But in Quebec Province it has been held that a restaurant open to the public is not a "public place" within the meaning of this section. R. v. Mercier (1901), 6 Can. Cr. Cas. 44, 20 Que. S.C. 28.

A municipal by-law prohibiting profane swearing, etc., in any "street or public place" was held not to include a private office in a custom house. R. v. Bell, 25 O.R. 272.

(f)—Assembly in public street.]—The mere fact of holding a meeting in a street does not necessarily imply the impeding or incommoding of peaceable passengers, and proof of actual impeding or incommoding is essential to justify a conviction. Criminal Code, sec. 238 does not apply to persons of general good character, but is intended to apply to loose, idle and disorderly persons only. The King v. Kneeland, 11 Que. K.B. 85, 6 Can. Cr. Cas. 81.

(i)—Prostitutes.]—Sub-section (i) taken from the Vagrant Act, 32 & 33 Vict. (Can.) ch. 28, does not, on its true construction, declare that being a prostitute, etc., makes such persons liable to punishment as such, but only those who when found at the places mentioned, under circumstances suggesting impropriety of purpose, on request or demand are unable to give a satisfactory account of themselves. R. v. Arscott (1885), 9 O.R. 541, per Rose, J.; but see Arscott v. Lilley, 11 O.R. 153.

"A common prostitute wandering in the public streets should not be apprehended and taken to a lock-up without knowing what it is for. In the nature of things she should know, if she is taken up, what it is for. She is not to be taken at all, until she has failed to give a satisfactory account of herself. If she is not asked what business she, a common prostitute, has wandering in the streets, or why it is she is there, she may not know whether she is taken up for murder or for robbery, or for what other offence, or whether she is taken up for any offence at all; and she cannot suppose she is taken up for wandering in the streets, though she is a common prostitute, so long as she is conducting herself harmlessly and decently, and just as other people are conducting themselves. The conviction should allege that the woman was asked before she was taken, or at the time of her being taken, to give an account of herselfthat is of her wandering in the public streets, she being a common prostitute or night-walker-and that she did not give a satisfactory account of herself." R. v. Levecque (1870), 30 U.C.Q.B. 509.

(j)-Houses of ill-fame.]-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, 10 Mod. 63; R. v. Dixon, 10 Mod. 335; R. v. Warren (188), 16 O.R. 590.

Though the charge is general, yet at the trial evidence may be given of particular facts, and the particular time of doing them. Witnesses who speak simply to a general reputation without being able to point to anything particular, may easily attribute the character of a common bawdy house or a house of ill-fame to a house to which, however irregular may be the life of its inmates, the law does not affix that character. R. v. St. Clair (1900), 3 Can. Cr. Cas. 551 (Ont.).

A conviction for that the accused was on April 21 "and on divers other days and times during the month of April" the keeper of a disorderly house, based upon an information in like terms laid on April 29, is bad, because it may be read as inclusive of an offence committed subsequently to the laying of the information, and including the date of the conviction, as to which the prisoner was not charged on her trial before the convicting magistrate. R. v. Keeping (1901), 4 Can. Cr. Cas. 494 (N.S.).

It was held in R. v. Keeping (1901), 4 Can. Cr. Cas. 494, per Weather

be, J. (N.S.), that to give jurisdiction to a justice to punish on summary conviction the keeper of a disorderly house under the vagrancy clauses of the Code, the information must charge that the accused is a loose, idle or disorderly person or vagrant, and that it is not sufficient to charge simply that the person is a keeper of a disorderly house, although that fact constitutes the person a loose, idle or disorderly person or vagrant, by virtue of sec. 238. It may be doubted whether that view is correct, as by sec. 654(2) an information may be either in the Code form 3, or to the like effect.

A conviction should not be made upon a charge of keeping, or being an inmate of, a bawdy house upon evidence of general reputation only, and the prosecution should be required to produce proof of acts or conduct from which the character of the house may be inferred. R. v. St. Clair (1900), 3 Can. Cr. Cas. 551 (Ont. C.A.).

The conduct and statements of the inmates of an alleged bawdy house at the time of their arrest therein may properly be proved in support of the charge. Ibid.

Where the "keeper" is charged, the punishment may be, (a) on summary conviction before a justice, fine of $50 or six months' imprisonment, or both; (b) on summary trial under sec. 773, fine (including costs) $100 or six months' imprisonment, or both (Code sec. 781); (c) on trial under indictment, one year's imprisonment (Code sec. 228) or a fine in discretion, or both (Code sec. 1035).

A charge of "keeping a bawdy house for the resort of prostitutes" charges one offence only although keeping a bawdy house is itself an offence and so by virtue of sub-sec. (j) is the keeping of a house for the resort of prostitutes. R. v. McKenzie, 2 Man. R. 168.

In Alberta it has been held that a conviction by a police magistrate for being an inmate of a bawdy house and imposing a fine of over $50 but which with costs is less than $100 will be considered as a conviction upon summary trial under Part XVI. of the Code if the record of proceedings shews that the charge was reduced to writing and pleaded to by the accused although the conviction itself omits the words "being charged before me" provided in Form 55. R. v. Ames (1903), 10 Can. Cr. Cas. 52.

In Nova Scotia where a conviction made by a city police or stipendiary magistrate for being an inmate of a disorderly house follows the Code form 32 and does not recite that the accused was "charged" before him in the words of form 55, the inference was held to be that the prosecution is brought under the vagrancy clauses and not under the summary trials procedure. (Per Townshend, J.) R. v. Carter (1902), 5 Can. Cr. Cas. 401.

Where the proceedings are taken under the "summary convictions" procedure, a conviction inflicting a punishment in excess of that authorized on summary conviction cannot be supported in habeas corpus proceedings as a conviction on "summary trial" under which the punishment inflicted is authorized, notwithstanding that the magistrate was one authorized to hold a summary trial, and that the offence was of the class for which the consent to such trial is dispensed with by statute. (Per Townshend, J.) Ibid.

A conviction by a city stipendiary magistrate for the offence of being an inmate of a bawdy house need not expressly state on its face that the accused is a vagrant. R. v. Young (1906), 12 Can. Cr. Cas. 109 (N.S.).

(j)—Right of appeal.]—A special right of appeal is given (subject to an exception in Saskatchewan and Alberta) by sec. 797 on a summary

trial under Part XVI. in like manner as from a summary conviction under Part XV., where the charge is keeping or being an inmate or habitual frequenter of any disorderly house, house of ill-fame or bawdy house.

(k)-Frequenters of houses of ill-fame.]-Persons may be able to give the most satisfactory account of themselves although they may be in the habit of frequenting such houses. Arscott v. Lilley (1886), 11 O.R. 153, 181, 14 A.R. 283; R. v. Remon, 16 O.R. 560; R. v. Levecque, 30 U.C.Q.B. 509. As said by Wilson, C.J., in the Arscott. case:-"They may go to preach to, or to admonish the inmates, to visit them in sickness, to acquire statistical information, or for police purposes, or for the discovery of crime or criminals or their apprehension, or the recovery of stolen goods, or for the collection of rent or debts." 11 O.R. p. 181.

A conviction for being an unlawful frequenter is not good, it should be for being an habitual frequenter. R. v. Clark (1883), 2 O.R. 523.

(k)-Right of appeal on charge of frequenting.]-As to the right of appeal on a "summary trial" under secs. 773 and 774 for this offence, see sec. 797.

(1)—Supported by prostitution.]-A woman who is kept by a married man and who surrenders herself to sexual intercourse with him alone, does not come under the purview of sub-section (1). R. v. Rehe (1897), 1 Can. Cr. Cas. 63 (Que.).

In Gareau's case, Que. (cited 1 Can. Cr. Cas. 66) a woman had been convicted as a vagrant for having kept for more than three months a disorderly house, for the purposes of prostitution with a man who was not her husband and who paid her; and on a writ of habeas corpus the Court of Queen's Bench at Montreal unanimously held that the resorting to her room by only one man did not constitute it a disorderly house, and that her illicit intercourse with one man alone did not constitute prostitution within the meaning of the paragraph, and the conviction was consequently quashed.

(1)—Supported by gaming or crime.]—The evidence on a charge of vagrancy under Cr. Code 238 on the ground that the accused had for the most part supported himself by gaming and crime must shew that the gaming or crime took place during the time within or for which he is charged in the information with having been a vagrant. R. v. Riley (1898), 2 Can. Cr. Cas. 128.

Semble, although it may appear that part of the money by which the accused is supported with his parents had been acquired by him by his gaming, etc., prior to the time of the offence charged, and that the accused while so resident with his parents idled away his time in places of public resort, such does not justify a conviction for vagrancy. Ibid.

An accused person was summarily convicted under 32-33 Vict. (Can.), ch. 28, sec. 1, of being "a person, who, having no peaceable profession or calling to maintain himself by, but who does for the most part support himself by crime and then was a vagrant," etc. The evidence shewed that the defendant did not support himself by any peaceable profession or calling and that he consorted with thieves and reputed thieves, but the witnesses did not positively say that he supported himself by crime. It was held that it was not to be inferred that the defendant supported himself by crime; that to sustain the conviction there should have been statements that witnesses believed he got his living by thieving or hv aiding and acting with thieves or by such other acts and means as shewed he was pursuing crime. R. v. Organ, 11 Ont. Prac. 497, per Adam Wilson, C.J.

Penalty for vagrancy.

Proviso.

It is not to be assumed that because the accused has no visible occupation and is greatly addicted to gambling that the gambling contributes mainly to his support. R. v. Davidson, 8 Man. R. 325.

A conviction for vagrancy under Code sec. 207 (1) is not warranted where the accused had at the time of his arrest sufficient money for his immediate needs and had been regularly employed in another city until two months prior thereto, although he was shewn to have been an associate of pickpockets in the city from which he came. The King v. Collette, 10 Can. Cr. Cas. 286.

239. Every loose, idle or disorderly person or vagrant is liable, on summary conviction, to a fine not exceeding fifty dollars or to imprisonment, with or without hard labour, for any term not exceeding six months, or to both: Provided that no aged or infirm person shall be convicted for any reason within paragraph (a) of the last preceding section, as a loose, idle or disorderly person or vagrant in the county of which he has for the two years immediately preceding been a resident. 55-56 V., c. 29, s. 208; 57-58 V., c. 57, s. 1; 63-64 V., c. 46, s. 3.

Vagrancy.]-Vagrancy is not an indictable offence, but loose and idle persons were liable at common law to be apprehended and bound over for their good behaviour, and were liable to summary proceedings before justices of the peace under various early statutes in England. Then under the Code, and under the Revised Act respecting Public Morals, R.S.C. 1886, ch. 157 (sec. 8), from which the vagrancy clauses are derived, “inmates" as well as "keepers" of bawdy houses were made subject to summary prosecution as vagrants, and likewise any person who is an habitual frequenter of a bawdy house and who, on being asked by a peace officer to give an account of himself or herself when found there, fails to give a satisfactory account. R. v. Levecque, 30 U.C.Q.B. 509; R. v. Clark, 2 Ont. R. 523; R. v. Arscott, 9 Ont. R. 541; Arscott v. Lilley, 11 Ont. R. 153.

Inmates and frequenters of bawdy house.]-Although secs. 771 and 773 appear under the general heading given to Part XVI., i.e., "Summary trial of indictable offences," the inclusion therein of the offences of being an inmate of a bawdy house or being an habitual frequenter of same, must be taken as referring to the vagrancy clauses, secs. 238 and 239, and as providing an alternative procedure for the enforcement of those sections as well under the "summary trials" procedure, Part XVI., under the procedure by "summary convictions by justices" (Part XV.), as there are no other sections of the Code dealing with "inmates" and "frequenters."

as

It is submitted that the judicial officers empowered by sec. 771 to hold summary trials are given absolute jurisdiction to summarily try the offences of being an inmate or habitual frequenter of a bawdy house (sec. 774), whether or not such officers are constituted justices of the peace under their provincial laws, and that the penalty for such offenders is limited to that imposed by sec. 239. The contrary has, however, been held by Ritchie, J., of the Supreme Court of Nova Scotia, in The King v. Roberts (1901), 4 Can. Cr. Cas. 253.

In that case it was held that the extended jurisdiction by which magis

trates and certain other functionaries are empowered to summarily try that and other offences under Part XVI. of the Criminal Code, and to impose imprisonment up to six months and a fine not exceeding, with costs, $100, is not restricted as to the offence of being an inmate of a house of ill-fame by the fact that, if the accused had been prosecuted before such magistrate in his capacity of justice of the peace, under the "summary convictions" clauses for the similar offence of being a "vagrant" by reason of being such inmate, the fine could not have exceeded $50 in addition to six months' imprisonment. R. v. Roberts (1901), 4 Can. Cr. Cas. 253 (N.S.).

Keeping bawdy house.]-See note to sec. 228.

Information and particulars.]—The accused is entitled to know under which sub-section of sec. 238 he is charged, that is, what the facts are on which the prosecution relies, and it is not enough to charge simply that the accused is a loose, idle person or vagrant. R. v. McCormack (1903), 7 Can. Cr. Cas. 135, 9 B.C.R. 497.

Six months' imprisonment.]—This section only applies to authorize six months' imprisonment when imposed as the substantive punishment on summary conviction for keeping a bawdy house, and not as a means of enforcing payment of a fine. R. v. Stafford, 1 Can. Cr. Cas. 239 (N.S.).

If a fine imposed for an offence under this section either as the sole punishment or with the addition of imprisonment for a term not exceeding six months, the justice may by his conviction after adjudging payment of the fine order and adjudge that in default of payment thereof the defendant be imprisoned for any period not exceeding three months unless the fine and the expenses of conveying the defendant to gaol under the commitment for such default are sooner paid. Section 739 (b).

Instead of directing imprisonment on default of payment of the fine forthwith or within a limited time, the justice may, by his conviction, order and adjudge that on such default, the penalty shall be levied by distress and, if sufficient distress cannot be found, that the defendant be imprisoned for any period not exceeding three months unless the penalty and the expenses of the distress and of conveying the defendant to gaol are sooner paid. Section 739 (a).

If the justice making a summary conviction adjudges a pecuniary penalty and a distress to realize same, and in default of sufficient distress that the defendant be imprisoned, the costs of the distress and of conveying the defendant to gaol are not in the discretion of the justice, but must be included in the formal conviction. R. v. Vantassel No. 1 (1894), 5 Can. Cr. Cas. 128. The formal conviction may provide under sec. 739 (a) for the payment of the costs both of the distress and of conveying to gaol, although the minute of conviction does not include the costs of distress but merely directs imprisonment unless the penalty and costs and the costs of conveying to gaol are sooner paid. Ibid. And the omission of a provision for the costs of distress and conveying to gaol from the formal conviction will invalidate the conviction. R. v. Vantassel (No. 2) (1894), 5 Can. Cr. Cas. 133.

Excluding public from court room.]-At the trial of any person charged with an offence under paragraphs (1), (j) and (k), of sec. 238, the court or judge may order that the public be excluded from the room or place in which the court is held during such trial. Section 645.

Search warrants for vagrants.]-See sec. 643.

Commitment to house of industry, etc.]-Section 30 of the Prisons Act R.S.C. 1906, ch. 148, provides as follows:-"If provision is made therefor 12-CRIM. CODE.