Non-criminal common nuisances. Common law indictment.]-An indictment for a nuisance in obstructing a public highway is insufficient to charge a criminal offence under this section if it does not allege danger to the public or injury to the person of some one; and personal injury is not to be inferred from a count which states "actual" injury to a person named. Obstruction of a highway is indictable at common law although injury to the person has not resulted, if it constitutes a common nuisance to His Majesty's subjects passing along the same; but since the Criminal Code the procedure by indictment where there has been no personal injury, remains only for the purpose of abatement or remedy of the nuisance. An indictment at common law for a nuisance in obstructing a highway must contain the words "to the common nuisance of all His Majesty's subjects passing, etc., along such highway," and must particularize the highway and the nature of the obstruction. The King v. Reynolds (1906), 11 Can. Cr. Cas. 312. See also sec. 284 as to negligently causing bodily injury. 223. Any one convicted upon any indictment or information for any common nuisance other than those mentioned in the last preceding section, shall not be deemed to have committed a criminal offence; but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right. 55-56 V., c. 29, s. 193. Other common nuisances not criminal.]-Quære whether the intention of Parliament was simply to declare by this section that the remedy by abatement should apply to the exclusion of other and more rigorous modes of punishment incident to "criminal offences." A strict construction of the words declaring that persons convicted of other common nuisances shall not be deemed to have committed "criminal offences" seems to place the excluded class of cases wholly outside of the criminal law and to relegate that class to provincial jurisdiction. So long as the nuisance is dealt with as a criminal offence, the Parliament of Canada would have undoubted jurisdiction to deal with the remedy by abatement or otherwise. But viewed as a non-criminal offence, the provincial law prior to admission into Confederation would become applicable subject to the legislation of the Provincial Legislature since Confederation. The latter portion of the section as to proceedings being, taken as heretofore for abatement may, in this view, be considered as a saving clause (probably unnecessary) to preserve the common law remedy of indictment in such cases, subject to provincial legislation. In a recent Nova Scotia case, Judge Graham said: "After the Parliament of Canada has divided nuisances into those which constitute criminal offences and those which do not, one cannot probably look in the Statutes of Canada for further provisions on the subject of those nuisances which are not criminal offences. We have to look to the proceedings which, before the existence of the Criminal Code, might be taken to abate or remedy the mischief, that is, to the common law." R. v. Reynolds (1906), 11 Can. Cr. Cas. 312. As to the power of a local Legislature to declare an offence a "nuisance" and to provide the punishment when it would not per se be indietable at common law, see Pillow v. City of Montreal (1885), Mont. L.R. 1 Q.B. 401. Abatement of nuisance.]—If the nuisance is alleged in the indictment to be still continuing the judgment may direct that the defendant shall remove it at has own cost. 1 Hawk., ch. 75, sec. 14. A railroad company was found guilty on an indictment for a nuisance by obstructing a public highway, by lowering the same at a point of intersection and thereby making the highway dangerous. Time having elapsed, and nothing having been done to abate the nuisance, a motion was made for judgment on the verdict, and it was held that the proper sentence was that defendants should pay a fine, and that the nuisance complained of be abated. R. v. The Grand Trunk Railway Co. (1858), 17 U.C.Q.B. 165. It is the duty of a municipality, in whom a highway is vested, to see that obstructions on the highway are removed. R. v. Cooper (1876), 40 U.C.Q.B. 294. It is a nuisance also to obstruct the navigation of a public river, but it is a question for the jury in each case to determine whether or not the erection of a bridge or wall partly in the river constitutes an actual obstruction. R. v. Betts, 16 Q.B. 1022. A permanent obstruction erected upon a highway without lawful authority and which renders the way less commodious than before to the public is a common nuisance, although the safety of the public is not endangered. R. v. United Kingdom Telegraph Co., 31 L.J.M.C. 166. And this notwithstanding the fact that sufficient space was left for traffic and that the telegraph poles which constituted the obstruction were not placed on the travelled portion of the road. Ibid. Where a county council is liable to repair a bridge, the proper remedy is inductment, not mandamus. Re Jamieson and County of Lanark (1876), 38 U.C.Q.B. 647. Where land, which was part of the lands reserved to the Hudson's Bay Company was sold in a state of nature to a purchaser, who obtained a certificate of ownership therefor under the Territories Real Property Act, and cultivated and enclosed it, thus preventing the use of an old trail, which, subsequently, was surveyed and transferred to the LieutenantGovernor for the use of the Territories. Held, that the purchaser was rightly convicted of obstructing a public highway. The Queen v. Nimmons (1892), 1 Terr. L.R. 415. Costs.]-If a municipality found guilty of maintaining a nuisance by not repairing a highway, makes default under the judgment ordering abatement thereof, but repairs the highway pending a motion for a writ of de nocumento, the court may in its discretion order the costs of the motion to be paid by the defendant. The King v. Portage la Prairie, 10 Can. Cr. Cas. 125. Where an indictment for obstructing a highway had been removed by certiorari, at the instance of the private prosecutor into the Court of Queen's Bench and defendant was acquitted, it was held that the court had no power to impose payment of costs on such prosecutor, except as a condition of any indulgence granted in such a case, such as a postponement of the trial, or a new trial. R. v. Hart (1880), 45 U.C.Q.B. i. 224. Every one is guilty of an indictable offence and liable Knowingly to one year's imprisonment who knowingly and wilfully exposes selling unft for sale, or has in his possession with intent to sell, for human food articles which he knows to be unfit for human food. food. Penalty for 2. Every one who is convicted of this offence after a previous subsequent conviction for the same crime shall be liable to two years' imprisonment. 55-56 V., c. 29, s. 194. offence. Common bawdyhouse defined. At common law.]-The selling of food which is dangerous or unfit for human food with knowledge of the fact is an offence at common law. R. v. Dixon (1814), 3 M. & Sel. 11; 15 R.R. 381; Shillito v. Thompson (1875), 1 Q.B.D. 12. If death ensues from eating such food, the seller knowing that it is dangerous is indictable for manslaughter. R. v. Stevenson (1861), 3 F. & F. 106; R. v. Kempson (1893), 28 L.J. (Eng.) 477. Procedure.]-It is not competent for magistrates where an information charges an offence under this section which they have no jurisdiction to try summarily, to convert the charge into one under a municipal by-law which they have jurisdiction to try summarily, and to so try it on the original information. R. v. Dungey (1901), 5 Can. Cr. Cas. 38. Adulterated foods and drugs.]-Other provisions regarding the adulteration of foods and drugs and the sale or exposure for sale of the adulterated article are contained in the Adulteration Act (Canada). 225. (As amended, 1907). A common bawdy-house is a house, room, set of rooms or place of any kind kept for purposes of prostitution, or occupied or resorted to by one or more persons for such purposes. 55-56 V., c. 29, s. 195; 6 & 7 Edw. VII., c. 8. Bawdy house with only one occupant.]—Since the amendment of 1907 the numerous decisions under the old section, holding that the use of the house by more than one prostitute was essential to the offence, are no longer applicable. See R. v. Young (1902), 6 Can. Cr. Cas. 42; R. v. Osberg, 9 Can. Cr. Cas. 180, 15 Man. R. 147; R. v. Mannix, 10 Can. Cr. Cas. 150, 10 O.L.R. 303. At common law. ]-The keeping of a bawdy house is a nuisance at com. mon law, on the ground beth of its corrupting public morals and its endangering the public peace by reason of dissolute persons resorting thereto. 1 Russell on Crimes, 5th ed., 427; Hawkins Pleas of the Crown, b. 1, ch. 47, sec. 1. It is immaterial whether perceptible from the outside. L.R. 1 C.C.R. 21. indecent or disorderly conduct is or is not Steph. Crim. Law, 122; R. v. Rice (1866), The term "house of ill-fame" is synonymous with "bawdy house," Century Dict., verb, "house." The common law punishment was by fine or imprisonment, but without hard labour. A feme covert may be guilty of the offence as well as if she were a feme sole, for the keeping the house does not necessarily import property but may signify that share of government which the wife has in a family as well as the husband. R. v. Williams (1712), 1 Salk. 383. Bawdy house defined.]-The statutory definition of a "common bawdy house" contained in this section of the Code is intended merely to define the nature of the premises within which a bawdy house may be kept, and not as stating what acts constitute such keeping. R. v. Osberg, 9 Can. Cr. Cas. 180; R. v. Mannix, 10 Can. Cr. Cas. 150, 10 O.L.R. 303. In The King v. Shepherd (1902), 6 Can. Cr. Cas. 463, Townshend, J., of the Supreme Court of Nova Scotia, held that a conviction by a magistrate on a summary trial for keeping a common bawdy house need not specify the location of the house further than to shew that it was at a place within the jurisdiction of the court, and that a conviction for keeping a common bawdy house is sufficient without the addition of particulars shewing what part of the statutory definition here given is the basis for the adjudication. But in the same case, upon another writ of habeas corpus, Weatherbe, J., held that this section enlarges the meaning of the term "common bawdy house," and that it is necessary that a conviction for keeping "a disorderly house, that is to say a bawdy house," should shew further particulars of the offence by specifying what was the subject of the keeping for purposes of prostitution, i.e., whether a "house," "room," "set of rooms," or other "place,” so as to come within the definition. A tent, shed or camp, or other place, may be brought within the Act, provided it be used for the purpose as defined by the Act. 9 Am. & Eng. Ency. of Law, 2nd ed., p. 512; R. v. Shepherd (1902), 6 Can. Cr. Cas. 463. 226. A common gaming-house is, Common house (a) a house, room or place kept by any person for gain, to gamingwhich persons resort for the purpose of playing at any defined. game of chance, or at any mixed game of chance and skill; or, (b) a house, room or place kept or used for playing therein (i) a bank is kept by one or more of the players exclu- (ii) any game is played the chances of which are not only being played there 2. Any such house, room or place shall be a common Effect of gaming-house, although part only of such game is played there part of game and any other part thereof is played at some other place, either in Canada or elsewhere, and although the stake played for, or or stake any money, valuables, or property depending on such game, is in some other place, either in Canada or elsewhere. 55-56 V., c. 29, s. 196; 58-59 V., c. 40, s. 1. At common law.]-The maintenance of common gaming houses was punishable as a nuisance at common law on the ground that they are detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness and avaricious ways of gaming property, great numbers whose time might otherwise be employed for the good of elsewhere. the community. Jenks v. Turpin (1884), 13 Q.B.D. 505, 514; Russell on Crimes, 1896, 6th ed. 1, 741. Evidence.]-It makes no difference that the use of the house and the gaming therein was limited to the subscribers and members of a club, and that it was not open to all persons who might be desirous of using the same; a common gaming house is that which is forbidden—that is, a house in which a large number of persons are invited habitually to congregate for the purposes of gaming. Per Hawkins, J., in Jenks v. Turpin (1884), 13 Q.B.D. 505, 516. Proof that a game with cards, dice and "chips" was being played by several people seated at tables, each player procuring the "chips" from the accused, the proprietor of the place, and handing over to him the money therefor and that the accused said that the game was "fan tan" and that he was "doing well out of it," is evidence that the game was a game of chance and that the place was being kept by the accused "for gain" under Code secs. 196 and 198. R. v. Mah Kee (1905), 9 Can. Cr. Cas. 47 (N.W.T.). Proof that persons other than those resident at or belonging to the house, room or place at which the proprietor operates for gain a game of chance or a mixed game of chance and skill, were in attendance there and participated in such game is evidence that such persons "resorted" to such place for the purpose of playing such game, and of the place being a common gaming house under secs. 226 and 228. Ibid. The keeping of a house, room or place for playing a game of chance or mixed game of chance and skill in which the chances of the game are in favour of the player who is the dealer or banker therein for the time being, is an indictable offence under secs. 226 and 228, if the position of dealer or banker passes from one player, to another by the chances of the game and not by rotation. R. v. Petrie (1900), 3 Can. Cr. Cas. 439 (B.C.). A magistrate might reasonably decide that a room was a common gaming house if it is commonly used or adopted for gaming, frequented by many people promiscuously, especially if by many various persons, by a fortuitous concourse, or without the necessity of any direct or personal invitation from the occupier or other person legally entitled to the sole enjoyment of the room or place, and if thereby a general opportunity of gaming was afforded though without any fixed intention or invitation to do so. Per Begbie, C.J., in R. v. Ah Pow (1880), B.C.R., pt. 1, p. 152. Such an establishment will be a common gaming house though a large part of the general public are excluded by keys or watch-words, or in any other manner. Ibid; R. v. Laird (1894), 3 Rev. de Jur. (Que.) 389. Euchre is a game of chance, and not a game of mere skill. R. v. Laird (1903), 7 Can. Cr. Cas. 318 (Ont.). The proprietor of a place in which the game known as "darts" is carried on under conditions which make the chances of the proprietor much more favourable than that of the customers is properly convicted of keeping a gaming house. R. v. Cashen (1906), 11 Can. Cr. Cas. 183 (N.S.). It is a question of fact and not of law whether the use of a slot machine for selling cigars, whereby customers obtained for the one price a number of cigars varying according to the working of the machine, is or is not a game of chance, a mixed game of chance and skill, or a game of skill only. The King v. Fortier (1903), 7 Can. Cr. Cas. 417 (Que.). The proprietor of a place in which a cane and ring game is carried on under conditions which make the chances of the proprietor much more favourable than that of the customer is properly convicted of keeping a gaming house. The King v. Russell, 11 Can. Cr. Cas. 180. |