A Treatise on Criminal Law as Applicable to the Dominion of Canada

Where the defendant, having been convicted at the Quarter Sessions on an indictment for forcible entry was fined; but that Court refused to order a writ of restitution, and the case was removed into the Queen's Bench by certiorari, and a rule obtained to shew cause why a writ of restitution should not be issued:-Held that it was in the discretion of this Court either to grant or refuse the writ; and, under the circumstances, the verdict being against the charge of the learned chairman, and he having declined to grant the writ, and the prosecutor's case not being favoured, it was refused. (a)

The Court of General Sessions, where the indictment is found, may, before trial, award a writ of restitution; but it is entirely in the discretion of the Court to grant or refuse such writ. (6)

But a Justice out of Sessions cannot award restitution on an indictment of forcible entry, or forcible detainer, found before him by the grand jury, at the Sessions. He can only do so if seized of the case out of Sessions, and after enquiry before a jury, on a regular inquisition. The statement that the Justices in Court, or out of Court, may award a writ of restitution only holds to the extent above-mentioned. (c)

If an indictment is brought at common law for a forcible entry, it is only necessary to state the bare possession of the prosecutor; but in such case no restitution follows the conviction. (d)

A mere trespass will not support an indictment for forcible entry. There must be such force, or show of force, as is calculated to prevent resistance. (e) But where the defendant, and persons with him, having entered a

(a) Reg. v. Wightman, 29 U. C. Q. B. 211.

(b) Boswell and Loyd, 13 L. C. R. 6.

(d) Rex v. M'Kreavy, 5 U. C. Q. B. O. S. 629, per Sherwood, J. (e) Rex v. Smyth, 1 M. & Rob. 155; 5 C. & P. 201.

dwelling-house through an open door, and one of the persons having been seen to push out the windows, the defendant himself taking them off the hinges, it was held that a conviction for forcible entry should not be disturbed. (a)

A wife may be guilty of a forcible entry into the dwelling-house of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful. (b)

· Nuisances.-It has been said there are three kinds of nuisances-namely, public, common, and private. (c)

To constitute a public nuisance, the thing complained of must be such as, in its nature or its consequences, is a nuisance, an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree. (d)

Throwing noxious matter into Lake Ontario, or any other public navigable water, is a public nuisance, and the person guilty thereof is liable to an indictment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly injured. (e) So obstructions to navigable rivers are public nuisances (f) So if one person has a mill, by prescription, in his soil, and another erects a mill upon his soil, by which the stream to the mill of the former is straitened or stopped, or by which too great a quantity of water runs thereto, so that the mill is endangered, and cannot grind as much as it was wont, this is a nuisance. to the mill. (g)

The collection of a crowd of noisy and disorderly

(a) Reg. v. Martin, 10 L. C. R. 435.

(b) Rex. v. Smyth, 1 M. & Rob. 155; Arch. Cr. Pldg. 849.

(d) Ib; Reg. v. Meyers, 3 U. C. C. P. 333, per Macaulay, C. J.

(e) Watson v. City Toronto Gas and Water Co., 4 U. C. Q. B. 158.

(f) Brown and Gugy, 14 L. C. R. 213.

(g) Mills v. Dixon, 4 U. C. C. P. 227, per Macaulay, C. J.

people, to the annoyance of the neighbourhood, or outside grounds, in which entertainments with music and fireworks are given, for profit, is a nuisance, for which the giver of the entertainment is liable to an injunction, even although he has excluded all improper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police. (a)

It seems that a person who is annoyed by the noise of horses kicking in a stable contiguous to his dwelling, and by the stench from the manure, etc., cannot maintain an indictment to remove it. (b)

All disorderly houses are public nuisances, and may be indicted. (c) Where the defendants, as master and mistress resided in a house to which men and women resorted for the purpose of prostitution, but no indecency or disorderly conduct was perceptible from the exterior of the house-Held that the defendants were guilty of keeping a disorderly house. (d) But a conviction, under the 32 & 33 Vic., c. 32, for keeping a house of ill fame, or being an inmate of such a house, adjudicating that the accused should pay a fine of $50 forthwith, and be imprisoned for three months, unless the fine be sooner paid, is not warranted by s. 17 of the Statute, for imprisonment is only authorized by the Act, when it has been awarded as a substantive punishment. (e)

It would seem that though a Magistrate may have a general jurisdiction to hear any complaint against a disorderly inn or house, he has no right to issue a warrant to arrest a casual guest, quietly visiting a licensed tavern as a guest, at a time subsequent to the charge, and in no

(a) Walker v. Brewster, L. R. 5 Eq. 25.

(b) Laurason v. Paul, 11 U. C. Q. B. 537, per Robinson, C. J.

(d) Reg. v. Rice, L. R. 1 C. C. R. 21; 35 L. J. (M. C.) 93. (e) Re Slater, 9 U. C. L. J. 21.

way present at or assisting in any disturbance or disorder, and this though the information charges the house to be a common disorderly ill-governed house, and a common nuisance in the neighbourhood, and the warrant is to apprehend the keeper thereof, and all others found therein. (a)

In general, all open lewdness, grossly scandalous, is indictable at common law, and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (b)

The prisoners were convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath:-Held that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. (c)

By the 10 & 11 Wm. 3, c. 17, all lotteries are declared to be public nuisances. (d) Where one hundred and forty-nine lots of land were sold by lottery, the person getting No. 1 ticket to have the first choice:-Held that this was a lottery, though it did not appear there was any difference in the value of the lots. The lottery consisted in having a choice of the lots, and that choice was to be determined by chance. (e) A sale of land by lot, in which there are two prizes, comes within the Imp. Stat. 12 Geo. 2, c. 28. (ƒ)

So the non-repair of a highway, or the obstruction thereof, is a nuisance, indictable at common law. (g)

A dam erected on a stream, without a proper apron or slide, in accordance with the 12 Vic., c. 87, is such a

(a) Cleland v. Robinson, 11 U. C. C. P. 421, per Hagarty, J.

(b) Russ. Cr. 449.

(d) Cronyn v. Widder, 16 U. C. Q. B. 361, per Robinson, C. J.

(e) Power v. Canniff, 18 U. C. Q. B. 403.

(f) Marshall v. Platt, 8 U. C. Č. P. 189.

(g) Reg. v. Corporation Paris, 12 U. C. C. P. 450, per Draper, C. J.

private nuisance to the owners of saw logs ready to pass, but prevented from passing thereby, as may be abated by them. (a)

The proper remedy for a public nuisance is by indictment. And where an obstruction of a navigable river is an injury common to all the Queen's subjects who have occasion to use the stream, and is, consequently, a public nuisance, a person sustaining no actual particular damage cannot maintain an action therefor, but the proper remedy is by indictment. (b)

An indictment is the proper remedy in all cases, except when a charter, which is assumed to be a contract between the parties obtaining it and the public that the road will be constructed, has been obtained to construct the road, and the work has never been done, in which latter case the proper remedy is mandamus.

A mandamus nisi having issued to compel a municipal corporation to repair and build a bridge, it appeared, on the return, that the liability was disputed on several grounds, it being contended that the bridge did not belong to the defendants, that it was not constructed on the site provided by the charter of the original company which built it, and was in an unfit and dangerous place, and that it should be repaired by another municipality : -Held that, under these circumstances, a mandamus would not lie, and that the applicants must proceed by indictment. (c)

The circumstance that the thing complained of furnishes, on the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance. (d) As to highways, the test, irrespective of

(a) Little v. Ince, 3 U. C. C. P. 545-6.

(b) Small v. G. T. R. Co. 15 U. C. Q. B. 283.

(d) Reg. v. Bruce, 10 L. C. R. 117; Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J.; R. v. Ward, 4 A. & E. 384, 6 Nev. & M. 38.

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