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•
 BRIEF CONTENTS

PREFACE FOR STUDENTS ............................................................................................................. xiii

PREFACE FOR INSTRUCTORS ........................................................................................................ 'XV

ACKNOWLEDGEMENTS .............................................................................................................. xviii

CHAPTER 1 Introduction to Canadian Criminal Law ...................................................... 1

CHAPTER2 The Actus Reus Elements of a Criminal Offence .................................... 22

CHAPTER3 Causation in the Criminal Law......................................................................51

CHAPTER4 The Mental Element in the Criminal Law: Subjective Liability.......... 75

CHAPTERS The Mental Element in the Criminal Law: Objective Liability ........ 111

CHAPTER6 The Special Case of Regulatory Offences: Strict and Absolute

Liability in Canada ........................................................................................ 138

CHAPTER? Modes of Participation in Crime and Inchoate Offences ................. 160

CHAPTERS Mental Impairment and Criminal Responsibility:

The Defences of "Not Criminally Responsible on Account
of Mental Disorder" (NCRMD) and Automatism ............................... 201

CHAPTER 9 Mistake of Fact, Consent, and Mistake of Law as Defences

to a Criminal Charge ..................................................................................... 235

CHAPTER 10 Provocation and Intoxication: Partial Defences to

a Criminal Charge .......................................................................................... 271

CHAPTER 11 Necessity and Duress: Two Excuses Recognized

by the Courts as Defences to a Criminal Charge................................. 301

CHAPTER 12 Self-Defence and Defence of Property .................................................. 323

APPENDIX A Brief Note on the Canadian Criminal Court System ...................... 349

GLOSSARY .............................................................................................................................. 3!)1

INDEX OF CASES .............................................................................................................................. 364

INDEX .............................................................................................................................. 370

••
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 CONTENTS
•••
PREFACE FOR STUDENTS XIII
PREFACE FOR INSTRUCTORS xv
•••
ACKNOWLEDGEMENTS XVIII
CHAPTER 1
Introduction to Canadian Criminal Law
WHAT IS CRIMINAL LAW? 2
The Definition of Crime in Canada 2
True Crimes and Regulatory Offences 3
CRIMINAL LAW AS A FORM OF
PUBLICLAW 5
THESOURCESOFCRIMINALLAW
INCANADA 5
Federal Legislation 5
Quasi -Criminal Law: Regulatory Offences
and the Constitution 7
Problems of Jurisdiction in the Enactment
of Legislation 8
Judicial Decisions as a Source of Criminal Law 11
THE IMPACT OF THE CANADIAN
CHARTER OF RIGHTS AND FREEDOMS
ON THE CRIMINAL LAW IN CANADA 11
CHAPTER2
The Actus Reus Elements of a Criminal
Offence 22
INTRODUCTION 23
THE ACTUS REUS AS A COMBINATION
OF CONDUCT, CIRCUMSTANCES,
AND CONSEQUENCES 24
EXCEPTIONS TO THE GENERAL
RULE REQUIRING CONDUCT,
CIRCUMSTANCES, AND
CONSEQUENCES 27
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Offences Where Consequences Are Not a
Required Element of the Actus Reus 2 7
Offences Where Conduct Is Not a Required
Element of the Actus Reus 2 8
CAN A FAILURE TO ACT CONSTITUTE A
CRIMINAL OFFENCE? 35
The General Principle: No Liability for
1
Omissions Unless There Is a Preexisting
Duty to Act 35
Voluntarily Assuming a Legal Duty under
Section 217 of the Criminal Code 36
SPECIFIC LEGAL DUTIES IMPOSED BY
THE CRIMINAL CODE 36
The Duty to Provide the Necessaries of Life to
Dependent Persons 37
Criminal Negligence, Manslaughter, and Failure
to Act 40
Is There a Duty to Act When a Person
Creates a Dangerous Situation by
Accident? 40
Should There Be a Duty to Rescue? 41
When a Failure to Act May Render an Accused
Person Liable as a Party to an Offence
Committed by Another Person 42
The Need for the Actus Reus and Mens Rea to
Coincide 43
The Element ofVoluntariness in the
Actus Reus 48
CHAPTER3
Causation in the Criminal Law 51
CAUSATION IN CRIMINAL LAW 52
Specific Rules Concerning Causation in
Homicide Cases 55
•
IX
x CONTENTS
CHAPTER4
The Mental Element in the Criminal Law:
Subjective Liability 75
MENS REA: AN INTRODUCTION 77
SUBJECTIVE AND OBJECTIVE MENS REA 78
Particular Forms of Subjective Mens Rea SO
The Concepts of Intention and Knowledge 80
Special Mental Elements That Must Be Proved in
Addition to Intention and Knowledge 81
The Distinction between Direct and
Indirect Intention 90
Intention and Motive Distinguished 91
The Concept of Transferred Intent 94
RECKLESSNESS AS A FORM OF
SUBJECTIVE MENS REA 96
Definition of Recklessness 96
Examples of Criminal Code Offences Requiring
Proof of Recklessness 98
WILFUL BLINDNESS AS A FORM OF
SUBJECTIVE MENS REA 100
Examples of Wilful Blindness 101
SUBJECTIVE MENS REA AS A CHARTER
REQUIREMENT: THE CASE OF
MURDER 105
Impact of the Charter on
the Doctrine of Mens Rea 105
The Charter Requirement of Subjective Mens Rea
and Section 229(c) of the Criminal Code 106
CHAPTERS
The Mental Element in the Criminal Law:
Objective Liability 111
WHAT IS OBJECTIVE LIABILITY? 113
OFFENCES IMPOSING OBJECTIVE
LIABILITY 116
Driving Offences and Objective Liability 116
Dangerous Driving and Criminal Negligence 12 2
Unlawful Act Manslaughter 123
The Offences of Unlawfully Causing Bodily Hann
and Assault Causing Bodily Harm 126
The Offence of Aggravated Assault 127
Offences Involving Criminal Negligence 127
CAUSING DEATH BY CRIMINAL
NEGLIGENCE AND MANSLAUGHTER
BY CRIMINAL NEGLIGENCE:
IDENTICAL TWINS 129
INFANTICIDE 129
CRIMINAL CODE SECTIONS IMPOSING A
SPECIAL STANDARD OF CARE 131
1. Reasonable Medical Treatment-
Section 216 131
2. The Duty to Take Reasonable Care in the
Handling of Explosives and Fireanns,-
Sections 79 and 86(1) 13 2
CHAPTER6
The Special Case of Regulatory Offences:
Strict and Absolute Liability in Canada 138
INTRODUCTION 139
REGULATORY OFFENCES AND ABSOLUTE
LIABILITY 140
THE ARGUMENTS FOR AND AGAINST
ABSOLUTE LIABILITY 141
THE EMERGENCE OF A NEW APPROACH
IN THE COURTS: THE "HALFWAY
HOUSE" APPROACH 142
The Supreme Court Endorses the "Halfway
House" Approach: The Sault Ste. Marie
Case (1978) 143
The Three Categories of Offences Since
the Sault Ste. Marie Case (1978) 143
The Facts in the Sault Ste. Marie Case
(1978) 145
THE CLASSIFICATION OF REGULATORY
OFFENCES: STRICT OR ABSOLUTE
LIABILITY? 145
1. The Importance of Examining the Overall
Regulatory Pattern in a Statute 146
2. The Importance of Examining the Subject
Matter of the Regulatory Offence 146
3. The Importance of the Penalty in Detennining
Whether a Regulatory Offence Imposes Strict or
Absolute Liability 147
4. The Importance of Examining the Precise
Wording of Regulatory Legislation 149
STRICT LIABILITY OFFENCES AND
RAISING THE DEFENCE OF DUE
DILIGENCE 150
IS STRICT LIABILITY A VALID DEVICE
UNDER THE CHARTER? 152
THE CHARTER AND ABSOLUTE LIABILITY
OFFENCES 154
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 •
CONTENTS XI

CHAPTER 7 THE DISPOSITION OF NCRMD ACCUSED

Modes of Participation in Crime PERSONS 215
and Inchoate Offences 160 Proposed Changes to the Disposition of NCR
Accused Persons 21 7
INTRODUCTION 162
Mental Disorder as a Partial Defence 218
THE VARIOUS MODES OF PARTICIPATION
AUTOMATISM 221
IN A CRIMINAL OFFENCE 162
Definition of Automatism 221
Actually Committing an Offence 162
Automatism Caused by Such "Normal" States as
Aiding and Abetting the Commission of an
Sleepwalking 222
Offence 163
Automatism Triggered by an External
Becoming a Party to an Offence
Trauma 223
by Virtue of Common Intention 173
Automatism Involuntarily Induced by Alcohol or
COUNSELLING AN OFFENCE THAT IS
Other Drugs 22 3
ACTUALLYCO ED 176
Automatism Voluntarily Self-Induced by Alcohol
Liability as an Accessory after the Fact 178
or Other Drugs 224
The Impact of Section 23.1 of the Criminal Code 179
Automatism Distinguished from Amnesia 226
INCHOATE OFFENCES 180
Automatism Caused by a Mental Disorder 226
1. Counselling an Offence That Is Not
The Definition of Mental Disorder: Problems of
Committed 180
Judicial Interpretation 227
2. Attempt 182
Psychological Blow Automatism 228
3. Conspiracy 190
Automatism and the Persuasional Burden of
Proof 230
CHAPTERS
Automatism and the Evidential (or Evidentiary)
Mental Impairment and Criminal Responsibility:
Burden 231
The Defences of "Not Criminally Responsible on
Account of Mental Disorder" (NCRMD)
and Automatism 201 CHAPTER 9
Mistake of Fact, Consent, and Mistake of Law as
INTRODUCTION 203 Defences to a Criminal Charge 235
THE ISSUE OF FITNESS TO STAND
INTRODUCTION 236
TRIAL 203
MISTAKE OF FACT 236
THE DEFENCE OF NOT CRIMINALLY
RESPONSIBLE ON ACCOUNT OF Mistake of Fact: The General Nature of the
MENTAL DISORDER 204 Defence 236
The M'Naghten Rules 205 Must a Mistake of Fact Be Both Honest and
Reasonable? 2 37
The Modem NCRMD Defence in Canada 205
Exceptions to the General Rule That a Mistake of
The Capacity of the Accused Person to Appreciate
Fact Does Not Have to Be Reasonable in Order
the Nature and Quality of the Act or
to Excuse the Accused Person from Criminal
Omission 208
Liability 239
The Capacity of the Accused Person to Appreciate
Intoxication and the Defence of Honest Mistake
That the Act or Omission Was Wrong 210
ofFact 245
The Problem ofirresistible Impulse 212
When Can the Defence of Mistake of Fact Be
MISCELLANEOUS PROCEDURAL Considered by the Trier of Fact? 245
ISSUES 213
How "Honest" Must a Mistake of Fact Be? 247
The Power of the Crown to Raise the Mental
CONSENT 249
Disorder Defence 213
The General Principles 249
The Burden and Standard ofProofWhen the
Defence ofNCRMD Is Raised 214 Consent and Assault under Section 265 249

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xii CONTENTS
Special Provisions Relating to the Defence of Consent
in Relation to a Charge of Sexual Assault 254
Can An Individual Consent to the Infliction of
Bodily Harrn? 255
Consent to the Infliction of Bodily Harm in
the Context of Sporting Activity 259
MISTAKEOFLAW 261
The General Principle: Mistake of Law Is Not a
Defence 261
The Evolution of a New Defence or "Excuse":
Officially Induced Error 263
Mistake of Law and "Colour of Right" 266
CHAPTER 10
Provocation and Intoxication: Partial Defences
to a Criminal Charge 271
PROVOCATION AND INTOXICATION 273
PROVOCATION 273
The General Nature of the Defence and
Section 232 273
Requirement 1: A Wrongful Act or Insult That
Would Have Caused an Ordinary Person to Be
Deprived of His or Her Self-Control 274
Requirement 2: A Wrongful Act or Insult That
Was Sudden and Unexpected 278
Requirement 3: A Wrongful Act or Insult That in
Fact Caused the Accused to Act in Anger 27 8
Requirement 4: The Accused Acted before Having
Recovered His or Her Nonnal Control 279
"Legal Right" in Section 232(3) 280
The Differing Roles of Judge and Jury in Canada
when Provocation Is Raised 2 81
INTOXICATION 282
Historical Overview of the Defence 2 82
The Evolution of the Beard Rules: 1920 to the
Present 283
Applying the Second and Third Beard Rules: The
Critical Distinction between Crimes of Specific
and General (Basic) Intent 287
Applying the Second Beard Rule to Crimes of
Specific Intent 291
Applying the Third Beard Rule 293
The Decision of the Supreme Court of Canada in
the Daviault Case (1994) 294
The Enactment of Section 33.1 of the Criminal
Code and Its Aftermath 296
CHAPTER 11
Necessity and Duress: Two Excuses Recognized
by the Courts as Defences to a Criminal
Charge 301
THE DEFENCE OF NECESSfi'Y 303
The General Principles 303
The Rationale for the Defence of Necessity 303
Applying the Defence of Necessity in Relation to
Less Serious Criminal Offences 303
Applying the Defence of Necessity in Relation to
More Serious Criminal Offences 304
The Perka Case: The Foundation of the Modern
Canadian Defence of Necessity 304
The Case of Robert Latimer 306
THE DEFENCE OF DURESS 308
The Rationale for the Defence 308
Section 17 and the Statutory Defence of
Duress 309
The Common Law Defence of Duress 312
CHAPTER 12
Self-Defence and Defence of Property 323
SELF-DEFENCE AND DEFENCE OF
PROPERTY 325
The New Criminal Code Provisions Concerning
Self-Defence 325
What Are the Essential Requirements for a
Successful Defence of Self-Defence under
Section 34 of the Criminal Code? 325
The New Criminal Code Provisions Concerning
Defence of Property 342
What Are the Essential Requirements for a
Successful Claim of Defence of Property under
Section 35 of the Criminal Code? 343
APPENDIX
A Brief Note on the Canadian Criminal Court
System 349
GLOSSARY 351
INDEX OF CASES 364
INDEX 370
NEL
 PREFACE FOR STUDENTS
For many people, the prospect of studying a legal
textbook may be somewhat daunting. Practitioners
of the law tend to employ a dense and opaque fonn
of technical language that is alien to those who have
not been the beneficiaries of a law school education
and on -the-job training in law offices and the courts.
However, Criminal Law in Canada: Cases, Questions,
and the Code is designed to be user-friendly to readers
who require a broad and reasonably detailed under-
standing of the criminal law but do not intend to join
the legal profession in the near future.
To make the study of criminal law as user-friendly
as possible, this textbook makes considerable use of the
case method of studying law. In other words, it seeks
to discuss the general principles underlying Canadian
criminal law in the context of specific cases decided by
the courts. Each chapter contains not only a statement
of the relevant principles of law but also a discussion
of the facts of decided cases and numerous extracts
from the judgments of the courts. This case-oriented
approach is intended to equip the reader to apply the
general principles of Canadian criminal law to the kinds
of concrete factual situations he or she may encounter
in everyday life or read/hear about in the media or
on the Internet. The quotations from the judgments
delivered in decided cases should provide some degree
of insight into the legal method of analysis judges use
to deal with the hannful or potentially harmful events
that occur in real life and represent an infringement of
Canadians' fundamental values.
Provided the reader progresses step by step
through the book, there should be no difficulty
in understanding the basic concepts that underlie
Canadian criminal law. It is hoped that each chapter
of the book will gradually increase the reader's knowl-
edge of the basic principles of Canadian criminal law
so that, by the end of the book, all the "pieces of the
puzzle" will fit neatly together in the reader's mind.
Provided the reader is patient and thorough, the
study of criminal law should prove to be a rewarding
challenge that need arouse none of the fears so fre-
quently associated with it.
Associated with the case method is the inclusion
in the textbook of a series of problems, or "Study
NE L
Questions," that appear at the end of each chapter.
Most of these problems are based on relatively uncom-
plicated fact patterns and are designed to prompt the
reader to devise legal solutions by applying the legal
principles discussed in the preceding chapter. These
problems may well serve as the basis for classroom
debate or for discussion within less formal student
study groups. By working through the study ques-
tions in each chapter, the reader should not only
acquire a more comprehensive understanding of
criminal law but also find it easier to remember the
information learned. When the problems are dis-
cussed in the classroom or in groups, the experience
should also prove to be enjoyable and stimulating.
Over and above the use of the case method, some
noteworthy features of this textbook should advance
the objective of making the learning experience
both agreeable and informative. There are 48 dia-
grams designed to assist the reader's comprehen-
sion of legal principles and rules and assist in the
preparation for examinations, quizzes, and tests.
Furthennore, in each chapter, there is a "box" that is
intended to provide an in-depth focus on a specific
case or issue raised in the chapter. Each box includes
some links to websites and further reading that will
enable the reader to explore current views on critical
issues in criminal law. Finally, each chapter contains
eye-catching illustrations drawn by Greg Holoboff.
These illustrations, coupled with their respective
captions, provide a valuable and memorable insight
into the most important legal principles discussed in
the textbook.
An extensive glossary will also facilitate the read-
er's understanding of the most important of the tech-
nical tenns used in the textbook. It is always a good
idea to consult the glossary if the reader is seeking
a brief definition or explanation of what might, on
first acquaintance, appear to be a complex and inde-
cipherable concept. Furthennore, the appendix pro-
vides a very brief overview of the system of criminal
courts in Canada. The infonnation in the appendix
may help the reader comprehend the various steps
that a case may take from trial through to a final
appeal.
•••
XIII
xiv PREFACE FOR STU DENTS
Finally, readers are strongly urged to supple-
ment their study of this book with an in-depth
exploration of some of the leading criminal cases
that have been decided by Canadian courts. A
closer study of some of the critical cases that have
helped shape the contemporary body of Canadian
criminal law will certainly add new and valu-
able dimensions to the task of understanding the
vital issues that confront Canadian courts on an
ongoing basis. To this end, readers might wish to
consider obtaining the companion volume to this
book, Simon Verdun-Janes, Canadian Criminal
Cases: Selected Highlights, Third Edition (2 0 12).
This casebook contains 44 key decisions of the
Supreme Court of Canada in the field of criminal
law. These cases have been extensively edited so
the reader will be able to grasp the essential ele-
ments of each of the Supreme Court's judgments
within just a few pages of text.
STUDENT ANCIL..a..J.I..
Access chapter-specific interactive learning tools,
study questions, further readings, and multiple-
choice questions in the Companion Website for
Criminal Law in Canada, Sixth Edition. Visit http:/I
www.nelson.com/site/crimlawincanada6e and
access it today.
NEL
 PREFACE FOR INSTRUCTORS
The six editions of this book have all been infonned by
the author's lengthy experience with the challenging
task of teaching criminal law to students who, for the
most part, do not intend to enter the legal profession.
This book was designed to meet the very specific needs
of these particular students. Law school textbooks
are not appropriate because the depth of their cov-
erage goes far beyond the needs of such students, who
would also tend to perceive them as somewhat "dry."
Paradoxically, other criminal law textbooks in Canada,
although they were specifically written for non-lawyers,
are far too general in their approach and do not pro-
vide sufficiently detailed infonnation about the law for
these students. Indeed, many of these students will be
required to acquire a broad and reasonably sophisti-
cated understanding of criminal law in order to carry
out their future duties in various professions related
to the criminal justice system (probation, police, and
parole officers, court workers, forensic mental health
professionals, etc.) and related systems (such as social
work and mental health). The prime objective of the
first edition of Criminal Law in Canada: Cases, Questions,
and the Code was to meet the requirements of these stu-
dents, and this objective has remained constant right up
to the current, sixth, edition.
One of the most effective methods of teaching
criminal law to criminology, criminal justice, or law
and security students is the case-oriented approach, in
which the student is encouraged to study not only the
general principles of criminal law but also the spe-
cific details of decided cases. By combining the study
of general principles with a close analysis of specific
cases, students learn to apply these principles of crim-
inal law to concrete, factual situations that arise in
everyday life or to situations that they may encounter
in their professional lives. This book unequivocally
adopts the case-oriented approach to the study of
criminal law. Individual decided cases are discussed
in considerable detail and there are numerous extracts
from the opinions of judges. It is hoped that this
approach will more adequately meet the needs of stu-
dents who seek to acquire a working knowledge of
Canadian criminal law and render the study of law
somewhat more palatable. Indeed, reading real-life
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"stories" should be an inherently appealing task for
those students who are seeking employment in the
criminal justice system or in closely related areas,
such as mental health and social work.
As part of the case-oriented approach, a number of
study questions have been included at the end of each
chapter. These are specifically designed to encourage
students to test the extent to which they have absorbed
the major principles of law covered in each substan-
tive chapter. However, it is important to recognize that
the questions are not intended to be particularly com-
plex or difficult; if they were, they would not serve the
function of pennitting the average student to test his or
her understanding of the major principles covered in
the chapter. In the author's experience, answering the
study questions is a necessary first step in the student's
assimilation of the principles of criminal law and should
be followed by more complex problem-solving exer-
cises that draw together a number of different topics
and encourage the student to see the criminal law as a
whole rather than as a series of separate compartments.
It usually takes a few weeks before students are ready to
tackle these more complex exercises; instructors might
wish to delay their use until students have completed at
least the first three chapters of the book.
NEW TO THIS EDITION
The sixth edition of Criminal Law in Canada contains
some radical changes to the underlying pedagogy.
Most significantly, 48 diagrams have been inserted
into the text to facilitate student comprehension and
learning, in line with the ever-increasing emphasis
on the use of visual images in the classroom. In addi-
tion, each chapter includes a box that focuses on the
issues raised by a particular case or a specific topic
that will stimulate discussion. Each box includes
links to contemporary media coverage of the issue(s)
raised therein so that students may become more
actively engaged in the learning process.
The most dramatic change in the substantive con-
tent in the sixth edition is the complete reworking of
Chapter 12, which covers self-defence and defence of
property. In 2012, the Parliament of Canada enacted
XV
xvi PREFACE FOR I NSTRUCTORS
sweeping reforms to the relevant provisions of the
Criminal Code (sections 34 and 35). These reforms
have, mercifully, dismantled the excessively complex
and contradictory tangle of provisions that had been in
force for many years and replaced them with relatively
straightforward rules that turn on the reasonableness
of the accused person's conduct. Chapter 12 indicates
how the extensive body of case law that addressed
self-defence and defence of property under the "old"
Criminal Code provisions may be used by the courts to
interpret and apply the "new" sections 34 and 35.
In the sixth edition, a conscious attempt has been
made to incorporate recent case law wherever pos-
sible, and in particular to encompass the contempo-
rary decisions of the Supreme Court of Canada that
have played a rnajor role in shaping the ever-evolving
fabric of the criminal law. Among the most notable
of the recent Supreme Court decisions highlighted
in this edition are:
• PHS Community Services Society v. Canada (Attorney
General) (2011), which affirmed the right of the
safe injection site in Vancouver, Insite, to receive
an exemption from the operation of the criminal
provisions of the Controlled Drugs and Substances Act;
• Saskatchewan (Human Rights Commission) v. Whatcott
(2013), which demonstrates the ability of the courts
to remove, or "sever," words from a statute in order
to avoid declaring it unconstitutional;
• Boudreault (2012), which redefined the meaning of
having "care or control" of a motor vehicle while
impaired or being "above 80";
• Briscoe (2010), in which the Court reviewed the
concept of wilful blindness, reshaped it as "delib-
erate ignorance," and applied it in the context of
the mens rea necessary for conviction as a party
to an offence on the basis of aiding/abetting the
principal offender;
• Roy (2012), which reexamined the nature of
the modified objective test that is applied to the
offence of dangerous operation of a motor vehicle
and emphasized the need to prove the necessary
mens rea so as not to convict an individual who was
simply careless;
• Pickton (2010), which reaffinned the principle that
the Crown does not have to prove the precise role
played by the accused person when an individual
has been charged with being a party to an offence
by virtue of section 21 (1) of the Criminal Code;
• Gauthier (20 13), which changed the criteria for
raising a successful defence of abandonment of
common intention under sections 21 (1) and 21 (2)
of the Criminal Code;
• F. (J.) (2013), in which the Supreme Court con-
firmed the view that the aiding and abetting of a
conspiracy is an offence known to Canadian law;
• Bouchard-LeBrun (2011), in which the Court ruled
that the NCRMD (not criminally responsible on
account of mental disorder) defence will not be
available to an accused person who experiences
only a transitory psychosis as a direct consequence
of involuntarily ingesting drugs, and in which the
Court demonstrated the sweeping impact of sec-
tion 33 .1 of the Criminal Code on cases involving
drug-induced psychoses;
• Mayuran (20 12), which restated the parameters
of the evidential burden with respect to raising
defences to a criminal charge;
• A. (J.) (2011), in which the Supreme Court
rejected the possibility of giving advanced consent
to sexual activity, requiring active consciousness
as a prerequisite for a valid consent;
• Mabior (2012), which requires an HIV-positive
person to establish a low viral load as well as use
of a condom in order to avoid conviction of aggra-
vated sexual assault, where disclosure of his or her
HIV status has not been made to their partner and
where non -disclosure would have resulted in the
withholding of consent;
• Tran (2010), in which the Supreme Court reintro-
duced some objective elements into the "ordinary
person" test at the centre of the statutory defence
of provocation; and, finally,
• the extraordinary case of Ryan (2013), which
restated the basic requirements of the defence of
duress and rejected its use in cases of domestic vio-
lence where the accused person does not commit
a crime under the direction and threats of their
alleged abuser.
The sixth edition contains an extensive glos-
sary, which students should be encouraged to con-
sult because it frequently provides answers to the
most basic questions they may have following their
first acquaintance with new and sometimes chal-
lenging material. It is strongly recommended that
students also read some of the most significant cases
discussed in this book. Ideally, they should read at
least one or two cases in their original form (perhaps
through the Canadian Legal Infonnation Institute's
website, Canlii.org). However, as beginning stu-
dents of the criminal law, they may find it much
NEL

easier to read highly condensed versions of a range
of Supreme Court of Canada decisions. To this end,
it is hoped that students will be advised to read the
companion volume to this textbook, Simon Verdun-
Jones, Canadian Criminal Cases: Selected Highlights,
Third Edition (2012).
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PREFACE FOR INSTRUCTORS XVII
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dents face and how to address them. Other features
include key ideas or concepts that students should
grasp, common misconceptions or difficult topics
to help instructors address them through lectures,
out-of-class work, or in -class activities, instruction
on how to engage students, and activities to connect
and bridge concepts, reveal misconceptions, and fur-
ther understanding of key concepts.
STUDENT ANCILLARIES
Nelson Education's Companion Website for
Criminal Law in Canada, Sixth Edition, brings course
concepts to life with interactive learning and exam
preparation tools that integrate with the printed
textbook. Students activate their knowledge through
quizzes, games, and flashcards, among many other
tools.
The Companion Website provides immediate
feedback that enables students to connect results to
the work they have just produced, increasing their
learning efficiency. Watch student comprehension
and engagement soar as your class engages with the
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sentative for a demo today.
 ACKNO LEDGEMENTS
The various editions of this textbook have been won-
derfully informed by the numerous generations of
excellent students with whom I have had the privi-
lege of exploring criminal law. Their enthusiasm and
support have encouraged me to continue writing
for them and their constructive criticism has greatly
assisted me in the preparation of the successive edi-
tions of the textbook. In addition, I owe a deep debt
of gratitude to my colleagues, both faculty members
and graduate students, at the School of Criminology
who have contributed directly or indirectly to so many
aspects of the sixth edition. In particular, I would like
to thank Neil Boyd, Johann Brink, Amanda Butler,
Lauren Freedman, Lindsay Hanright, Michelle
Lawrence, Jamie Livingston, Patrick Lussier, Alicia
Nijdam-Jones, Adrienne Peters, David MacAlister,
Tamara O'Doherty, Katherine Rossiter, and John
Whatley. I also wish to acknowledge the tremen-
dous administrative support that we all receive from
Roxanne Jantzi.
A very special vote of thanks is due to Greg
Holoboff, who has provided the outstanding illus-
trations for this textbook. Greg's unerring ability to
•••
XVIII
encapsulate key legal principles in the fonn of visual
images that tell a clear story is quite remarkable.
Last, but by no means least in order of impor-
tance, there are many individuals associated with
the production of this textbook who deserve to
be heartily commended for their excellent con-
tributions. It has always been a great pleasure to
work with the highly professional team at Nelson
Education. Particular recognition is due to Lenore
Taylor-Atkins and Maya Castle, executive editors,
who have provided ongoing support for this project.
Pivotal to the development of the sixth edition has
been the sustained patience and encouragement that
have been the hallmarks of the excellent assistance
and expertise provided by Rebecca Ryoji, freelance
developmental editor. Also playing a major role in
the production of the textbook and deserving par-
ticular recognition are Indu Arora, freelance permis-
sions researcher; Hedy Sellers, Nelson production
project manager; Devanand Srinivasan, project man-
ager, Cenveo Publisher Services; Sheila Wawanash,
freelance copy editor; and Debbie Yea, permissions
•
proJect manager .
NEL
 OVERVIE
This chapter examines the following:

1. the definition of a crime in Canada;

2. the classification of crimes in Canada into three categories: indictable, summary con-
viction, or "hybrid" (dual) offences;
3. the difference between "true crimes" and "regulatory offences";
4. the distinction between private law and public law;
5. the categorization of criminal law as a fonn of public law;
6. the sources of criminal law: legislation and judicial decisions;
7. the exclusive authority of Parliament to enact legislation concerning "criminal law
and the procedures relating to criminal matters";
8. the major criminal law statutes: the Criminal Code, the Controlled Drugs and Substances
Act, and the Youth Criminal Justice Act;
9. the nature and scope of the federal criminal law power;
10. the nature of quasi-criminallaw (regulatory offences) and the ability of provinces/ter-
ritories to enforce their regulatory legislation by means of penalties;
11. the invalidity of provincial/territorial legislation that impinges on Parliament's exclu-
sive jurisdiction to enact criminal law;
12. the extent to which judicial decisions constitute a source of criminal law;
13. the impact of the Canadian Charter ofRights and Freedoms on the field of criminal law;
14. the circumstances in which the courts may strike down legislation as being invalid
under the Charter;
15. the importance of section 1 of the Charter as a means of justifying an infringement
of a Charter right or freedom as being a "reasonable limit in a free and democratic
society";
16. the so-called Oakes test devised by the Supreme Court of Canada as a means of giving
guidance to the courts when they are called upon, under section 1 of the Charter, to
balance the rights of the individual against those of society as a whole; and
17. the extent to which the courts consider striking down legislation to be a measure of
last resort in their application of section 1 of the Charter.

NE L 1
2 CRI Ml NAL LAW IN CANADA
WHAT IS CRIMINAL LAW?
'IHE DEFINITION OF CRIME IN CANADA
Before embarking on an analysis of criminal law, it
is necessary to define the legal concept of a crime
and to explain how crimes are classified within the
Canadian criminal justice system. It is essential to
recognize the importance of legal definitions and
categories because they have enormously practical
consequences. For example, the legal definition of a
crime is a matter of critical significance because only
the Parliament of Canada has the jurisdiction under
the Constitution Act, 1867 to enact criminal law and
thereby create crimes; this jurisdiction is known
as the federal criminal law power. Similarly, the
manner in which individual crimes are categorized
determines how they are tried and the penalties that
may be imposed on conviction.
In Canada, a crime consists of two major elements:
1. conduct that is prohibited because it is consid-
ered to have an "evil or injurious or undesirable
effect upon the public," 1 and
2. a penalty that may be imposed when the prohibi-
tion is violated.
The conduct that is prohibited may include not
only actions but also a failure to act when there is a
legally imposed duty to take action. The penalty may
range from a fine to a sentence of imprisonment.
In Canada, crimes are classified into three catego-
ries, as illustrated in Figure 1.1.
Summary conviction offences may be tried only
before a provincial/territorial court judge or justice of
the peace sitting alone, and the maximum penalty is
nonnally a fine of $5000 or a sentence of six months
in prison or both. "Summary" refers to the fact that
these offences are tried rapidly within the provincial/
territorial court and without any complex proce-
dures. Examples of summary conviction offences are
carrying a weapon while attending a public meeting;
obtaining food, a beverage or accommodation by
fraud; wilfully doing an indecent act in public; being
nude in a public place without lawful excuse; causing
a disturbance in a public place; soliciting in a public
place; and taking a motor vehicle without consent
("joyriding").
1 The phrase "evil or injurious or undesirable effect upon the public"
was coined by Justice Rand in the Margarine Reference case (1949),
which is discussed later in this chapter.
• Summary conviction offences;
• Indictable offences; and
• Hybrid (or dual) offences.
• At the discretion of the Crown
prosecutor, these offences may be
tried either by indictment or by
summary conviction procedures.
Figure 1-1
The Three Categories of Crimes in Canada
Indictable offences are more serious in nature
and are punishable by more severe sentences (in
some cases, life imprisonment). The indictment
is the formal document that sets out the charge(s)
against the accused person and is signed by the
attorney general or his or her agent. Unlike sum-
mary conviction offences, indictable offences
may be tried by more than one court procedure,
depending on the seriousness of the offence con-
cerned. Some serious indictable offences, such as
murder, may be tried only by a superior court judge
sitting with a jury, while some less serious indict-
able offences may be tried only by a provincial/
terri torial court judge without a jury. However,
in most cases, a person charged with an indictable
offence may elect to be tried by a provincial/ter-
ritorial court judge, a superior court judge sitting
alone, or a superior court judge sitting with a jury.
There are, therefore, three categories of indictable
offences, as seen in Figure 1.2.
In most cases, individuals charged with an indict-
able offence have the right to a preliminary inquiry
before a provincial/territorial court judge, who will
decide whether there is "sufficient evidence" to put
the accused person on trial. Examples of indictable
offences are murder, manslaughter, sexual assault
with a weapon, aggravated sexual assault, robbery,
theft over $5000, and breaking and entering.
Most offences in Canada's Criminal Code are
hybrid (or dual) offences. There are very few
Criminal Code offences that may be tried only by sum-
mary conviction procedures; however, it is significant
that most hybrid (or dual) offences are, in practice,
tried by summary conviction procedures. Examples
of hybrid (or dual) offences are assault, assaulting a
peace officer, sexual assault, unlawful imprisonment,
NEL
 CHAPTER 1: INTRODUCTION TO CANADIAN CR IM INAL LAW
• Offences over which a provincial
court judge has absolute jurisdiction;
• Offences that are triable only by a
superior court of criminal jurisdiction;
and
• Offences for which an accused may
choose ("elect") the method by which
he or she will be tried.
Figure 1-2
The Three Categories ofIndictable Offences
theft under $5000, fraud not exceeding $5000, and
failing to comply with a probation order.
TRUE CRIMES AND REGULATORY
OFFENCES
A noteworthy distinction that must be drawn before
one embarks on a study of criminal law is the distinc-
tion between true crimes and regulatory offences.
The courts treat these two types of offence in a sig-
nificantly different manner and the consequences for
a person convicted of one of the two types of offence
differ significantly in terms of the severity of the pen-
alties that may be imposed and the degree of stigma
associated with a finding of guilt. Justice Cory of the
Supreme Court articulated the nature of the distinc-
tion between true crimes and regulatory offences in
his judgment in Wholesale Travel Group Inc. (1991):
Acts or actions are criminal when they constitute
conduct that is, in itself, so abhorrent to the basic
values of society that it ought to be prohibited com-
pletely. Murder, sexual assault, fraud, robbery and
theft are all so repugnant to society that they are
universally recognized as crimes. At the same time,
some conduct is prohibited, not because it is inher-
ently wrongful, but because unregulated activity
would result in dangerous conditions being imposed
upon members of society, especially those who are
particularly vulnerable.
The objective of regulatory legislation is to pro-
tect the public or broad segments of the public (such
as employees, consumers and motorists, to name but
a few) from the potentially adverse effects of other-
wise lawful activity. Regulatory legislation involves a
shift of emphasis from the protection of individual
interests and the deterrence and punishment of acts
involving moral fault to the protection of public and
NE L
3
societal interests. While criminal offences are usu-
ally designed to condemn and punish past, inherently
wrongful conduct, regulatory measures are generally
directed to the prevention of future harm through
the enforcement of minimum standards of conduct
and care.
Regulatory offences arise under both federal and
provincial/territorial legislation and deal with such
diverse matters as the maintenance of the quality of
meat sold to the public, the regulation of the pack-
aging of food products, the establishment of rigorous
standards concerning the weights and measures used
by retailers, the regulation and control of pollution,
the control of misleading advertising, and the estab-
lishment and maintenance of a regime of traffic reg-
ulation. Indeed, as Justice Cory stated in Wholesale
Travel Group Inc., "Regulatory measures are the
primary mechanisms employed by governments in
Canada to implement public policy objectives," and
"it is through regulatory legislation that the com-
munity seeks to implement its larger objectives and
to govern itself and the conduct of its members." He
went on to say that:
It is difficult to think of an aspect of our lives that
is not regulated for our benefit and for the protec-
tion of society as a whole. From cradle to grave, we
are protected by regulations; they apply to the doc-
tors attending our entry into this world and to the
morticians present at our departure. Every day, from
waking to sleeping, we profit from regulatory mea-
sures which we often take for granted. On rising,
we use various forms of energy whose safe distribu-
tion and use are governed by regulation. The trains,
buses and other vehicles that get us to work are
regulated for our safety. The food we eat and the
beverages we drink are subject to regulation for the
protection of our health.
In short, regulation is absolutely essential for
our protection and well being as individuals, and for
the effective functioning of society. It is properly
present throughout our lives. The more complex the
activity, the greater the need for and the greater our
reliance upon regulation and its enforcement.... Of
necessity, society relies on government regulation
for its safety.
One of the most significant aspects of the distinc-
tion between true crimes and regulatory offences is to
be found in the differing concepts of fault that underlie
the two categories of prohibited conduct. Conviction
of a true crime (such as murder or robbery) necessarily
involves a judgment that the offender has seriously
infringed basic community values and is, therefore,
4 CRI Ml NAL LAW IN CANADA
considered to be morally culpable for his or her actions.
In contrast, conviction of a regulatory offence (such
as accidentally mislabelling a food item) may involve
very little (if any) moral culpability on the part of the
offender. Similarly, the penalties that may be imposed
following conviction of a true crime are generally far
more severe than those that may imposed when a
person has been found guilty of a regulatory offence.
In the Roy case (2012), the Supreme Court of
Canada examined the essential difference between
the Criminal Code offence of dangerous operation of
a motor vehicle, a true crime, and the provincial regu-
latory offence of careless driving (or driving without
due care and attention). On behalf of the Court,
Justice Cromwell stated that:
Dangerous driving causing death is a serious crim-
inal offence punishable by up to 14 years in prison.
Like all criminal offences, it consists of two com-
ponents: prohibited conduct operating a motor
vehicle in a dangerous manner resulting in death-
and a required degree of fault a marked departure
from the standard of care that a reasonable person
would observe in all the circumstances. The fault
component is critical, as it ensures that criminal
punishment is only imposed on those deserving the
stigma of a criminal conviction. . ..
Giving careful attention to the fault element of
the offence is essential if we are to avoid making
criminals out of the merely careless....
From at least the 1940s, the Court has distin-
guished between, on the one hand, simple negligence
that is required to establish civil liability or guilt of
provincial careless driving offences and, on the other
hand, the significantly greater fault required for the
criminal offence of dangerous driving.... Thus, the
"marked departure" standard underlines the serious-
ness of the criminal offence of dangerous driving,
separates federal criminal law from provincial regu-
latory law and ensures that there is an appropriate
fault requirement for Charter purposes.
In brief, true crimes are acts that are generally
considered to be inherently wrong by the majority of
Canadians (e.g., murder, burglary, and sexual assault).
On the other hand, regulatory offences are directed
toward the control of activities that are considered
by the majority of Canadians to be inherently lawful
(selling food, driving a motor vehicle, or placing an
advertisement in the local newspaper). Business, trade,
and industry need to be regulated for the benefit of
society as a whole, and penalties may be imposed for
breach of the requirements of the regulatory regime.
For example, whether Canadians should drive on the
left or right side of the road does not raise a ques-
tion of fundamental values. To avoid chaos, however,
each country has to make a choice as to which side of
the road its motorists should use: it would be absurd
to permit individual motorists to make that choice
for themselves. In other words, although driving is
an inherently legitimate activity, there has to be a
regulatory regime to protect the interests of all those
individuals who use the highways. The penalties
associated with regulatory offences are directed not
at the underlying activities themselves but rather at
breaches of the regulatory regime that ensures the
orderly and safe conduct of those activities.
It should be noted, however, that a federal regula-
tory statute may create a true crime. For example,
the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), is
a regulatory statute, but the offence of tax evasion,
under section 239(1), is a real crime, carrying a max-
imum penalty of up to two years' imprisonment and
a potentially large fine. Evasion of taxation would
rightly be considered an action that is inherently
wrong and deserving of punishment.
In Chapter 6, we shall examine regulatory offences
in more depth and demonstrate that the prosecution
(the Crown) has been granted the benefit of certain
advantages that render it easier to obtain a conviction
in relation to a regulatory offence than in relation
to a true crime. Most significantly, when an accused
person is charged with a true crime, the general rule
is that the Crown must prove all the elements of the
offence beyond a reasonable doubt. However, when
the charge in question concerns a regulatory offence,
the Crown merely has to prove that the accused
person committed the act prohibited by the legisla-
tion in question: once the commission of the prohib-
ited act has been established, then the accused person
must prove, on the balance of probabilities, that he
or she was not negligent.
Since regulatory offences differ significantly from
true crimes, they are frequently characterized as con-
stituting a body of quasi-criminallaw. 2 This term
means that the body of regulatory offences closely
resembles criminal law but nevertheless lacks two key
characteristics of criminal law namely, the prohibi-
tion of conduct that is regarded as inherently wrong
and the potential severity of the sentences that may
be imposed. Later in this chapter, we shall explore
the implications of the concept of quasi-criminallaw
for the field of constitutional law in Canada.
2 The prefix quasi- means "seeming," "not real," or "halfway."
NEL
 CHAPTER 1: INTRODUCTION TO CANADIAN CR IM INAL LAW
C AL LAW AS A FORM OF
PUBLIC LAW
Law may generally be defined as the collection of
rules and principles that govern the affairs of a par-
ticular society and that are enforced by a formal
system of control (courts, police, etc.). It is usual to
divide law into two parts: public law and private law.
Public law is concerned with issues that affect
the interests of the entire society. Constitutional
law deals with the allocation of powers between
the various provinces/territories of Canada and the
various levels of government (legislature, courts, and
executive). It also deals with the relationship between
the state and individual citizens. Administrative law
defines the powers, and regulates the activities, of
government agencies, such as the Immigration and
Refugee Board and the Canadian Radio-television
and Telecommunications Commission. Criminal law
is also considered to be part of public law because the
commission of a crime is treated as a wrong against
society as a whole and it is the Crown that prosecutes
criminal cases on behalf of all Canadians; indeed, all
criminal cases are catalogued as Regina (the Queen)
versus the accused person concerned.
Private law is concerned with the regulation of the
relationships that exist among individual members of
society. It includes the legal rules and principles that
apply to the ownership of property, contracts, torts
(injuries inflicted on another individual's person or
damage caused to the individual's property), and the
duties of spouses and other family members toward
one another. The resolution of private disputes may
be sought through the commencement of a "civil
suit" in the appropriate court.
THESOURCESOFC ALLAW
IN CANADA
Perhaps the most basic question we can raise in
relation to the Canadian criminal law is, "Where
does it come from?" The answer is that there are
two primary sources of law (or main sources of
criminal law): (i) legislation and (ii) judicial deci-
sions that either interpret such legislation or state
the "common law."
FEDERAL LEGISLATION
Since Canada is a federal state, legislation may be
enacted by both the Parliament of Canada and the
provincial or territorial legislatures. However, under
NE L
5
the Canadian Constitution, there is a distribution of
legislative powers between the federal and provincial
or territorial levels of government. Which level of
government has the power to enact criminal law? It is
clear that criminal law is a subject that falls within the
exclusive jurisdiction of the Parliament of Canada.
Indeed, by virtue of section 91 (2 7) of the British
North America Act, 1867 (renamed the Constitution
Act, 1867 in 1982), the federal Parliament has exclu-
sive jurisdiction in the field of "criminal law and the
procedures relating to criminal matters."
Just how extensive is the scope of the criminal
law power under section 91 (2 7) of the Constitution
Act? As we have seen, two essential characteristics
of a crime are a prohibition of certain conduct and
an accompanying penalty for violating that prohibi-
tion. Does that mean that the Canadian Parliament
can pass legislation on any issue that it chooses and
justify it on the basis that, because it contains both a
prohibition and a penalty, it must be criminal law?
If this were the case, there would be absolutely no
limits on the scope of the criminal law power. In fact,
the Supreme Court of Canada has stated clearly that
there must be a third factor, in addition to a prohibi-
tion and a penalty, for legislation to be recognized as
a genuine exercise of the criminal law power. What
is this third factor?
In the famous Margarine Reference case (1949),
Justice Rand, of the Supreme Court of Canada,
argued that the additional factor is the requirement
that the prohibition and penalty contained in the leg-
islation are directed toward a "public evil" or some
behaviour that is having an injurious effect upon the
Canadian public:
A crime is an act which the law, with appropriate
penal sanctions, forbids; but as prohibitions are
not enacted in a vacuum, we can properly look for
some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect
may be in relation to social, economic or political
interests; and the legislature has had in mind to sup-
press the evil or to safeguard the interest threatened.
Justice Rand asserted that, if the Parliament of
Canada chooses to prohibit certain conduct under
the criminal law power, then this prohibition must
be enacted "with a view to a public purpose which can
support it as being in relation to criminal law . ... "The
public purposes that would be included in this cat-
egory are "public peace, order, security, health, [and]
morality," although Justice Rand acknowledged that
this is not an exclusive list.
Another random document with
no related content on Scribd:
 KNOT OR ASH-COLOURED SANDPIPER.

Tringa islandica, Linn.

PLATE CCCXV. Adult in Summer and Winter.

The Knot, good Reader, is a handsome and interesting species,

whether in its spring or in its winter plumage, and, provided it be
young and fat, is always welcome to the palate of the connoisseur in
dainties. As to its habits, however, during the breeding season, I am
sorry to inform you that I know nothing at all, for in Labrador, whither
I went to examine them, I did not find a single individual. I have been
informed that several students of nature have visited its breeding
places; but why they have given us no information on the subject,
seeing that not only you and I, but many persons besides, would be
glad to hear about it, is what we cannot account for.
I do not wish you to infer from these remarks, that the persons
alluded to are the only ones who have neglected to note down on the
spot observations which might be interesting and useful. I myself am
very conscious of my own remissness in this respect, and deeply
regret the many opportunities of studying nature which have been in
a manner lost to me, on account of a temporary supineness which
has seized upon me, at the very moment when the objects of my
pursuit were placed within my reach by that bountiful Being to whom
we owe all our earthly enjoyments, and all our hopes of that future
happiness which we strive to merit.
I have traced the Knot along the shores of our Atlantic states, from
Texas to the entrance of the Bay of Fundy, in the months of April and
May, and again in the autumnal months. I have also found it in winter
in East Florida, and therefore feel confident that some of the species
do not proceed beyond our southern limits at that season. Whilst on
the Bay of Galveston, in Texas, in April 1837, I daily observed groups
of Knots arriving there, and proceeding eastward, meandering along
the shores of the Gulf of Mexico. In the interior of the United States I
never observed one, and for this reason I am inclined to think that
the species moves northward along the coast. But as I did not find
any in Nova Scotia, Labrador, or Newfoundland, I consider it
probable that those which betake themselves to the fur countries,
turn off from our Atlantic shores when they have reached the
entrance of the Bay of Fundy. However this may be, it is certain that
they reach a very high latitude, and that some stop to breed about
Hudson’s Bay, where Dr Richardson found them in summer.
On some few occasions I have observed the Knot associating with
the Tell-tale Godwit and Semi-palmated Snipe, about a mile from the
sea, along the margins of ponds of brackish-water; but such
localities seemed in a manner unnatural to them, and it was seldom
that more than two or three were seen there. Along the shores, in
spring, I have not unfrequently thought that they seemed dull, as if
they had lost themselves, for they would allow a person to go very
near, and seldom took to wing unless induced to do so by
companions of other species, who were better aware of their
situation. In autumn, when they at times collect into very large flocks,
I have often followed them until I obtained as many as I wished.
Wilson has so beautifully described their movements at such times,
that, although I have often witnessed them myself, I prefer giving his
own words.
“In activity it is superior to the Turnstone; and traces the flowing and
recession of the waves along the sandy beach with great
nimbleness, wading and searching among the loosened particles for
its favourite food, which is a small thin oval bivalve shell-fish, of a
white or pearl-colour, and not larger than the seed of an apple.
These usually lie at a short distance below the surface; but in some
places are seen at low water in heaps, like masses of wet grain, in
quantities of more than a bushel together. During the latter part of
summer and autumn, these minute shell-fish constitute the food of
almost all those busy flocks that run with such activity along the
sands, among the flowing and retreating waves. They are universally
swallowed whole; but the action of the bird’s stomach, assisted by
the shells themselves, soon reduces them to a pulp. Digging for
these in the hard sand would be a work of considerable labour,
whereas, when the particles are loosened by the flowing of the sea,
the birds collect them with great ease and dexterity. It is amusing to
observe with what adroitness they follow and elude the tumbling surf,
while at the same time they seem wholly intent on collecting their
food.”
I have however seen the Knot probe the wet sands, on the borders
of oozy salt marshes, thrusting in its bill to the feathers on the
forehead, and this with the same dexterity as several other species.
Its flight is swift, at times rather elevated, and well sustained. At their
first arrival in autumn, when they are occasionally seen in great
numbers in the same flock, their aërial evolutions are very beautiful,
for, like our Parrakeet, Passenger Pigeon, Rice-bird, Red-winged
Starling, and other birds, they follow each other in their course, with
a celerity that seems almost incomprehensible, when the individuals
are so near each other that one might suppose it impossible for them
to turn and wheel without interfering with each other. At such times,
their lower and upper parts are alternately seen, the flock exhibiting
now a dusky appearance, and again gleaming like a meteor.
Many of these young birds continue mottled with dull reddish-orange
on their lower parts until the winter is far advanced. The old
individuals have their whole upper plumage of a uniform grey, and
their lower parts white. As those of the first year have their markings
at that season handsomer than at any other period of their lives, I
have given the figure of one in preference to that of an adult.
It has been supposed by some that two different species of Knot
occur in the United States, but I am of a different opinion. The
dimensions of birds of this family, as well as of many others, are
extremely variable; and, on shooting eight or ten Knots, it would be
difficult to find two of them having exactly the same size and
proportions. If I add to this the very remarkable changes of plumage
exhibited by birds of this family before and after maturity, you will not
think it strange that Wilson should have mistaken the young of the
Knot for a separate species from the old bird in its spring dress.
Indeed, I am obliged to tell you that I have been much puzzled,
when, on picking up several of these birds from the same flock, I
have found some having longer and thicker bills than others, with as
strange a difference in the size of their eyes. These differences I
have endeavoured to represent in my plate.
My friend John Bachman states, that this species is quite abundant
in South Carolina, in its autumn and spring migrations, but that he
has never seen it there in full plumage. In that country it is called the
“May Bird,” which, however, is a name also given to the Rice Bird.
Along the coasts of our Middle District, it is usually known by the
name of “Grey-back.”

Tringa islandica, Canutus, cinerea, grisea, &c. of Linnæus and Latham,

&c.
Tringa islandica, Ch. Bonaparte, Synopsis of Birds of United States, p. 350.
Red-breasted Sandpiper, Tringa rufa, Wils. Amer. Ornith. vol. vii. p. 43, pl.
57, fig. 5. Summer.
Ash-coloured Sandpiper, Tringa cinerea, Wils. Amer. Ornith. vol. vii. p.
36, pl. 57, fig. 2. Winter.
 Knot, or Ash-coloured Sandpiper, Nuttall, Manual, vol. ii. p. 125.
Tringa cinerea, Richards. and Swains. Fauna Bor.-Amer. vol. ii. p. 387.

Adult Male in Summer. Plate CCCXV. Fig. 1.

Bill rather longer than the head, slender, straight, compressed,
tapering, with the tip a little enlarged and blunt. Upper mandible with
the dorsal line straight, and slightly declinate, the ridge narrow and
flattened until towards the end, when it becomes considerably
broader, the sides sloping, the tip convex above and ending in a
blunt point, the edges thick and flattened. Nasal groove extending to
near the tip; nostrils basal, linear, pervious. Lower mandible with the
angle long and very narrow, the dorsal line straight, the sides sloping
outwards, with a long narrow groove, the tip a little broader, but
tapering.
Head rather small, oblong, compressed. Eyes of moderate size.
Neck of ordinary length. Body rather full. Feet rather long, slender;
tibia bare, a third part of its length; tarsus somewhat compressed,
anteriorly and posteriorly with numerous small scutella; hind toe very
small, the rest of moderate length, slender, the fourth slightly longer
than the second, the third longest; all free, broadly marginate,
flattened beneath, and with numerous scutella above. Claws small,
slightly arched, compressed, rather obtuse, that of the third toe much
larger, with the inner edge dilated.
Plumage very soft, blended on the head, neck, and lower parts, the
feathers rather distinct above. Wings very long and pointed;
primaries tapering, obtuse, the first longest, the second two-twelfths
of an inch shorter, the rest rapidly decreasing; outer secondaries
slightly incurved, inner elongated, straight and tapering, one of them
extending when the wing is closed, to an inch and a quarter from its
tip. Tail rather short, nearly even, of twelve rather broad feathers
which taper to a broad point.
Bill and feet black. Iris dark hazel. Upper part of the head and hind
neck light grey, tinged with buff, and longitudinally streaked with
dusky; fore part of back and scapulars, variegated with brownish-
black and yellowish, and each feather with several spots of the latter
and tipped with whitish; the hind part of the back, rump, and upper
tail-coverts, white, barred with black; wing-coverts ash-grey, edged
with paler. Alula and primary-coverts brownish-black, tipped with
white; primaries similar, their shafts and the outer margins of all
excepting the first three, white, the inner webs towards the base light
grey; secondaries and their coverts grey, margined with white. Tail-
feathers ash-grey tinged with brown, and narrowly edged with white.
The sides of the head, fore part of neck, breast, and abdomen, rich
brownish-orange; lower tail-coverts and feathers of the legs, white,
each of the former with a central dusky narrow-shaped or elongated
spot, axillaries white barred with dusky; lower wing-coverts dusky
with white margins.
Length to end of tail 10 1/4 inches, to end of wings 10 3/4, to end of
claws 11 1/2; extent of wings 21; wing from flexure 7; tail 2 9/12; bill
along the ridge 1 4 1/2/12, along the edge of lower mandible 1 4 1/2/12;
tarsus 1 1/4; hind toe and claw 4/12; middle toe and claw 1 1 1/2/12.
Weight 5 1/2 oz.
The female is similar to the male, but considerably larger.
Length to end of tail 10 3/4 inches. Weight 6 ounces.

In Winter. Plate CCCXV. Fig. 2.

Bill greenish-black, eye of a darker brown. Feet dull yellowish-green;
claws dusky. The upper parts are deep ash-grey, each feather
margined with whitish; feathers of the rump greyish-white, upper tail-
coverts white, barred with dusky. The quills and tail feathers as in
summer. A band from the bill over the eye to the hind part of head,
white; loral space, cheeks, and sides of neck pale grey, streaked
with darker; throat and lower parts in general, white; the sides, axillar
feathers, and under wing-coverts, barred or spotted with dusky;
lower tail-coverts as in summer.
The young in autumn are of a dull light brownish-grey colour above,
each feather having a narrow whitish margin, within which is a dusky
line. The fore part and sides of the neck, and the fore part of the
breast dull greyish-white, with small dusky-grey longitudinal streaks;
the band over the eye indistinct, the loral space darker. The bill and
feet are of a duller tint, and the eye darker, than in the adult in winter.
Weight 4 1/4 oz.

On the roof of the mouth is a double series of small blunt papillæ.

The tongue is very slender, 1 1/12 inch long, emarginate and papillate
at the base, channelled above, horny beneath, the point rather
acute. The œsophagus is 4 3/4 inches long, narrow, its diameter 3 1/2
twelfths. The proventriculus is oblong, 5 1/2 twelfths in diameter, 9
twelfths long. The stomach is an extremely powerful gizzard, of a
roundish form, 1 inch and 5 twelfths long, its greatest breadth 1 1/4
inch; the cuticular lining thin, horny, with large longitudinal rugæ. The
intestine 25 inches long, its average diameter 3 1/2 twelfths; cœca
cylindrical, 3 twelfths long. The contents of the stomach are
fragments of mussels and gravel, with which part of the intestine is
also filled.
The trachea is 3 1/4 inches long, flattened, 2 1/2 twelfths broad at the
top, diminishing to 2 twelfths; its rings very slender and unossified,
98 in number; the bronchial half-rings about 15. The lateral muscles
very thin, the sterno-tracheal slender.
 ANHINGA OR SNAKE-BIRD.

Plotus Anhinga, Linn.

PLATE CCCXVI. Male and Female.

Reader, the pleasures which I have experienced in the course of this

chequered life of mine have been many;—perhaps many more than
would have fallen to my share, had I not, fortunately for me, become
a devoted and enthusiastic lover of Nature’s beauteous and
wondrous works, which, in truth, I have been from the earliest period
to which my recollection extends; and those who have known me
best will not for a moment consider it extravagant in me to say, that
among the greatest pleasures I have known, has been that derived
from pursuing and faithfully describing such of our American birds as
were previously unknown or but little observed. Many sultry summer
days I have passed amidst the most dismal swamps of the secluded
woods of Louisiana, watching with anxiety and in silence the curious
habits of the Anhinga; the female bird now sitting closely on her
eggs, in a nest constructed by herself and securely placed on the
widely extended branch of the tallest cypress, that, as if by magic
planted, stood in the midst of an ample lake, while with keen eyes
she watched every motion of the wily Buzzard and cunning Crow,
lest either of these cowardly marauders might deprive her of her
treasures; the partner of her cares and joys meanwhile, with
outspread wings and fan-like tail, soaring on high, and glancing first
anxiously towards her he loves, then in anger towards one and all of
their numerous enemies. In wider and bolder circles he moves, rising
higher and still higher, until at length, becoming a mere dusky speck,
he almost vanishes from my sight amidst the expanse of the blue
sky; but now, suddenly closing his wings, and rushing downwards
like a meteor, I see him instantly alight erect upon the edge of the
nest, and complacently gaze upon his beloved.
After some time, about three weeks perhaps, I have found the
eggshells beneath the great cypress tree, cast out of the nest by the
intelligent and attentive mother, and floating on the green slime of
the stagnant pool. Climbing to the nest itself, I have seen the tender
young clad in down far softer than our sea-island cottons, writhing
their slender and tremulous necks, and with open mouths and
extended pouches seeking, as all infants are wont to seek, the food
suited to their delicate frame. Then, retiring to some concealed spot,
I have seen the mother arrive with a supply of finely masticated
nutriment, compounded of various fishes from the lake, and furnish
each of her progeny by regurgitation with its due proportion. Thus,
also, I have watched the growth of the younglings, marking their
daily progress, which varied according to the changes of
temperature and the state of the atmosphere. At length, after waiting
many days in succession, I have seen them stand, in an almost erect
posture, on a space scarcely large enough to contain them. The
parents seemed aware of the condition of their brood, and,
affectionate as they still appeared to be, I thought their manner
towards them was altered, and I felt grieved. Indeed, sorely grieved I
was when, next week, I saw them discharge, as it were, their
children, and force them from the nest into the waters that were
spread below. It is true that, previous to this, I had seen the young
Anhingas trying the power of their wings as they stood upright on the
nest, flapping them many minutes at a time; yet, although thus
convinced that they were nearly in a state to provide for themselves,
it was not without a feeling of despondency that I saw them hurled
into the air, and alight on the water. But, Reader, Nature in all this
had acted beneficially; and I afterwards found that in thus expelling
their young so soon, the old birds had in view to rear another brood
in the same spot, before the commencement of unfavourable
weather.
Many writers have described what they have been pleased to call
the habits of the Anhinga; nay, some have presumed to offer
comments upon them, and to generalize and form theories thereon,
or even to inform us gravely and oracularly what they ought to be,
when the basis of all their fancies was merely a dried skin and
feathers appended. Leaving these ornithologists for the present to
amuse themselves in their snug closets, I proceed to detail the real
habits of this curious bird, as I have observed and studied them in
Nature.
The Snake-Bird is a constant resident in the Floridas, and the lower
parts of Louisiana, Alabama, and Georgia. Few remain during winter
in South Carolina, or in any district to the eastward of that State; but
some proceed as far as North Carolina in spring, and breed along
the coast, I have found it in Texas in the month of May, on the waters
of Buffalo Bayou, and the St Jacinto River, where it breeds, and
where, as I was told, it spends the winter. It rarely ascends the
Mississippi beyond the neighbourhood of Natchez, from which most
of the individuals return to the mouths of that great stream, and the
numerous lakes, ponds, and bayous in its vicinity, where I have
observed the species at all seasons, as well as in the Floridas.
Being a bird which, by its habits, rarely fails to attract the notice of
the most indifferent observer, it has received various names. The
Creoles of Louisiana, about New Orleans, and as far up the
Mississippi as Pointe Coup, call it “Bec à Lancette,” on account of
the form of its bill; whilst at the mouths of the river it bears the name
of “Water Crow.” In the southern parts of Florida, it is called the
“Grecian Lady,” and in South Carolina it is best known by the name
of “Cormorant.” Yet in all these parts, it bears also the name of
“Snake-Bird;” but it is nowhere with us called the “Black-bellied
Darter,” which, by the way, could only be with strict propriety applied
to the adult male.
Those which, on the one hand, ascend the Mississippi, and, on the
other, visit the Carolinas, arrive at their several places of resort early
in April, in some seasons even in March, and there remain until the
beginning of November. Although this bird is occasionally seen in the
immediate vicinity of the sea, and at times breeds not far from it, I
never met with an individual fishing in salt water. It gives a decided
preference to rivers, lakes, bayous, or lagoons in the interior, always
however in the lowest and most level parts of the country. The more
retired and secluded the spot, the more willingly does the Snake-Bird
remain about it. Sometimes indeed I have suddenly come on some
in such small ponds, which I discovered by mere accident, and in
parts of woods so very secluded, that I was taken by surprise on
seeing them. The Floridas therefore are peculiarly adapted for this
species, as there the torpid waters of the streams, bayous, and
lakes, are most abundantly supplied with various species of fish,
reptiles, and insects, while the temperature is at all seasons
congenial, and their exemption from annoyance almost unparalleled.
Wherever similar situations occur in other parts of the Southern
States, there the Anhingas are met with in numbers proportioned to
the extent of the favourable localities. It is very seldom indeed that
any are seen on rapid streams, and more especially on clear water,
a single instance of such an occurrence being all that I have
observed. Wherever you may chance to find this bird, you will
perceive that it has not left itself without the means of escape; you
will never find one in a pond or bayou completely enclosed by tall
trees, so as to obstruct its passage; but will observe that it generally
prefers ponds or lakes, surrounded by deep and almost
impenetrable morasses, and having a few large trees growing out of
the water near their centre, from the branches of which they can
easily mark the approach of an enemy, and make their escape in
good time. Unlike the Fish-hawk and Kings-fisher, the Anhinga
however never plunges or dives from an eminence in procuring its
prey, although from its habit of occasionally dropping in silence to the
water from its perch, for the purpose of afterwards swimming about
and diving in the manner of the Cormorant, some writers have been
led to believe that it does so.
The Black-bellied Darter, all whose names I shall use, for the
purpose of avoiding irksome repetitions, may be considered as
indefinitely gregarious; by which I mean that you may see eight or
more together at times, during winter especially, or only two, as in
the breeding season. On a few occasions, whilst in the interior of the
southernmost parts of Florida, I saw about thirty individuals on the
same lake. While exploring the St John’s River of that country in its
whole length, I sometimes saw several hundreds together. I procured
a great number on that stream, on the lakes in its neighbourhood,
and also on those near the plantation of Mr Bulow, on the eastern
side of the Peninsula. I observed that the young Darters, as well as
those of the Cormorants, Herons, and many other birds, kept apart
from the old individuals, which they however joined in spring, when
they had attained their full beauty of plumage.
The Anhinga is altogether a diurnal bird, and, like the Cormorant, is
fond of returning to the same roosting place every evening about
dusk, unless prevented by molestation. At times I have seen from
three to seven alight on the dead top branches of a tall tree, for the
purpose of there spending the night; and this they repeated for
several weeks, until on my having killed some of them and wounded
others, the rest abandoned the spot, and after several furious
contests with a party that roosted about two miles off, succeeding in
establishing themselves among them. At such times they seldom sit
very near each other, as Cormorants do, but keep at a distance of a
few feet or yards, according to the nature of the branches. Whilst
asleep, they stand with the body almost erect, but never bend the
tarsus so as to apply it in its whole length, as the Cormorant does;
they keep their head snugly covered among their scapulars, and at
times emit a wheezing sound, which I supposed to be produced by
their breathing. In rainy weather they often remain roosted the
greater part of the day, and on such occasions they stand erect, with
their neck and head stretched upwards, remaining perfectly
motionless, as if to allow the water to glide off their plumage. Now
and then, however, they suddenly ruffle their feathers, violently
shake themselves, and again compressing their form, resume their
singular position.
Their disposition to return to the same roosting places is so decided
that, when chased from their places of resort, they seldom fail to
betake themselves to them during the day; and in this manner they
may easily be procured with some care. Whilst at Mr Bulow’s, I was
almost daily in the habit of visiting a long, tortuous, bayou, many
miles in extent, which at that season (winter) was abundantly
supplied with Anhingas. There the Otter, the Alligator, and many
species of birds, found an ample supply of food; and as I was
constantly watching them, I soon discovered a roosting place of the
Snake-Birds, which was a large dead tree. I found it impossible to
get near them either by cautiously advancing in the boat, or by
creeping among the briars, canes, and tangled palmettoes which
profusely covered the banks. I therefore paddled directly to the
place, accompanied by my faithful and sagacious Newfoundland
dog. At my approach the birds flew off towards the upper parts of the
stream, and as I knew that they might remain for hours, I had a boat
sent after them with orders to the Negroes to start all that they could
see. Dragging up my little bark, I then hid myself among the tangled
plants, and, with my eyes bent on the dead tree, and my gun in
readiness, I remained until I saw the beautiful bird alight and gaze
around to see if all was right. Alas! it was not aware of its danger,
but, after a few moments, during which I noted its curious motions, it
fell dead into the water, while the reverberations consequent on the
discharge of my gun alarmed the birds around, and by looking either
up or down the bayou I could see many Anhingas speeding away to
other parts. My dog, as obedient as the most submissive of servants,
never stirred until ordered, when he would walk cautiously into the
water, swim up to the dead bird, and having brought it to me, lie
down gently in his place. In this manner, in the course of one day I
procured fourteen of these birds, and wounded several others. I may
here at once tell you that all the roosting places of the Anhinga which
I have seen were over the water, either on the shore or in the midst
of some stagnant pool; and this situation they seem to select
because there they can enjoy the first gladdening rays of the
morning sun, or bask in the blaze of its noontide splendour, and also
observe with greater ease the approach of their enemies, as they
betake themselves to it after feeding, and remain there until hunger
urges them to fly off. There, trusting to the extraordinary keenness of
their beautiful bright eyes in spying the marauding sons of the forest,
or the not less dangerous enthusiast, who, probably like yourself,
would venture through mud and slime up to his very neck, to get
within rifle shot of a bird so remarkable in form and manners, the
Anhingas, or “Grecian Ladies,” stand erect, with their wings and tail
fully or partially spread out in the sunshine, whilst their long slender
necks and heads are thrown as it were in every direction by the most
curious and sudden jerks and bendings. Their bills are open, and
you see that the intense heat of the atmosphere induces them to
suffer their gular pouch to hang loosely. What delightful sights and
scenes these have been to me, good Reader! With what anxiety
have I waded toward these birds, to watch their movements, while at
the same time I cooled my over-heated body, and left behind on the
shores myriads of hungry sand-flies, gnats, mosquitoes, and ticks,
that had annoyed me for hours! And oh! how great has been my
pleasure when, after several failures, I have at last picked up the
spotted bird, examined it with care, and then returned to the gloomy
shore, to note my observations! Great too is my pleasure in now
relating to you the results of my long personal experience, together
with that of my excellent friend Dr Bachman, who has transmitted his
observations on this bird to me.
Wilson, I am inclined to think, never saw a live Anhinga; and the
notes, furnished by Mr Abbot of Georgia, which he has published,
are very far from being correct. In the supplementary volumes of
American Ornithology published in Philadelphia, the Editor, who
visited the Floridas; added nothing of importance beyond giving
more accurate measurements of a single specimen than Wilson
had given from the stuffed skins from which he made his figures, and
which were in the museum of that city.
The peculiar form, long wings, and large fan-like tail of the Anhinga,
would at once induce a person looking upon it to conclude that it was
intended by nature rather for protracted and powerful flight, than for
spending as it does more than half of its time by day in the water,
where its progress, one might suppose, would be greatly impeded by
the amplitude of these parts. Yet how different from such a
supposition is the fact? The Anhinga in truth is the very first of all
fresh-water divers. With the quickness of thought it disappears
beneath the surface, and that so as scarcely to leave a ripple on the
spot; and when your anxious eyes seek around for the bird, you are
astonished to find it many hundred yards distant, the head perhaps
merely above water for a moment; or you may chance to perceive
the bill alone gently cutting the water, and producing a line of wake
not observable beyond the distance of thirty yards from where you
are standing. With habits like these it easily eludes all your efforts to
procure it. When shot at while perched, however severely wounded
they may be, they fall at once perpendicularly, the bill downward, the
wings and tail closed, and then dive and make their way under water
to such a distance that they are rarely obtained. Should you,
however, see them again, and set out in pursuit, they dive along the
shores, attach themselves to roots of trees or plants by the feet, and
so remain until life is extinct. When shot dead on the trees, they
sometimes cling so firmly to the branches that you must wait some
minutes before they fall.
The generally received opinion or belief that the Anhinga always
swims with its body sunk beneath the surface is quite incorrect; for it
does so only when in sight of an enemy, and when under no
apprehension of danger it is as buoyant as any other diving bird,
such as a Cormorant, a Merganser, a Grebe, or a Diver. This
erroneous opinion has, however, been adopted simply because few
persons have watched the bird with sufficient care. When it first
observes an enemy, it immediately sinks its body deeper, in the
manner of the birds just mentioned, and the nearer the danger
approaches, the more does it sink, until at last it swims off with the
head and neck only above the surface, when these parts, from their
form and peculiar sinuous motion, somewhat resemble the head and
part of the body of a snake. It is in fact from this circumstance that
the Anhinga has received the name of Snake-Bird. At such a time, it
is seen constantly turning its head from side to side, often opening
its bill as if for the purpose of inhaling a larger quantity of air, to
enable it the better to dive, and remain under water so long that
when it next makes its appearance it is out of your reach. When
fishing in a state of security it dives precisely like a Cormorant,
returns to the surface as soon as it has procured a fish or other
article of food, shakes it, if it is not too large often throws it up into
the air, and receiving it conveniently in the bill, swallows it at once,
and recommences its search. But I doubt much if it ever seizes on
any thing that it cannot thus swallow whole. They have the curious
habit of diving under any floating substances, such as parcels of
dead weeds or leaves of trees which have accidentally been
accumulated by the winds or currents, or even the green slimy
substances produced by putrefaction. This habit is continued by the
species when in a perfect state of domestication, for I have seen one
kept by my friend John Bachman thus diving when within a few feet
of a quantity of floating rice-chaff, in one of the tide-ponds in the
neighbourhood of Charleston. Like the Common Goose, it invariably
depresses its head while swimming under a low bridge, or a branch
or trunk of a tree hanging over the water. When it swims beneath the
surface of the water, it spreads its wings partially, but does not
employ them as a means of propulsion, and keeps its tail always
considerably expanded, using the feet as paddles either
simultaneously, or alternately.
The quantity of fish consumed by this bird is astonishing; and what I
am about to relate on this subject will appear equally so. One
morning Dr Bachman and I gave to an Anhinga a Black Fish,
measuring nine and a half inches, by two inches in diameter; and
although the head of the fish was considerably larger than its body,
and its strong and spinous fins appeared formidable, the bird, which
was then about seven months old, swallowed it entire, head
foremost. It was in appearance digested in an hour and a half, when
the bird swallowed three others of somewhat smaller size. At another
time, we placed before it a number of fishes about seven and a half
inches long, of which it swallowed nine in succession. It would
devour at a meal forty or more fishes about three inches and a half
long. On several occasions it was fed on Plaice, when it swallowed
some that were four inches broad, extending its throat, and
compressing them during their descent into the stomach. It did not
appear to relish eels, as it eat all the other sorts first, and kept them
to the last; and after having swallowed them, it had great difficulty in
keeping them down, but, although for a while thwarted, it would
renew its efforts, and at length master them. When taken to the tide-
pond at the foot of my friend’s garden, it would now and then after
diving return to the surface of the water with a cray-fish in its mouth,
which it pressed hard and dashed about in its bill, evidently for the
purpose of maiming it, before it would attempt to swallow it, and it
never caught a fish without bringing it up to subject it to the same
operation.
While residing near Bayou Sara, in the State of Mississippi, I was in
the habit of occasionally visiting some acquaintances residing at
Pointe Coup, nearly opposite the mouth of the bayou. One day, on
entering the house of an humble settler close on the western bank of
the Mississippi, I observed two young Anhingas that had been taken
out of a nest containing four, which had been built on a high cypress
in a lake on the eastern side of the river. They were perfectly tame
and gentle, and much attached to their foster-parents, the man and
woman of the house, whom they followed wherever they went. They
fed with equal willingness on shrimps and fish, and when neither
could be had, contented themselves with boiled Indian corn, of which
they caught with great ease the grains as they were thrown one by
one to them. I was afterwards informed, that when a year old, they
were allowed to go to the river and fish for themselves, or to the
ponds on either side, and that they regularly returned towards night
for the purpose of roosting on the top of the house. Both birds were
males, and in time they fought hard battles, but at last each met with
a female, which it enticed to the roost on the house-top, where all the
four slept at night for a while. Soon after, the females having
probably laid their eggs in the woods, they all disappeared, and were
never again seen by the persons who related this curious affair.
The Anhinga is shy and wary when residing in a densely peopled
part of the country, which, however, is rarely the case, as I have
already mentioned; but when in its favourite secluded and peaceful
haunts, where it has seldom or never been molested, it is easily
approached and without difficulty procured; nay, sometimes one will
remain standing in the same spot and in the same posture, until you
have fired several bullets from your rifle at it. Its mode of fishing is
not to plunge from a tree or stump in pursuit of its prey, but to dive
while swimming in the manner of Cormorants and many other birds.
Indeed, it could very seldom see a fish from above the surface of the
turbid waters which it prefers.
It moves along the branches of trees rather awkwardly; but still it
walks there, with the aid of its wings, which it extends for that
purpose, and not unfrequently also using its bill in the manner of a
Parrot. On the land, it walks and even runs with considerable ease,
certainly with more expertness than the Cormorant, though much in
the same style. But it does not employ its tail to aid it, for, on the
contrary, it carries that organ inclined upwards, and during its
progress from one place to another, the movements of its head and
neck are continued. These movements, which, as I have said,
resemble sudden jerkings of the parts to their full extent, become
extremely graceful during the love season, when they are reduced to
gentle curvatures. I must not forget to say, that during all these
movements, the gular pouch is distended, and the bird emits rough
guttural sounds. If they are courting on wing, however, in the manner
of Cormorants, Hawks, and many other birds, they emit a whistling
note, somewhat resembling that of some of our rapacious birds, and
which may be expressed by the syllables eek, eek, eek, the first
loudest, and the rest diminishing in strength. When they are on the
water, their call-notes so much resemble the rough grunting cries the
Florida Cormorant, that I have often mistaken them for the latter.
The flight of the Anhinga is swift, and at times well sustained; but like
the Cormorants, it has the habit of spreading its wings and tail before
it leaves its perch or the surface of the water, thus frequently
affording the sportsman a good opportunity of shooting it. When
once on wing, they can rise to a vast height, in beautiful gyrations,
varied during the love-season by zigzag lines chiefly performed by
the male, as he plays around his beloved. At times they quite
disappear from the gaze, lost as it were, in the upper regions of the
air; and at other times, when much lower, seem to remain
suspended in the same spot for several seconds. All this while, and
indeed as long as they are flying, their wings are directly extended,
their neck stretched to its full length, their tail more or less spread
according to the movements to be performed, being closed when
they descend, expanded and declined to either side when they
mount. During their migratory expeditions, they beat their wings at
times in the manner of the Cormorant, and at other times sail like the
Turkey Buzzard and some Hawks, the former mode being more
frequently observed when they are passing over an extent of
woodland, the latter when over a sheet of water. If disturbed or
alarmed, they fly with continuous beats of the wings, and proceed
with great velocity. As they find difficulty in leaving their perch without
previously expanding their wings, they are also, when about to alight,
obliged to use them in supporting their body, until their feet have
taken a sufficient hold of the branch on which they desire to settle. In
this respect, they exactly resemble the Florida Cormorant.
There are facts connected with the habits of birds which might afford
a pretty good idea of the relative temperatures of different parts of
the country during a given season; and those observed with regard
to the Anhinga seem to me peculiarly illustrative of this
circumstance. I have found the “Grecian Lady” breeding on St John’s
River in East Florida, near Lake George, as early as the 23d of
February; having previously seen many of them caressing each
other on the waters, and again carrying sticks, fresh twigs, and other
matters, to form their nests, and having also shot females with the
eggs largely developed. Now, at the same period, perhaps not a
single Anhinga is to be seen in the neighbourhood of Natchez, only a
few about New Orleans, in the eastern parts of Georgia, and the
middle maritime portions of South Carolina. In Louisiana this bird
breeds in April or May, and in South Carolina rarely before June, my