Escape by failure to perform legal duty.

193. Every one is guilty of an indictable offence and liable to one year's imprisonment, who, by failing to perform any legal duty, permits a person in his lawful custody on a criminal charge to escape therefrom.

Origin]-See. 166A, Code of 1892; 63-64 Vict. Can. eh. 46, sec. 3.

Officer permitting escape of person in custody]—The section is aimed at negligent conduct from which an escape results. R. v. Shuttleworth, 22 U.C.R. 372.

A person who has power to bail is guilty of negligent escape by bailing one whom he knows is not bailable: Russell on Crimes and Misdemeanours, 7th ed., vol. 1, p. 557; R. v. Rapp, 23 Can. Cr. Cas. 203, 208, per Riddell, J.

Escape by conveying things into prison.

194. Every one is guilty of an indictable offence and liable to two years' imprisonment who with intent to facilitate the escape of any prisoner lawfully imprisoned conveys, or causes to be conveyed, any thing into any prison.

Origin]-Sec. 167, Code of 1892.

"Prison "1-See sec. 2, sub-sec. (30).

Causing discharge of prisoner under pretended authority.

195. Every one is guilty of an indictable offence and liable to two years' imprisonment who knowingly and unlawfully. under colour of any pretended authority, directs or procures the discharge of any prisoner not entitled to be so discharged," and the person so discharged shall be held to have escaped.

Origin]-See. 168, Code of 1892; R.S.C. 1886, ch. 155, sec. 8.

Full term to be served when retaken.

196. Every one who escapes from custody, shall, on being retaken, serve, in the prison to which he was sentenced, a term equivalent to the remainder of his term unexpired at the time of his escape, in addition to the punishment which is awarded for such escape.

2. Any imprisonment so awarded may be to the penitentiary or prison from which the escape was made.

Origin]-Sec. 169, Code of 1892; R.S.C. 1886, ch. 155, sec. 11.

Escapes from custody]-Where a person has been illegally released on bail he has technically escaped from custody." R. v. Taylor, 12 Can. Cr. Cas. 244 at 250; R. v. Rapp (1914), 23 Can. Cr. Cas. 202; Robinson v. Morris, 23 Can. Cr. Cas. 209, 19 O.L.R. 633. A person convicted and sentenced who on the ground of appealing obtains his liberty on bail although there was in fact no right of appeal, must be taken to have known the law and the fact that the magistrate made the illegal order for bail was held in R. v. Taylor, supra, not to operate as a lawful excuse to the accused for being at large. See Code sec. 16. But quaere whether an order for bail is not within Code secs. 26 and 27 so as to justify not only the officer but the accused as a person in good faith "assisting in carrying out the same." The latter sections imply that there may be "lawful assistance" in carrying out an order made without jurisdiction.

What sec. 27 demands is "good faith and a "belief of jurisdiction" which are matters quite apart from the legal maxim "Ignorantia legis non excusat now embodied in the Code as sec. 22.

An escape from custody puts an end to a pending habeas corpus application made on the prisoner's behalf, but a new writ may issue on his re-capture or surrender. Re Bartels (1907), 15 O.L.R. 205; Ex parte Lamirande (1866), 10 L.C. Jur. 280.

Return to custody after escape]-The prisoner escaping from the constable's custody while being taken to jail under sentence in a summary conviction matter may be re-captured under the original commitment. R. v. Hall (1916) (N.S.), 27 Can. Cr. Cas. 1, 32 D.L.R. 236. The escape is not a voluntary one on the part of the constable where he became intoxicated on the way and in consequence allowed the prisoner his freedom. R. v. Hall, supra.

If the person summarily convicted was in fact let out on bail before being taken in charge under the sentence or under a warrant of commitment, the intermediate period until his close custody actually commenced will not count as part of his sentence. R.S.C. 1906, ch. 148; Robinson v. Morris, 19 O.L.R. 633, 23 Can. Cr. Cas. 209, overruling R. v. Robinson (1907), 14 O.L.R. 519, 12 Can. Cr. Cas. 447; and see R. v. Taylor (1906), 12 Can. Cr. Cas. 244.

If the statute R.S.C. 1906, ch. 148, sec. 3, is not applicable to a summary conviction under a provincial law, the term of imprisonment under such conviction awarding imprisonment for a stated number of months or days would not commence until the accused was taken into close custody under the conviction or commitment or until his lodgment

in gaol thereunder, Robinson v. Morris, supra; R. v. Robinson (1907), 14 O.L.R. 519, 12 Can. Cr. Cas. 447, overruled; R. v. Taylor (1906), 12 Can. Cr. Cas. 244, approved.

Return to custody after conditional release]-If a convict released under license from a provincial prison is sentenced for another crime to the penitentiary and so forfeits his license, the unexpired term in the provincial prison is not to be added to the penitentiary sentence. but after the expiry of the latter he is to be returned to the provincial prison to serve out the original term, or if that sentence is under a federal law and the second sentence is in another province he may be sent to a prison in that province to complete the first sentence, R. v. McColl (1911), 21 Man. R. 552, 19 W.L.R. 515, 19 Can. Cr. Cas. 59.

66

“Penitentiary" or prison"]-By sec. 2 (30), unless the context otherwise requires, the word "prison," when used in the Code, includes any penitentiary, common gaol, public or reformatory prison, lock-up, guard-room or other place in which persons charged with the commission of offences are usually kept or detained in custody.

PART V.

OFFENCES AGAINST RELIGION, MORALS AND PUBLIC CONVENIENCE.

Definitions.

Interpretation.

197. In this Part, unless the context otherwise requires,(a) theatre' includes any place open to the public, gratuitously or otherwise, where dramatic, musical, acrobatic or other entertainments or representations are presented or given;

(b) guardian' includes any person who has in law or in fact the custody or control of any girl or child referred to;

(c) public place' includes any open place to which the public have or are permitted to have access and any place of public resort.

Origin]-3 Edw. VII, Can., ch. 13, sec. 2; 63-64 Vict., Can., ch. 46, sec. 3; 57-58 Vict., Can., ch. 57, sec. 1.

Public place]-A licensed saloon and billiard hall is a "public place" under Code sections 197 and 238, and a person causing a disturbance therein by being drunk is liable as a vagrant under sec. 238. R. v. Kearney and Denning, 12 Can. Cr. Cas. 349, (Y.T.); Langrish v. Archer, 10 Q.B.D. 44; Ex parte Freestone, 25 L.J.M.C. 121.

A public place does not mean a place devoted solely to the uses of the public, but it means a place which is in point of fact public, as distinguished from private, to a place that is visited by many persons, and usually accessible to the neighboring public. A place may be public during some hours of the day and private during other hours. The term is a relative one. What is a "public place" for one purpose is not for another. A "public place," within the meaning of a statute prescribing the time and place for posting notices of tax sales, may not be a "public place" within the common law definition of an affray, and so a place which is public in one community is not necessarily so in another. Roullier v. Town of Magog (1909), 37 Que, S.C. 246.

193

"Public place" is a fluctuating term, and the meaning varies with the context. Grove, J., in Regina v. Wellard (1884), 14 Q.B.D. 63, said: "A public place is one where the public go, no matter whether they have a right to go or not."

Offences Against Religion.

Blasphemous libels.-Question of fact.-Expression of opinion. 198. Every one is guilty of an indictable offence and liable to one year's imprisonment who publishes any blasphemous libel.

2. Whether any particular published matter is a blasphemous libel or not is a question of fact: Provided that no one is guilty of a blasphemous libel for expressing in good faith and in decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.

Origin]-Sec. 170, Code of 1892.

Formalities of indictment]-See secs. 859, 861, 852, 853.

Blasphemous libel]-Publications which in an indecent and malicious spirit assail and asperse the truth of Christianity or of the Scriptures in language calculated and intended to shock the feelings and outrage the belief of mankind are punishable as blasphemous libels. R. v. Bradlaugh, 15 Cox C.C. 217; R. v. Hetherington, 4 St. Tr. (N.S.) 563, 590; R. v. Pelletier (1900), 6 Revue Legale, N.S. 116. But if the decencies of controversy are observed even the fundamentals of religion may be attacked without the right of being guilty of blasphemous libel. R. v. Ramsay & Foote, 15 Cox C.C. 231, 238, 1 Cab. & El. 126; Odgers' Libel, 3rd ed., 466. And see re Bowman, Secular Society v. Bowman [1915], 2 Ch. 447, 31 Times L.R. 618.

No justification of a blasphemous libel can be pleaded nor is argument as to its truth permitted. Cooke v. Hughes, Ry. & M. 112; R. v. Tunbridge, 1 St. Tr. (N.S.), 1168; R. v. Hicklin, L.R. 3 Q.B. 360. Code secs. 910 and 911 as to pleas of justification are limited to cases of defamatory libels.

Obstructing officiating clegyman.

199. Every one is guilty of an indictable offence and liable to two years' imprisonment who, by threats or force, unlawfully obstructs or prevents, or endeavours to obstruct or prevent, any clergyman or other minister in or from celebrating divine service, or otherwise officiating in any church, chapel, meeting