house of girl for prostitution. (b) inveigles or entices any such woman or girl to a house Enticing of ill-fame or assignation for the purpose of illicit inter- girl to course or prostitution, or knowingly conceals in such ill-fame. house any such woman or girl so inveigled or enticed; or, (c) procures, or attempts to procure, any woman or girl to Procuring become, either within or without Canada, a common prostitute; or, (d) procures, or attempts to procure, any woman or girl to To leave Canada for leave Canada with intent that she may become an inmate the purpose. of a brothel elsewhere; or, (e) procures any woman or girl to come to Canada from To come abroad with intent that she may become an inmate of a brothel in Canada; or, (f) procures, or attempts to procure, any woman or girl to To leave her leave her usual place of abode in Canada, such place not abode for being a brothel, with intent that she may become an inmate of a brothel, within or without Canada; or, (g) by threats or intimidation procures, or attempts to pro- Carnal concure, any woman or girl to have any unlawful carnal connection, either within or without Canada; or, into Canada for the purpose. the purpose. nection by threats. (h) by false pretenses or false representations procures any By false woman or girl, not being a common prostitute or of known pretenses. immoral character, to have any unlawful carnal connection, either within or without Canada; or, (i) applies, administers to, or causes to be taken by any Administerwoman or girl any drug, intoxicating liquor, matter, or ing drugs for the purpose. thing with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connection with such woman or girl. 55-56 V., c. 29, s. 185. Form of indictment under sub-sec. (a).]—That C.D. on the day of in the year by falsely pretending and representing unto one A.B., that here set out the false pretences or representations) did procure the said A.B., to have illicit carnal connection with a certain man named (or to the jurors aforesaid unknown) she, the said A.B., at the time of such procurement, being then a woman (or girl) under the age of twenty-one years, to wit, of the age of whereas the truth and in fact (negative the pretences or representations). A conviction for "unlawfully procuring or attempting to procure" a girl to become a prostitute, is void for duplicitly and for uncertainty. R. v. Gibson (1898), 2 Can. Cr. Cas. 302. Limitation.]-Prosecutions for offences under this section must be brought within one year from the commission of the offence. Section 1140 (c). Corroboration.]-No person accused of an offence under this section shall be convicted upon the evidence of one witness unless such witness is Householder corroborated in some material particular by evidence implicating the accused. Section 1002. In R. v. McNamara (1891), 20 O.R. 489, it was held that on an indictment for attempting to procure a woman to become a prostitute, it is admissible to prove in corroboration of the woman's evidence, that the house to which the prisoner had taken her had the general reputation of being a bawdy house; (Galt, C.J., Rose and MacMahon, JJ.,). Mr. Justice Rose there adopts the opinion of O'Neall, J., in State v. McDowell, Dudley's South Carolina Law & Eq. Reports 346, in which that judge propounds a much more extensive rule and says: "Every corrupting fact which can be supplied by general proof should be excluded. The general proof here is just as satisfactory as the most direct proof can be. And in a case in which character is its very gist I am willing to make that which everybody says, the evidence on which a jury may, if they choose, convict defendants for keeping a bawdy house." Dudley S.C.L. & Eq. R. 346. With reference to the opinion just quoted, Osler, J.A., said in The Queen v. St. Clair, 3 Can. Cr. Cas. 551, that he was not prepared to concur with it unreservedly. Search for women in house of ill-fame.]—See sec. 640. Excluding public from court room.]—See sec. 645. By false pretences.]-Sub-section (h) declares it to be an offence by false pretences or false representations to procure any unlawful carnal connection with the exception therein stated. It will be observed that the words "with any other person or persons" which are used in sub-sec. (a) are not used in sub-sec. (h). Under a similar English statute a conviction was upheld under the false pretence clause for procuring the unlawful connection between the prosecutrix and the accused himself upon the false representation of the accused that he was not a married man. R. v. Williams (1898), 33 Eng. L.J. 253; R. v. Jones, [1898] 1 Q.B. 4. Inducing to come from abroad.]-Upon a charge of procuring a girl to come to Canada from abroad with intent that she may become an inmate of a brothel in Canada, the acts of inducement must be shewn to have been committed in Canada to give jurisdiction to a Canadian court, unless the accused is a British subject. Re Gertie Johnson, 8 Can. Cr. Cas. 243. 217. Every one who, being the owner or occupier of any permitting premises, or having, or acting or assisting in, the management defilement. or control thereof, induces or knowingly suffers any girl under Penalty. Penalty. the age of eighteen years to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally, is guilty of an indictable offence, and is liable,— (a) to ten years' imprisonment if such girl is under the age of fourteen years; (b) to two years' imprisonment if such girl is of or above the age of fourteen years. 63-64 V., c. 46, s. 3. Evidence.]-On a charge of allowing a girl under 18 to be upon premises for immoral purposes, the evidence of the girl proving that she shared with the proprietor the money she obtained by prostitution there carried on, is sufficiently corroborated under Code sec. 1002, by the evidence of another witness tending to shew that the place was a bawdy house. The King v. Brindley (1903), 6 Can. Cr. Cas. 196. A father was convicted under a similar section of the English Criminal Law Amendment Act, 1885, of knowingly suffering his daughter under sixteen to be on the premises for the purpose mentioned, although occupied by the father and daughter as their home. R. v. Webster, 16 Q.B.D. 134, 15 Cox C.C. 775; but a mother was held not to be guilty under it where, for the purpose of obtaining conclusive evidence against a man who had seduced her daughter, she permitted him to come to her house to repeat his unlawful intercourse. R. v. Merthyr Tydfil Justices, 10 Times L.R. 375. Corroboration required.]-See sec. 1002. Limitation.]-The prosecution must be commenced within one year from the commission of the offence. Section 1140 (c). Excluding public from court room.]-See sec. 645. 218. Every one is guilty of an indictable offence and liable Conspiracy to two years' imprisonment who conspires with any other person to defile. by false pretenses, or false representations or other fraudulent means to induce any woman to commit adultery or fornication. 55-56 V., c. 29, s. 188. Corroboration.]-See sec. 1002. Excluding public from court room.]-See sec. 645. idiots. 219. Every one is guilty of an indictable offence and liable Carnally to four years' imprisonment who unlawfully and carnally knowing knows, or attempts to have unlawful carnal knowledge of, any female idiot or imbecile, insane or deaf and dumb woman or girl, under circumstances which do not amount to rape but where the offender knew or had good reason to believe, at the time of the offence, that the woman or girl was an idiot, or imbecile, or insane or deaf and dumb. 63-64 V., c. 46, s. 3. It has been held that, in the case of alleged rape on an idiot or lunatic the mere proof of connection will not warrant the case being left to the jury; that there must be some evidence that it was without her consent, e.g., that she was incapable, from imbecility, of expressing assent or dissent; and that if she consent from mere animal passion it is not rape. R. v. Connolly (1867), 26 U.C.Q.B. 317. Corroboration.]-See sec. 1002. Excluding public from court room.]—See sec. 645. 220. Every one is guilty of an indictable offence and liable Penalty. to a penalty not exceeding one hundred dollars and not less than ten dollars, or six months' imprisonment, 10 CRIM. CODE. (a) who, being the keeper of any house, tent or wigwam, (c) who, being an unenfranchised Indian woman, keeps, 2. Every person who appears, acts or behaves as master or mistress, or as the person who has the care or management, of any house, tent or wigwam in which any such Indian woman is or remains for the purpose of prostituting herself therein, is deemed to be the keeper thereof, notwithstanding he or she is not in fact the real keeper thereof. 55-56 V., c. 29, s. 190. Corroboration.]-See sec. 1002. Excluding public from court room.]—See sec. 645. Nuisances. 221. A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty's subjects. 55-56 V., c. 29, s. 191. Common law.]-This section is a statement of the common law in regard to indictable nuisances. The injury or annoyance must be to the whole community in general to constitute a common (i.e., a public) nuisance, and whether or not the number of persons affected is sufficient to make it a common nuisance is a question for the jury. R. v. White, 1 Burr. 337. The omission of an electric railway company operating their cars upon a highway to use reasonable precautions so as to avoid endangering the lives of the public using the highway in common with the company, is a breach of legal duty constituting a common nuisance for which an indictment will lie. R. v. Toronto Ry. Co. (1900), 4 Can. Cr. Cas. 4, 10 Can. Cr. Cas. 106. The carrying on of an offensive trade is indictable where it is destructive of the health of the neighbourhood or renders the houses untenantable. R. v. Davey, 5 Esp. 217; R. v. Neil, 2 C. & P. 485. But if a noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road, in those cases the party is entitled to continue his trade because it was legal before the erecting of the houses in the one case and the making of the road in the other. R. v. Cross, 2 C. & P. 483, per Abbott, C.J.; R. v. Nevill, Peake R. 93. If, however, the annoyance is much increased by the extension of the trade carried on, a conviction is proper. R. v. Watt, Moo. & Mal. N.P. 281. Manufacturing or keeping large quantities of gunpowder in towns or closely inhabited places is an indictable offence at common law. R. v. Williams, 1 Russ. Cr. 5th ed. 421; R. v. Taylor, 2 Str. 1167; Crowder v. Tinkler, 19 Ves. 617; and the same rule applies to the keeping and storing of large quantities of naphtha and rectified spirits of wine, the same being proved to be more inflammable than either spirits or gunpowder and there being no efficient means of putting out a fire if communicated to the premises. R. v. Lister, Dears. & B. 209, 26 L.J.M.C. 196. As to the illegal possession of explosives for an unlawful object, see sec. 114, ante. Nuisance by noise if sufficiently great is indictable. Walker v. Brewster, L.R. 5 Eq. 25; Bellamy v. Wells, 39 W.R. 158; Christie v. Davey, [1893] 1 Ch. 316; excepting, however, noise made in the exercise of statutory powers and without negligence. Harrison v. Southwark W.W. Co., [1891] 2 Ch. 409. Omission to discharge a legal duty.]—If the legal duty does not exist at common law, and a particular penalty is imposed by the statute creating the duty, the remedy by indictment for common nuisance is probably excluded. Bulbrook v. Goodere, 3 Burr. 1768; Saunders v. Holborn Board, [1895] 1 Q.B. 64, 61 L.J.Q.B. 101. The object with which the omission is made is immaterial if the probable result is to affect the public or any appreciable part of the public injuriously in any of the ways stated in the section. R. v. Moore, 3 B. & Ad. 184; R. v. Carlisle, 6 C. & P. 636; R. v. Lloyd, 4 Esp. 200; Barber v. Penley, [1893] 3 Ch. 447. Master's liability.]-Where works are so carried on as to be a nuisance, and the proprietor is indicted therefor, it has been held not to be a defence that he did not personally superintend the works and that he had given express orders to his employees that the works should be carried on in a manner which, had it been followed, would not have caused a nuisance. R. v. Stephens, L.R. 1 Q.B. 702. Time.]-The public have a right to demand the suppression of a common nuisance though of long standing. Weld v. Hornby, 7 East 199; Anonymous, 3 Camp. 227; Fowler v. Sanders, Cro. Jac. 446. But where the alleged nuisance relates to the carrying on of a trade, the fact that it has been of long standing militates against a finding of nuisance. 1 Russ. Cr. 5th ed. 442; R. v. Nevill, Peake R. 93; R. v. Smith, 4 Esp. 111. Abatement.]-See sec. 223. Highway repairs.]—Alterations authorized by statute to be made upon highways must be made with reasonable care and so as to cause no unnecessary danger to the travelling public or the parties doing the work may be indicted under this section. R. v. Burt, 11 Cox 339. 222. Every one is guilty of an indictable offence and liable Criminal to one year's imprisonment or a fine who commits any common common nuisances. nuisance which endangers the lives, safety or health of the public, or which occasions injury to the person of any individual. 55-56 V., c. 29, s. 192. |