Prosecution within six months]—The limitation period is six months under sec. 1142, and a complaint alleging a period of two years as the time of the offence is bad if no act is alleged as within the prescriptive period of six months. R. v. St. Armand (1915), 25 Can. Cr. Cas. 103.

Exclusion of public from trial of prostitute charge]-Where the offence is under sub-sec. (i) of sec. 238, the public may be excluded from the trial. Sec. 645.

Imprisonment not exceeding six months]-This limitation applies only to the imprisonment awarded as the penalty or part of the penalty for the offence, and not to the enforcement of the fine and costs, if such are awarded. See Code sec. 735, 737-739; R. v. Stafford, 1 Can. Cr. Cas. 239 (N.S.); R. v. Van Tassel, 34 N.S.R. 179, 5 Can. Cr. Cas. 128, 133.

Enforcing payment of fine]—Code sec. 739.

Warrant of commitment]-No minute of the order need be served as specified under sec. 731 as to orders" of justices, as that section does not apply to summary convictions but to summary orders only. Re Effie Brady (1913), 3 W.W.R. 914, 23 W.L.R. 333, 21 Can. Cr. Cas. 123 (Alta.).

Commitments to houses of industry, etc.]—See the Prisons Act, R.S.C. 1906, ch. 148 and amending Acts. Sec. 30 of that Act enacts that if provision is made therefor by the laws of the province in which the conviction takes place, any person convicted of being a “loose, idle or disorderly person," may, instead of being committed to the common gaol or other public prison, be committed to any house of industry or correction, almshouse, workhouse, or reformatory prison.

Sentence of female to the Reformatory in Ontario]—Whenever any female is convicted in Ontario under sec. 239 of the Code, or is convicted under Part XVI, of an offence triable under that Part, she may be sentenced to the Reformatory for an indefinite term less than two years, and if any term exceeding six months is inflicted, no fine shall be imposed in addition. The Prisons Act, R.S.C., ch. 148, sec. 57, as amended, 3-4 Geo. V, 1913, ch. 39, sec. 3.

PART VI.

OFFENCES AGAINST THE PERSON AND REPUTATION.

Definitions.

Interpretation.

240. In this Part, unless the context otherwise requires,(a) form of marriage' includes any form either recognized

as a valid form by the law of the place where it is
gone through, or which, though not so recognized, is
such that a marriage celebrated there in that form is
recognized as binding by the law of the place where
the offender is tried;

(b) 'guardian' includes any person who has in law or in
fact the custody or control of any child referred to;
(c) 'abandon' or 'expose' includes a wilful omission to
take charge of any child referred to on the part of a
person legally bound to take charge of such child, as
well as any mode of dealing with it calculated to
leave it exposed to risk without protection.

Origin]—Sub-sec. (a) from Code of 1892, sec. 275; sub-sec. (b) from Can. Stat., 1900, ch. 46, sec. 3; sub-sec. (c) from Code of 1892, see, 216.

Duties Tending to the Preservation of Life.

Duty of person in charge to provide necessaries of life.-Criminal responsibility.

241. Every one who has charge of any other person unable by reason either of detention, age, sickness, insanity or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is, whether such charge is undertaken by him under any contract, or is imposed upon him by law, or by reason of his unlawful act, under a legal

duty to supply that person with the necessaries of life, and is criminally responsible for omitting, without lawful excuse, to perform such duty if the death of such person is caused, or if his life is endangered, or his health has been or is likely to be permanently injured, by such omission.

Origin]-Sec. 209, Code of 1892.

Duty of parent, guardian or head of family]-Code secs. 242, 242A, 242B.

Non-support of wife]-Code secs. 242, 242A, 242B.

Criminal responsibility of person to maintain another of whom he has charge who is unable to provide for himself]-If a person having the care and custody of another who is helpless, neglects to supply him with the necessaries of life, and thereby causes or accelerates his death, he was guilty of a criminal offence even before the statute. R. v. Nasmith (1877), 42 U.C.Q.B. 242. But if a person over the age of sixteen and having the exercise of free will, chose to stay in a service where bad food and lodging were provided, the master was not criminally responsible if the neglect was not premeditated and did not continue to a period when the servant was helpless and dependent because of disease or otherwise. R. v. Friend, Russ. & Ry. 20; R. v. Ridley, 2 Camp. 650; R. v. Brown, 1 Terr. L.R. 475. R. v. Charlotte Smith, 10 Cox 94; Code sec. 243.

If the neglect was premeditated and there has been a deliberate omission to supply food to the helpless person in the custody or charge of the accused and death results from the omission, it is murder. R. v. Condé, 10 Cox C.C. 547; R. v. Bubb, 4 Cox C.C. 457; R. v. Self, 1 Leach 137; but if by gross neglect and without deliberate intent, the offence is only manslaughter. R. v. Dalke (1915), 33 W.L.R. 113, 25 Can. Cr. Cas. 98; R. v. Instan [1893] 1 Q.B. 450; R. v. Senior [1899] 1 Q.B. 283. If a grown-up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without wicked negligence; and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence that person is guilty of manslaughter. R. v. Nicholls, 13 Cox C.C. 75. In such a case mere negligence will not establish the offence of manslaughter; there must be wicked negligence, that is, negligence so great as to satisfy a jury that the prisoner had a wicked mind in the sense that he was reckless and careless whether the creature died or not. Ibid., per Brett, J.

If the death of an apprentice labouring under disease is caused by want of care of and harsh treatment by the master who has charge of him the master is guilty of murder. R. v. Squire, 3 Russ. Cr. 6th ed., 13.

As to failure to supply a midwife's services, see R. v. Shepherd, 31 L.J.M.C. 102.

R. v. Brooks (1902), 9 B.C.R. 13, 5 Can. Cr. Cas. 372, 1 Brit. R.C. 725; R. v. Lewis (1903), 6 O.L.R. 132, 7 Can. Cr. Cas. 261, 1 Brit. R.C. 732. Compare R. v. Senior [1899] 1 Q.B. 283, 68 L.J.Q.B. 175.

The language of sec. 243 as to the duty of servants and apprentices when their condition is such that they are not brought within the operation of sec. 241, is more restricted, the words there used being necessary food, clothing or lodging."

Care and attention to prevent an invalid's death from exposure are also "necessaries," R. v. Dalke (1915), 33 W.L.R. 113, 25 Can. Cr. Cas. 98, and see secs. 242 and 242A.

"Without lawful excuse "]-Conscientious scruples on the part of the accused against calling in medical aid for any physical ailment, will not constitute a lawful excuse. R. v. Brooks (1902), 9 B.C.R. 13, 5 Can. Cr. Cas. 372, 1 Brit. R.C. 725; R. v. Lewis (1903), 6 O.L.R. 132, 7 Can. Cr. Cas. 261, 1 Brit. R.C. 732; R v. Senior [1899] 1 Q.B. 283, 68 L.J.Q.B. 175; R. v. Morley, 8 Q.B.D. 571; R. v. Instan [1893] 1 Q.B. 450.

An inference that the accused had means wherewith to provide at the date of the offence, may be drawn from proof that he had means at a prior date so close that the jury could properly infer that the means were not exhausted at the time of the offence. R. v. Jones (1901), 19 Cox C.C. 678.

The phrase

"without lawful excuse," is also used in secs. 229, 237, 242, 242A, 243, 244, 246, 247, 248, 252.

Culpable homicide]-Code secs. 252, 259-262.

Where the child's death ensued after conviction for the neglect, a subsequent conviction for manslaughter was upheld in R. v. Tonks [1915] W.N. 387, 32 Times L.R. 137; and see R. v. Tonks [1916] 1 K.B. 443, 85 L.J.K.B. 396, 11 Cr. App. R. 284.

Punishment where not culpable homicide]-Code sec. 244.

Duty of head of family to provide necessaries.—Criminal responsibility.

242. Every one who as parent, guardian or head of a family is under a legal duty to provide necessaries for any child under the age of sixteen years is criminally responsible for omitting, without lawful excuse, to do so while such child remains a member of his or her household, whether such child is helpless or not, if the death of such child is caused, or if his life is endangered, or his health is or is likely to be permanently injured, by such omission.

2. Every one who is under a legal duty to provide necessaries for his wife, is criminally responsible for omitting, without lawful excuse so to do, if the death of his wife is caused, or if her life is endangered, or her health is or is likely to be permanently injured, by such omission.

Origin]-Sec. 210, Code of 1892; 32-33 Vict., Can., ch. 20, sec. 25, 24-25 Vict., ch. 100, sec. 26.

"Guardian "]-Sec. 240 (c).

“Head of a family "]—The case of a master under a contract for a child's services in return for his maintenance is not within sec. 242, but comes under sec. 243. R. v. Coventry, 3 Can. Cr. Cas. 541.

66

"

"Under a legal duty to provide "]-Secs. 241 and 243 impose and declare under the sanction of federal criminal law, the legal duty incident to certain circumstances, but in the main it is left to the provincial- legislatures to regulate the legal duty as a matter of civil rights. Necessaries]-What are to be considered as necessaries under Code sec. 242, must be determined by the circumstances of each particular case. R. v. Sidney (1912), 2 W.W.R. 761, 20 Can. Cr. Cas. 376 (Sask.). The term "necessaries" is to be read in connection with the general heading "duties tending to the preservation of life" and is to be given an interpretation in harmony therewith. R. v. Brooks (1902), 9 B.C.R. 13, 5 Can. Cr. Cas. 372, 1 Brit. R.C. 725; R. v. Sidney, supra. “Necessaries" have been held to include food, clothing, shelter and medical attendance. R. v Sidney (1912), 2 W.W.R. 761, (Sask.), citing R. v. Lewis, 7 Can. Cr. Cas. 261, 6 O.L.R. 132, 1 Brit. R.C. 732; R. v. Wolfe (1908), 13 Can. Cr. Cas 246 (N.S.); R. v. Nasmith (1877), 42 U.C.Q.B. 242.

In deciding whether there has been criminal neglect in refusing to permit a surgical operation, the nature of the operation and the reasonableness of the refusal to have it performed are to be considered. Oakey v. Jackson, 30 T.L.R. 92 [1914] 1 K.B. 216.

At the common law, even the father was under no civil obligation to supply his infant children with necessaries not required for the preservation of life. See Bazeley v. Forder (1868), L.R. 3 Q.B. 559, at p. 565. That obligation was first imposed by 43 Eliz., ch. 2 (a poor law statute, not in force in Ontario), which imposed a similar obligation upon the widowed mother, if of sufficient means. But the common law did impose a duty, not only upon parents, but upon every one of sufficient means having the care and custody of another who was helpless, to supply necessaries required for the preservation of life, for the breach of which such person was made criminally responsible. And this is the duty which sec. 242, sub-sec. 1, of the Criminal Code recognizes, in the words: "Every one who as parent, guardian or head of a family is under a legal duty to provide necessaries for any child under the age of sixteen