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(a) without lawful excuse, neglects to perform any duty Not buryeither imposed upon him by law or undertaken by him ing the with reference to the burial of any dead human body or human remains; or, (b) improperly or indecently interferes with or offers any Indignity human body or human remains, body.

indignity to any dead
whether buried or not.

55-56 V., c. 29, s. 206.

At common law.]-Exposing the naked dead body of a child in or near the highway and within view therefrom is a common law nuisance. R. v. Clark, 15 Cox C.C. 171.

And to leave unburied the corpse of a person for whom the accused was bound to provide Christian burial, was an indictable misdemeanour, if the accused were shewn to have been of ability to provide such burial. R. v. Vann (1851), 2 Den. 325; R. v. Stewart, 12 A. & E. 773; Jenkins v. Tucker (1788), 1 H. Bl. 90.

It is also a common law misdemeanour to remove without authority a corpse from a grave in a church burial ground; R. v. Sharpe, Dears. & B. 160; 7 Cox 214; or to sell a dead body without lawful authority for the purpose of dissection. R. v. Lynn, 1 Leach 479, 1 R.R. 607; R. v. Gilles, R. & R. 366 (n); R. v. Cundick, Dowl. & Ry. 13; R. v. Duffin, R. & R. 365.

Stranger undertaking to bury.]—The neglect to decently bury a dead human body by a person who has undertaken to do so and has removed the body with that expressed intent is an indictable offence under this section, although such person was, apart from such undertaking, under no legal obligation in respect of the burial. R. v. Newcomb (1898), 2 Can. Cr. Cas. 255.

Coroner's right.1-A coroner has a legal right to direct a disinterment for the purposes of holding an inquest. R. v. Clerk (1702), Holt 167; R. . Bond (1716), 1 Str. 22; Jervis on Coroners, 6th ed. 37. Any disposition of a corpse to obstruct or prevent a coroner's inquest when one ought to be held is a common law misdemeanour. R. v. Stephenson, 13 Q.B.D. 331; R. v. Price, 12 Q.B.D. 247.

Vagrancy.

to dead

238. Every one is a loose, idle or disorderly person or Vagrant. vagrant who,

or

support.

(a) not having any visible means of subsistence, is found No visible wandering abroad or lodging in any barn or outhouse, means of in any deserted or unoccupied building, or in any cart or wagon, or in any railway carriage or freight car, or in any railway building, and not giving a good account of himself, or who, not having any visible means of maintaining himself, lives without employment;

(b) being able to work and thereby or by other means to Not mainmaintain himself and family, wilfully refuses or neglects taining

to do so;

family.

(c) openly exposes or exhibits in any street, road, highway Indecent or public place, any indecent exhibition;

exhibitions.

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(d) without a certificate signed, within six months, by a priest, clergyman or minister of the Gospel, or two justices, residing in the municipality where the alms are being asked, that he or she is a deserving object of charity, wanders about and begs, or goes about from door to door, or places himself or herself in any street, highway, passage or public place to beg or receive alms;

(c) loiters on any street, road, highway or public place, and obstructs passengers by standing across the footpath, or by using insulting language, or in any other way;

(f) causes a disturbance in or near any street, road, highway or public place, by screaming, swearing or singing, or by being drunk, or by impeding or incommoding peaceable passengers;

(g) by discharging firearms, or by riotous or disorderly conduct in any street or highway, wantonly disturbs the peace and quiet of the inmates of any dwelling-house near such street or highway;

(h) tears down or defaces signs, breaks windows, or doors or door plates, or the walls of houses, roads or gardens, or destroys fences;

(i) being a common prostitute or night walker, wanders in the fields, public streets or highways, lanes or places of public meeting or gathering of people, and does not give a satisfactory account of herself;

(j) is a keeper or inmate of a disorderly house, bawdy-
house or house of ill-fame, or house for the resort of prosti-
tutes;

(k) is in the habit of frequenting such houses and does not
give a satisfactory account of himself or herself; or,
(1) having no peaceable profession or calling to maintain
himself by, for the most part supports himself by gaming
or crime, or by the avails of prostitution. 55-56 V., c. 29,
s. 207; 63-64 V., c. 46, s. 3.

Describing the offence.]-A summary conviction for being "a loose, idle
person or vagrant" without specifying in what the vagrancy consisted under
Code sec. 207. is void for uncertainty. R. v. McCormack (1903), 7 Can. Cr.
Cas. 135, 9 B.C.R. 497.

In Quebec it has been held that a conviction under the vagrancy clauses of the Criminal Code must find that the accused is a loose, idle or disorderly person or vagrant and a conviction which merely declares that the accused was guilty of being drunk and causing a disturbance is invalid. R. v. Harkness (1906), 12 Can. Cr. Cas. 54, per Hutchinson, J.

The correctness of the decision in the Harkness Case is doubted. Section 238 gives an enlarged statutory meaning to the word vagrant and

includes with the definition many offences of varied description enumerated in its items (a) to (1) inclusive. It would seem more in harmony with the procedure of the Code and with the fundamental principles of criminal law that the accused should be charged in the information with the precise offence of the particular item of the statutory definition relied upon. The better way would no doubt be to charge that the accused is a vagrant in that he was found wandering abroad not having any visible means of subsistence and not giving a good account of himself, or (as the case may be) in that he caused a disturbance in a public place by being drunk, or other specific offence set out in sec. 238. Section 723 (3) declares that the description of any offence in the words of the Act creating the offence shall be sufficient, but this does not deprive the accused of his right to be informed of the nature, time and place of the offence to which he is called upon to plead.

(a)—No visible means of support.]-By a proviso in sec. 239 no aged or infirm person shall be convicted as a loose, idle or disorderly person or vagrant, for any reason coming within paragraph (a) of this section, in the county of which he has for the two years immediately preceding been a resident.

A person suspected of being a confidence man had registered at a hotel and on the same day was arrested at a railway station as a suspicious character. On his person were found two cheques one for $700 and another for $900 which were sworn to be such as are used by confidence men, also a mileage ticket nearly used up issued in the name of another person and $8 in cash. He offered no explanation of the cheques or ticket and gave no information about himself. It was held that he could not be properly convicted as a vagrant on the evidence. R. v. Bassett, 10 Ont. Prac. R. 386, per Osler, J. Before a person can be convicted under subsec. (a), he must have acquired in some degree a character which brings him within it as an idle person, who has no visible means of maintaining himself, for example, not "paying his way" or being apparently able to earn a livelihood but without means yet lives without employment. Ibid.

If the accused resides for a portion of the year with his parents at their request, they being able and willing to provide for his support, a conviction for vagrancy under Cr. Code sec. 238 (a) because "not having had any visible means of maintaining himself he had lived without employment" should be quashed. 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. R. v. Riley, 2 Can. Cr. Cas. 128.

(b)—Failure to maintain the family.]—In order to constitute a wilful refusal or neglect on the part of a husband to maintain his family, under Cr. Code sec. 238 (b), it is necessary that he should be under a legal obligation to do so, and his failure to maintain his wife, who had left him without valid cause and refused to return, is not an offence under that section. R. v. Leclair (1898), 2 Can. Cr. Cas. 297; Flannagan v. Overseers (1857), 3 Jurist N.S. 1103; Morris v. Edmonds, 18 Cox C.C. 627.

To constitute a wilful refusal or neglect by a husband to maintain his wife, there must be an absence of any reasonable ground for believing the refusal or neglect to be lawful. A husband who has been ordered by a civil court in an action brought by his wife for separation to pay to his wife an interim alimentary allowance is relieved from that liability in the Province of Quebec on proof that the wife is supporting herself by immorality, and a criminal prosecution against him for non-support will be

dismissed on the like proof. Anonymous case H

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Can. Cr. Cas. 163. (c)-Indecent exhibition in public place.]-Semble-The term "public place" includes a place to which the public have access only upon payment for admission, ex gr., a theatre. Ex parte Ashley, 8 Can. Cr. Cas. 328. See also Code sec. 208.

(d)-Begging.]-It must be shewn that the wandering about and begging is a mode of life with the accused, and the section does not apply where persons with regular occupations temporarily out of employment through a "strike" go about seeking public contributions in aid of a general fund to sustain the strikers and their families. Pointon v. Hill, 12 Q.B.D. 306.

(e)-Loitering, etc.]-A licensed cabman who contrary to a city ordinance loitered on the street near the entrance of a hotel and solicited passengers to hire his cab was held not within this provision where no obstruction of passengers was shewn. Smith v. The Queen, 4 Montreal L.R.

325.

As to religious gatherings on streets and highways and their regulation by local laws and by-laws. See R. v. Watson (1896), 6 Can. Cr. Cas. 331, and note ibid., page 338.

(f)-Causing disturbance.]—It is not sufficient to charge merely that the accused was drunk on a public street without alleging further that he caused a disturbance in such street by being drunk. Ex parte Despatie, 9 Legal News (Montreal) 387; R. v. Daly, 24 C.L.J. 157, 12 Ont. Prac.

411.

"Disturbing the inhabitants" of a town was held by Wilson, C.J., to mean annoying them, as by making a noise which interferes with the thoughts or proceedings of others. R. v. Martin (1886), 12 O.R. 800. It is distinguishable from the term "creating a disturbance," which applies either to raising a clamour, commotion, quarreling or fighting, and refers to conduct of the nature of a breach of the peace. Ibid. The disturbance should be of the nature of a nuisance. Thomson v. Mayor of Croydon, 16 Q.B. 708.

It may also be observed that the mere fact of drunkenness in a street is not sufficient to create an offence under sec. 238 (f), nor would the drunkenness and the making of a disturbance combined necessarily bring the case under the vagrancy clauses. Sub-section (f) declares a person a vagrant who causes a disturbance in a street, etc., by screaming, swearing or singing, or by being drunk, or by impeding or incommoding peaceable passengers. It is obvious that singing in a street road or public place is not necessarily a cause of disturbance and is not prohibited unless that result follows, and, in the same way, the state of drunkenness must cause a disturbance or it will not bring the drunken person within these sections of the Code. The offence of being drunk on a public street is a municipal one, regulated in many provinces by their municipal Acts and municipal by-laws passed thereunder.

Slandering a person in a restaurant open to the public is not an offence under sec. 238, either as an obstruction to passenger by using insulting language, or as a disturbance incommoding passengers. R. v. Mercier (1901), 6 Can. Cr. Cas. 44, 20 Que. S.C. 28.

(f)-Disorderly conduct in public place.]-A licensed saloon and billiard hall is a "public place" under Rev. Cr. Code, secs. 197 and 238, and a person causing a disturbance therein by being drunk is liable as a vagrant. The King v. Kearney (1907), 12 Can. Cr. Cas. 349.

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. Bell, 25 O.R. 272.

R. v.

(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

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