R. v. Modest s/o Bishungwe, Crim. Rev. 26-M-68, 19/7/68, Seaton J.

R. v. Modest s/o Bishungwe, Crim. Rev. 26-M-68, 19/7/68, Seaton J.

Complainant is a school-girl between the ages of 10 and 12 years. The two accused, her brother and the man who sought to marry complainant were convicted of abduction. (P.C. s. 133) Second accused had paid bridewealth to the father of complainant, for an elder sister of complainant. Meanwhile, however, the elder sister had married someone else; after consultation with village elders, it was decided that second accused should marry complainant, whereupon a marriage ceremony was performed. She lived with second accused for a short time, though the marriage was never consummated. Complainant objected to the marriage. Her brother rather than her father, who was “somewhat mentally defective,” arranged the compromise of having second accused marry his sister, which accounts for his presence as an accused party. Section 133 makes it an offence to abduct for the purpose of marrying, a “woman of any age.”

            Held: (1) The only question was whether a girl is generally taken to be “something between a child and a woman (Citing The Queen v. Prince (1875) L.R. 2 C. C. R. 154). The Legislature distinguished between a woman and a girl under the age of 16 years. “It is an established rule in the interpretation of statutes that, when construing the terms of any particular provision, every clause should be construed with reference to the context and the other claused of the Act, so as, …. To make a consistent enactment of the whole statute or series of statutes relating to the subject matter.” (Citing Canada Sugar Refining Co. v. R., (1898) A.C. 735 and particularly per Lord Davey at page 741). This can only be done be limiting the term “woman” to human females aged 16 or over. (2)When the Legislature intended to create an offence where the victim was a human female n any of the stages of development or categories of age groups, it used the phrase “female person.” (P.C. s. 158, incest by females). (3) The rationale for distinguishing between females of 16 or more and those of lesser years is that on the question of consent to marriage those in the older group are deemed legally capable of consenting to marriage, whereas those under 16 are not legally competent to do so. As complainant was not a “woman of any age” the conviction were quashed.