both are in force. The Union Colliery Company v. The Queen[6].

See also Brousseau v. The King[7].

That Parliament did not intend to codify under the Code all of the common law in respect to conspiracy is evident first because no definition of conspiracy is included therein and second because the sections dealing therewith are restricted to specific circumstances (see ss. 78, 79, 218, 266, 444, 496 and 573). The position may be illustrated from the provisions of the last-mentioned section (s. 573) which is restricted to those who conspire “to commit any indictable offence”. The house of Lords, in O’Connell v. The Queen[8], stated:

The crime of conspiracy is complete if two, or more than two, should agree to do an illegal thing; that is, to effect something in itself unlawful, or to effect, by unlawful means, something which in itself may be indifferent or even lawful.

This and other definitions have been adopted by the courts in Canada. While differing in certain respects, these definitions do not in any way restrict the criminal offence to that of a conspiracy to commit an indictable offence. It follows that the Code does not cover conspiracies to commit summary conviction offences, nor, indeed, any unlawful act which does not constitute an indictable offence. Moreover, the Code does not cover a conspiracy to do “by unlawful means, something which in itself may be indifferent or even lawful”. The foregoing, as well as other definitions, indicates the great variety of circumstances in which the offence of conspiracy may arise. This feature is emphasized by Harrison in his book entitled “Law of Conspiracy” where at p. 67 he says:

The quotations just given show how wide is the scope of the offence of conspiracy, and also how difficult it is to arrive at an adequate definition.

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It is evident that a portion of the law of conspiracy in Canada must be found in the common law. This fact would be present to the Members of Parliament when enacting the provisions of the Code. In these circumstances, apart from express words which are not here present, it ought not to be concluded that Parliament intended that with respect to those conspiracies specifically dealt with in the Code a husband and wife might be guilty of conspiracy, while with respect to those dealt with at common law the husband and wife could not be guilty of conspiracy.

Moreover, Hawkins states the basis upon which the law is founded to be that a husband and wife “are esteemed but one person in law, and are presumed to have but one will.” The judges and authorities quoted by my Brother Taschereau accept this basis, which seems to involve the relationship or status of husband and wife and not merely one of the consequences arising therefrom; viz., that they cannot contract one with another. The statutes which have given to a married woman the right to contract with her husband have been, in the main, directed to her proprietary rights and have not interfered with her status, nor with that confidential and intimate relationship that should always obtain between husband and wife and which has so long been recognized and protected under our law. While, therefore, the gist of a conspiracy is the concluded agreement, it does not follow that a married woman’s capacity to contract with her husband constitutes an answer to the common law that a husband and wife, when they are the only parties involved, cannot be guilty of a conspiracy.

The appeal should be allowed and the conviction quashed.

CARTWRIGHT J.:—I agree with the reasons given by my brother Taschereau and those given by Hogg J.A., in the Court of Appeal.

I wish however to add a few words in regard to one of the arguments which found favour with the majority in the Court of Appeal i.e. that the wording of section 573 of the Criminal Code is free from any ambiguity, includes within its ambit everyone whether married or unmarried, and so destroys the common law doctrine that a husband

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and wife cannot be guilty of conspiring with each other alone. It will be observed that section 573 deals only with the crime of conspiring to commit an indictable offence. It leaves untouched conspiracies to commit criminal offences which are not indictable and conspiracies in which two or more persons agree to effect something in itself unlawful (though not necessarily criminal) or to effect by unlawful means something which in itself may be indifferent, or even lawful. Such conspiracies are indictable at common law and there are a number of cases, collected in Tremeear’s Criminal Code 5th Edition, at page 633, in which there have been convictions for such conspiracies in this country. Had it been the intention of Parliament to abolish the common law defence with which we are concerned it would be expected that plain words dealing expressly with such defence would have been used as was done, for example, when the presumption of compulsion was done away with by section 21; and I can find nothing in the general words of section 573 to warrant imputing to Parliament the intention of taking away this ancient common law defence of a husband and wife in a case in which they are charged with having agreed together to commit an indictable offence while leaving the defence available to them in the other types of indictable criminal conspiracies mentioned above. For these reasons as well as for those given by my brother Taschereau and Hogg J.A., I think that this argument of the respondent must be rejected.

I would allow the appeal and quash the conviction.

FAUTEUX J. (dissenting):—This is an appeal from a majority judgment of the Court of Appeal for Ontario dismissing the appeal of Kowbel against his conviction that he did unlawfully conspire with Beatrice Kowbel -his wife- to commit the indictable offences of forgery and uttering a forged document.

The sole defence put forward by the appellant, before the Court of Appeal and in this Court, rests on two propositions:—(i) At common law, a husband and wife cannot be guilty of conspiring together; (ii) This common law principle has been preserved in Canada by the provisions of s. 16 of the Criminal Code.

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The common law rule. The rule is mentioned by text writers of repute who dealt with the laws of England either generally or with the relevant branches thereof, i.e., criminal law, law on domestic relations or the doctrine of legal unity of husband and wife. Whether they affirm, doubt or deny its application to modern times, they all trace the rule to Hawkins’ Pleas of the Crown, on whose authority it rests.

It is remarkable however that, as mentioned by Glenville L. Williams, LL.D., in an article on Legal Unity of Husband and Wife, 10 Modern Law Review 16, there seems to be no case in which the rule has been applied by an English Court. Indeed, and at the hearing before us, no such precedent has been indicated. More remarkable, again, is the fact that the only case upon which Hawkins himself relies -and which dates back to the reign of Edward III, Year Book (1363/4) H., 38 E. 3, 3a- is one where a third party was charged with the husband and the wife, and where the precise question, i.e., whether husband and wife can conspire by themselves alone, does not appear to have been decided or even considered. A previous case, not alluded to by Hawkins and reported in Year Book (1345) 19 E. 3 R.S. 346, is also one where a third party was charged with the husband and the wife; the objection for the defence was that “If this writ were good, for the same reason one would be good if it were brought against a husband and wife alone, and it could not be understood that the wife, who is at the will of her husband, could conspire with him, because the whole would be accounted the act of the husband.” The writ in this case was upheld without reasons given.

The rule and its proximate reason are expressed as follows by Hawkins’ Pleas of the Crown, vol. 9, 448:—

Section 8. It plainly appears from the words of the statute, that one person alone cannot be guilty of conspiracy within the purport of it; from whence it follows, that if all the defendants who are prosecuted for such a conspiracy be acquitted but one, the acquittal of the rest is the acquittal of that one also. Also upon the same ground it hath been holden, that no such prosecution is maintainable against a husband and his wife only, because they are esteemed but one person in law and presumed to have but one will.

Thus it appears that the rule rests ultimately on an ancient legal conception of the status of husband and wife who, being then considered as one person were, for that reason, unable to enter an agreement with one another;

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hence the consequential impossibility for either to commit with the other a crime, the essence of which was then, in part at least, the agreement. The rule appears then to have stemmed from the doctrine of conjugal unity.

Relying on Hawkins’ proposition and the case he quoted, Staunford, in P.C. 174(a), repeated the same opinion. And from these writers, the rule that husband and wife cannot be guilty of conspiracy together passed into modern textbooks, without having received judicial sanction in the case invoked in support thereof.

The origin and the ensuing and changing legal import of the doctrine of conjugal unity has been considered by Williams (supra) whose views, in this respect, may substantially be summarized as follows: The legal maxim that husband and wife are one person in the eyes of the law has a biblical origin. It is found in the earliest English law book, the “Dialogus de Scaccario” and in Bracton. It then passed to Littleton and Coke. When judges came to state its legal aspect, they did it with caution. Thus in Wenman v. Ash[9], Maule J. said:—“In the the eyes of the law, no doubt, man and wife are for many purposes one; but that is a strong figurative expression, and cannot be so dealt with as that all the consequences must follow which would result from its being literally true.” And in Phillips v. Barnett[10], Lush J. declared: “It is a well-established maxim of the law that husband and wife are one person. For many purposes, no doubt, this is a mere figure of speech, but for other purposes it must be understood in its literal sense.” In truth, the maxim is a misleading one even as applied to the unreformed common law. Blackstone expressed the equation more soberly in saying: “By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.” (1 Commentaries 442). Even so interpreted, the maxim is an imperfect interpretation of the common law. Indeed, until the intervention of equity, according to Pollock and Maitland (2d. ed. E. 485): “The main idea which governs the law of husband and wife

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is not that of an ‘unity of person’, but that of the guardianship, the mund, the profitable guardianship, which the husband has over the wife and over her property.” And Williams’ conclusion is that, with the intervention of equity and later of statute, it became crystal clear that a woman on marriage retained a legal personality distinct from that of her husband and that it seems fairly clear that the alleged common law rule that husband and wife cannot be guilty of conspiracy together, if it exists, owes its origin to the doctrine of unity, or at any rate to the doctrine of the wife’s subordination.

Other text-writers, who have specialized in the study of criminal conspiracy or have dealt with this subject matter in relation to domestic relations, have doubted the application of Hawkins’ rule to modern times. Thus, reference may be had to Wright’s Criminal Conspiracies (1887) p. 59:—

The ancient writ of conspiracy appears not to have lain against husband and wife alone. It is said to have lain against husband, wife and a third person. (See Yearb. 38 Edw. 3, 3a: 40 Edw. 3, 19: 41 Edw. 3, 29: Fitzh. N.B. 116, 1: Staundf. 174). But the effect of the ancient authorities is doubtful; and it may be questioned whether a husband and wife could not be convicted of conspiracy in any of its modern forms. Proof, however, of coercion by the husband would in such a case have the effect of negativing the fact of conspiracy, since the force would avoid the agreement.

Harrison: Law of Conspiracy, page 76:—

It is generally stated (for example, by Hawkins, “Pleas of the Crown”, i., 72, 8) that husband and wife cannot by themselves be convicted of conspiracy, since in the eyes of the law they constitute one person, and one alone cannot conspire. This was the case as regards the old writ of conspiracy (see Y.B. 38 Edw. 3. 3a; 40 Edw. 3. 3, 19; 41 Edw. 3. 3, 29; Fitz. D.N.B. 116, 1), but it has been doubted whether it would apply to the modern offence, unless coercion could be proved or presumed (Wright on Conspiracies, p. 75). In R. v. Peel (Times, 8th March, 1922), however, Darling, J., said that this rule still obtained: “Of course, it takes at least two people to conspire, and being one person in law the situation is that they” (that is, husband and wife) “cannot conspire”. Husband and wife can conspire jointly with another person (see R. v. Whitehouse (1852) 6 Cox C.C. 38.

Eversley on Domestic Relations, 6th ed. page 150:—

It is said that a husband and wife cannot be indicted for a conspiracy, because they are deemed to be as one person in law, and have but one will (1 Hawk. P.C. c. 72, s. 8); but it is doubtful now whether that proposition would be held to be good law if it were shown that the agency of the wife was as active as that of the husband.

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Whatever, in the past, may have been the legal import and effects of the doctrine of conjugal unity, and whatever influence the doctrine, as modified with time, may claim to have exerted on the body of Canadian law, Hawkins’ proposition that husband and wife “are esteemed but one person in law, and are presumed to have but one will” is no longer true. No one disputes that, in both the field of civil and criminal matters, husband and wife have each an independent legal entity.

In civil matters, the remnants of legal subordination of the wife to the husband, which, in either of the two jural systems obtaining in civil matters in this country, the law as to legal capacity may still manifest, assert of themselves the duality of entity.

As to criminal matters, it must be observed that legal capacity is a notion foreign to our criminal law. Indeed, Parliament did not purport to create, define, deal or even be concerned with legal capacity, but rather imposed generally on all people within Canada—without considering at all what the legal capacity of the offender might be, according to either provincial or foreign Legislatures—criminal responsibility and punishment for such commissions or omissions which, by action of Parliament, are declared to be offences. In this respect and as manifested by the all-embracing nature of the opening words of each section, i.e., “Everyone is guilty...” the substantive provisions of the Code are, with few exceptions in rare cases, uniformly enforceable throughout Canada against anyone who violates them, general exception being made, not by reason of lack of legal capacity, of legal subordination or marital status, or of presumed coercion, but by reason of want of a discretion essential to mens rea in the cases of children under seven, children between seven and fourteen, and persons labouring under natural imbecility, disease of the mind or under specific delusions.

Unless they can be found to come within the classes of persons so declared to escape the criminal responsibility for the commission of any offence, husband and wife cannot, on the basis of marital status, claim a defence, save

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in the case of these few crimes, which do not include conspiracy, where Parliament, on account of marital status, excluded them from the general application of these particular sections.

In brief, it is clear from such legislation at least, and, particularly, from the general provisions of s. 21 enacting that “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” that the doctrine of conjugal unity has been, by and in criminal law, negatived. And as to these isolated exceptions, excluding husband and wife from the general operation of a few sections of the substantive law—which do not include conspiracy—they, of course, stem from the very nature of domestic relations of those having marital status, but a marital status which, in so far at least as our criminal law is concerned, it is sufficient to say, no longer embodies the legal notion of conjugal unity or subordination as it is said to have had in a far distant past.

Thus the doctrine of conjugal unity, the ultimate substratum of Hawkins’ rule, having perished by legal action, the question is whether the rule itself has not perished.

Accepting that the rule formulated by Hawkins must be taken as a true expression of the law as it then existed, the substitution of a different legal concept with respect to marital status calls for different jural conclusions. The rule itself implies that, had the state of the law been then what it is today, i.e., had each spouse had a distinct legal entity, they would have been found to be amendable to justice on a charge of conspiracy. I have, therefore, formed the view that the rule has perished with the disappearance of the reason which gave it life and support.

Assuming that such a conclusion on the first proposition of the appellant is not justified, I adopt respectfully the views expressed by Mr. Justice Laidlaw of the Court of Appeal for Ontario, who, speaking for the majority, reached the conclusion that the provisions of s. 16 of the Criminal Code cannot apply since the rule invoked by the appellant has been altered by and is, at least, inconsistent with the provisions of the Criminal Code. In this respect, I only want to add a few comments. It cannot be presumed that

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when Parliament enacted the Criminal Code, it intended that the actual enforcement of such an important and far reaching section as s. 573—conspiracy to commit any indictable offence—would not be uniform throughout Canada but would, in principle or measure, be dependent upon such legislation with respect to marital status or legal capacity of the wife, as, from time to time, provincial or foreign Legislatures would, acting within their exclusive legislative competency, choose to adopt.

Furthermore, it has never been suggested that a spouse cannot be charged with inciting the other spouse to commit a crime, and there would seem to be no good reason for distinguishing between incitement and conspiracy; for, in both of the cases, commission of the crime is inconceivable unless there are, at least, two persons.

I have not failed to consider the majority judgment rendered by the New Zealand Court of Appeal in The King v. McKechie and the obiter dictum of Darling J., as he then was, in the Peel case.

I would dismiss the appeal.

Appeal allowed; conviction quashed.

Solicitor for the appellant: F.L. O’Donnell.

Solicitor for the respondent: C.P. Hope.