Recent Cases
CRIMINAL LAW –
ATTEMPTED MURDER –
ACCUSED SUFFERING
FROM FUNCTIONAL AMNESIA COVERING PERIOD VITAL TO DEFENCE –
HYPNOSIS AS MEANS OF RESTORING MEMORY –
APPLICATION FOR
LEAVE TO HYPNOTIZE ACCUSED IN PRESENCE OF JURY IN ATTEMPT TO
OVERCOME AMNESIA – No QUESTIONS TO BE PUT AS TO FORGOTTEN
EVENTS WHILE ACCUSED UNDER HYPNOSIS. R. V. Pitt, (1968), 68
D.L.R. (2d) 513, (1969), 66 W.W.R. 400.
As medical science and technology progress there will undoubtedly
be inceasing pressure on the courts to adopt new methods in finding
just solutions to legal problems. To say that courts have been hesitant
to do so is an understatement. However, it may well be that the
conservative armour of the Canadian judicial process has been dented
by the recent decision of the British Columbia Supreme Court in
R. v. Pitt.
In this case the accused was charged with attempted murder of
her husband. The accused, due to what was described as functional
amnesia, was unable to recall what occurred during the crucial period
of time in which the -alleged offence took place. After asking the
accused if she had told the court all she could remember and receiving
an affirmative reply, the defence attorney, after having the jury
excluded, asked the court to give leave that the accused be hypnotized
in the presence of the jury. It was hoped that this would assist the
accused in recollecting the events that transpired during the crucial
period.
to recall forgotten events,
After hearing the testimony of two psychiatrists who regarded
hypnosis as a useful means to enable a person suffering from
functional amnesia
it was held by
Aikins, J., “that it would be unfair to deny to the accused the right
to have the assistance of this particular procedure or psychiatric
procedure which … would appear to be an accepted procedure, a
proper procedure, and one which is efficacious.” The judge, however,
was quick to point out that under no circumstances would he permit
the testimony of the accused to be given while she was in a state
of hypnosis. What he would authorize was the psychiatrist asking
her, while she was in a hypnotic state, to attempt to recall the events
of the crucial time period, and to relate these events after being
brought out of the trance.
McGILL LAW JOURNAL
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The procedure to be used was determined by means of a dialogue
between the judge and the Crown and defence attorneys. It was
decided that:
1) accused would be hypnotized before the jury,
2) psychiatrist would take the stand, and by answering questions
put to him by the defence attorney, would explain what was
to occur,
3) accused would be brought into the courtroom only after the
psychiatrist gave his explanation,
4) Crown attorney could cross-examine the psychiatrist either
before or after the accused had been hypnotized and had given
her evidence.1
The use of hypnotism as a legal tool has been rare. In the United
States the hypnotizing of an accused was, at first, only permitted in
order to aid defence counsel in preparing his case,2 but under no
circumstances would statements made by an accused while hypnotized
be admissible evidence. 3 Then, in a 1963 Ohio case, 4 hypnosis was
allowed in a courtroom for the first time, although the jury was
excluded. However, after the testimony the District Attorney amended
the indictment thereby eliminating the necessity of a decision by the
judge on the admissibility of this evidence.
It appears that Aikins, J., was basing himself on the American
position in so adamently stating his refusal to admit any testimony
by the accused while she was under a hypnotic trance. A question
may be asked as to the reasoning behind such an exclusion since
the court readily admitted, as evidence, statements made by the
accused on the basis of what may be referred to as a post-hypnotic
suggestion. It is submitted that the answer lies in the highly complex
nature of hypnosis. Only a person who is specifically trained in
lIn this case, cross-examination of the psychiatrist took place after accused
gave testimony. The accused had been hypnotized by the psychiatrist once before,
and in the event that the Crown wanted to attack her credibility, it wanted to
cross-examine the psychiatrist as to what accused had told him when under
hypnosis the first time. The judge, therefore, allowed this cross-examination to
take place after the accused gave evidence, so that the Crown would be able to
point up any inconsistencies between the two stories.
2 Cornell V. Superior Court, 52 C. 2d 99, 338 P. 2d 447.
3 Cornell v. Superior Court, supra, n. 2; People v. Ebanks, 117 Cal. 652, 49
P. 1049. In the latter case, decided in 1897, the court held that the law of the
United States does not recognize hypnotism and consequently any defence based
on hypnotism would be illegal and so not admissible.
4 The Nebb Murder Trial, discussed in: Harry Arons, Hypnosis in Criminal
Investigation, (Springfield, Ill., 1967), at pp. 106-108.
:No. 13
RECENT CASES
hypnosis can properly utilize it for the purpose of elliciting the
required information from the subject. This necessarily excludes
questioning by either of the attorneys while the accused is under
the trance. However, in the case of the post-hypnotic suggestion the
accused can be examined in chief and cross-examined in the ordinary
fashion.
Should hypnosis prove useful and gain substantial
judicial
acceptance, will courts, when faced, for example, with functional
amnesia, go so far as to order the accused hypnotized although
neither attorney has made such a request? Psychiatrists have said
that hypnosis be used “sparingly, judiciously and on a highly
individual basis”.5
Thusfar, the hesitancy of courts to allow hypnosis may derive
from thinking which views it as some sort of trick or chicanery.
Today, however, hypnosis is being used more and more in many
fields of medicine with extremely beneficial results. There appears
to be no reason why courts should fear its use when it can clearly
help in the quest for truth. In Cornell v. Superior Court, when asked
why he opposed hypnosis, the District Attorney replied: “We have
nothing against hypnosis; it is just that it is a little unusual.” Justice
J. Peters looked up and stated: “Since when is the unusual unlawful !”7
S.W.
5 Ibid., at p. 110.
6 Supra, n. 2.
7 Arons, op. cit., p. 51.
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PRACTICE – DIVORCE –
SERVICE – WHEREABOUTS OF RESPONDENT
SPOUSE UNKNOWN – WHETHER SUBSTITUTED SERVICE PERMISSIBLE
WHERE NO LIKELIHOOD OF NOTICE REACHING RESPONDENT. McAdams
V. McAdams, [1968] 2 O.R. 784, 70 D.L.R. (2d) 582; Sutt v. Sutt,
[1968] 2 O.R. 786, 70 D.L.R. (2d) 584.*
Under the new federal Divorce Act,1 where the spouses are living
separate and apart, a petition in divorce may be presented to a court
on the ground that there has been a permanent breakdown of their
marriage by reason of certain circumstances, 2 one of which is where
the petitioner, for a period of not less than three years immediately preceding
the presentation of the petition, has no knowledge of or information as to
the whereabouts of the respondent and, throughout that period, has been
unable to locate the respondent;3
In such circumstances, it should be obvious that a substituted form
of service would have to be permitted to the petitioner in order to
effect service of the notice of the petition on the respondent spouse.
However, this matter is no longer so obvious, as seen by these two
recent decisions of the High Court of Ontario.4
In McAdams v. McAdams, Mr. Justice Stewart held that, under
the Ontario Matrimonial Causes Rules of Practice, a judge had no
power to dispense with service upon the respondent spouse. He held
further that an order for substituted service could only be granted
where there was some reasonable prospect of the material served
coming to the respondent’s attention. The learned judge relied prin-
cipally on Rule 791 (1) and Rule 792 of the new Matrimonial Causes
Rules, enacted pursuant to section 19 (1) of the Divorce Act. Rule
791 (1) 5 provides:
Unless otherwise ordered by a judge, the notice of petition, the petition and
all papers required to be served therewith shall be served on each respondent
personally.
Rule 792 6 goes on to say:
A judge may dispense with service of the notice of petition and other
documents on a respondent, other than the respondent spouse, who cannot
be found if no claim is made against him, or if made, is abandoned (emphasis
added).
* Since the writing of this note on a recent case, the Court of Appeal has
rendered its decision. See Sutt v. Sutt, (1969), 2 D.L.R. (2d) 33. See infra, n. 12.
116-17 Eliz. II, S.C. 1967-68, c. 24.
2S. 4(l).
3 S. 4 (1) (c).
4 September 20, 1968 and October 2, 1968 respectively.
5 Regulations under The Judicature Act and The Matrimonial Causes Act,
R.R.O. 1960, Reg. 396, Rule 789 (1), rep. & sub. by 0. Reg. 156/68, ss. 15 and 17.
6 Ibid.
No. 1]
RECENT CASES
Applying the maxim expressio unius est exelusio alterius, the
Court concluded that under no circumstance did it have the power to
dispense with service upon the respondent spouse. Mr. Justice Stewart
added:
I do not believe that similar applications should be dismissed but that they
should be adjourned sine die for better material. It might well be that in-
formation might come to the attention of the petitioner as to the whereabouts
of the missing spouse in which event it seems to me rather unnecessary that
all the previous papers should have to be redrafted and filed. I therefore
adjourn this matter sine die, recognizing, regretfully, that this will probably
also be in perpetuum.7
The only recourse left open to the deserted spouse, after seven years,
is to apply for an order declaring the missing spouse dead. But should
he reappear later on, the marriage will not have been dissolved!
In Sutt V. Sutt, decided a few days later, Mr. Justice Parker
refused to accept the ratio in McAdams v. McAdams. He specifically
disapproved of the McAdams case holding that, while as a general
rule substituted service should not be ordered unless there is some
reasonable prospect of the material substitutionally served coming
to the attention of the person upon whom it should be served, it
would be frustrating the intention of section 4
(c) of the
Divorce Act to deny the deserted spouse the recourse to which he
or she is entitled merely because there is no reasonable expectation
that the material to be served would not come to his or her attention.
Mr. Justice Parker added that the Divorce Act should be interpreted
as new social legislation intending to provide an exception to the
general rule.8
(1)
The learned judge relied on previous jurisprudence, principally on
Brissette V. City-Wide Taxi Ltd. and Boyd,9 and several English
decisions in matrimonial causes, where orders for substituted service
7 (1968), 70 D.L.R. (.2d) 582, at p. 584.
8 See Myers v. Myers, (1968), 70 D.L.R. (2d) 586, 65 W.W.R. 575 (B.C.S.C.)
where Tyrwhitt-Drake, Co. Ct. J., would have deemed it proper to dispense alto-
gether with service. But since he was prohibited to do so under the British
Columbia Rules (see infra, n. 12) the learned judge, rather than “saddle [the
petitioner] with substantial costs of prolonged and far-flung publication of a
notice which would almost certainly be unproductive”, ordered that service be
made at the main Post Office of the City where the spouses were married and
resided until the disappearance of the respondent spouse. See also, Watts v.
Watts, (1968), 70 D.L.R. (2d) 621 (B.C.S.C.) where the Court approved Myers
v. Myers. It is respectfully submitted that this is a more rational approach as,
in the final analysis, the disappeared spouse, if he is not dead, is not likely to
appear in the proceedings even if he does get notice.
9 [1952] O.W.N. 501.
McGILL LAW JOURNAL
[Vol. 15
were granted even if the whereabouts of the respondent spouses
were unknown.’ 0
It is respectfully submitted that the view of Mr. Justice Parker
in Sutt V. Sutt, that the Divorce Act must be deemed to be an
exception to the general rule of personal service, must prevail. If
Rule 792 is to be interpreted restrictively, as in McAdams v. Mc-
Adams, then it must be deemed to be ultra vires as repugnant to the
Divorce Act, in so far as it would restrict the courts in the exercise
of their functions under section 4 (1)
(c) of the Act.” The interpre-
tation arrived at by Mr. Justice Stewart in McAdams v. McAdams
is in part imputable to the Rules themselves which are in this respect
inadequate. The learned judge was faced, on one hand, with a rule
requiring personal service (Rule 791 (1) ) and, on the other hand,
with another prohibiting “dispensing” with service against the re-
spondent spouse. None dealt specifically with substituted service, and
thus Mr. Justice Stewart held that he had no authority to grant
such an order. This is a lapse for which he cannot be held responsible,
but which he could have easily remedied as did Mr. Justice Parker
in Sutt V. Sutt.’2
‘OPeckover V. Peckover and Jolly, (1858), 1 Sw. & Tr. 219, 164 E.R. 700;
Appleyard v. Appleyard and Smith, (1875), L.R. 3 P. & D. 257; Jenson v. Jen-
son, (1898), 78 L.T. 764.
“1 See the case of Andrews v. Andrews and Roberts, [1945] 1 D.L.R. 595.
King’s Bench Rule 502 (2) of Saskatchewan was held to be ultra vires as it
was held to deal with the substantive law of divorce, which was within the sole
legislative competence of the Dominion Parliament, in that it purported to re-
strict the Court in the exercise of its duties under s. 5 of the Marriage and
Divorce Act, R.S.C. 1952, c. 127 and s. 31 of the Divorce and Matrimonial Causes
Act, 1857, 20 & 21 Vict., c. 85.
121n British Columbia, for example, the equivalent rules are Rules 13, 14 and
15 of the Supreme Court Rules, 1961, B.C. Reg. 241/60 (Order LXa), B.C. Gaz.
1960, Part II, vol. 3, No. 25, p. 597, as amended by Order in Council No. 1811,
B.C. Reg. 154/68, B.C. Gaz. 1968, Part II, vol. 11, No. 13, p. 241. Rule 13 (1)
provides substantially the same as Rule 791 (1) of the Ontario Rules, while
Rule 15 is identical with Rule 792. The difference lies in Rule 14 which provides:
“Where personal service cannot be effected, leave to substitute another mode of
service may be granted by a Judge, on application supported by an affidavit of
the solicitor or other person having conduct of the proceedings.” The Court of
Appeal, in Sutt V. Sutt, got around this lapse of the Matrimonial Causes Rules
of Ontario by holding that Rule 16 of the General Rules had been incorporated
in the Matrimonial Causes Rules in virtue of s. 19 (3) of the Divorce Act. Rule
16 (1) provides: “Except as hereinafter provided, in the absence of such accept-
ance of service every writ of summons shall be served personally, but, if
it
appears that the plaintiff is unable to effect prompt personal service, substituted
service, by advertisement or otherwise, may be ordered.” The Court concluded
that it would be requiring the impossible (Lex non cogit ad impossibilia) to
No. 1]
RECENT CASES
Quebec has also enacted Rules of Practice pursuant to section
19 (1) of the Act. 13 However, no similar provisions to that found in
the Ontario Rules have been enacted. Rules 17 and 18, the only rules
concerning service, deal solely with the delays which must be afforded
to the opposite party in the notice to appear. Rule 18 provides in part:
(W)ithin 40 days of service by another mode of service authorized by a
judge on petition, whether in the Province of Quebec, in Canada or in the
United States; and 60 days elsewhere in the world according to a mode
authorized by a judge on motion.
Thus the Rule implies that a form of substituted service is permis-
sible. In the absence of specific provisions in the Rules, we must
therefore fall back on the provisions of the Code of Civil Procedure,
at least in so far as they are not inconsistent with the Divorce Act
(or any regulations made thereunder by the Governor-General in
Council). 14 Under Article 138 C.C.P., the judge or prothonotary
has complete discretion on the matter. 15 In practice, where a bailiff
makes a return showing that after repeated attempts he has not
been able to locate the defendant or respondent, the Court will order,
upon motion, that the proceeding be served by special mode. Thus
the likelihood of a judge refusing in Quebec to grant an order for
substituted service on the ground alone that there is no way of
knowing whether the material so served will reach the party for
which it is intended is remote.
L.S.
insist that substituted service be permitted only when it is shown to be rea-
sonably likely that the proceedings will come to the knowledge of the respondent
spouse. Applying the maxim ubi jus, ibi remedium, the Court held that rules
of practice should not be construed and applied so as to render inoperative
substantive rights and substituted service should not be permitted upon proof
of reasonable likelihood that the proceedings will come to the knowledge of the
respondent spouse, but where reasonable probability of the same can be shown.
13 Rules of Practice of the Superior Court of the Province of Quebec concerning
divorce, Q. Off. Gaz. 1968, vol. 100, No. 25, p. 3470 ff.
14 Rule 1.
15Article 138 C.C.P. reads: “The judge or prothonotary may, on motion, if
the circumstances so require it, authorize a mode of service other than those
provided by articles 120, 122, 123 and 130, particularly by public notice or by mail”
(emphasis added).
McGILL LAW JOURNAL
[Vol. 15
ADMINISTRATIVE LAW
–
SUPERINTENDING AND REFORMING
POWER OF THE SUPERIOR COURT –
COMMITTEE ON STUDENT DISCI-
PLINE OF A UNIVERSITY – WHETHER ORGANISM IS A TRIBUNAL AND
CONSEQUENTLY SUBJECT TO REVIEW UNDER THE PROVISIONS OF ARTI-
CLES 33 AND 846 C.C.P. –
PRAYING
THAT THE COURT ORDER COMMITTEE TO CONDUCT A HEARING IN A
QUASI-JUDICIAL MANNER, IN -PUBLIC AND BEFORE AN IMPARTIAL
AND UNBIASED TRIBUNAL –
ABSENCE OF PROOF TO JUSTIFY SUCH
ARTICLES 33, 846, 850 C.C.P. Fekete v. The Royal
AN ORDER –
Institution for the Advancement of Learning (McGill University),
[1969] B.R. 1.1
SUBSIDIARY CONCLUSION –
The Appellant, in his column entitled “Boll Weevils”, in Flux, a
weekly supplement of the McGill Daily (a newspaper published by
the Students’ Society of McGill University),
reproduced certain
materials from The Realist which the Administration condemned
as contrary to the standards of decency accepted by the University.2
He was therefore summoned to appear before the Committee on
Student Discipline (Senate Disciplinary Committee) to answer the
following charge:
Participating in the publication on campus of an article which contravenes
the standards of decency acceptable by and in this University: namely, an
article in the column entitled “Boll Weevils”, appearing on page 4 of the
supplement entitled Flux of the McGill Daily of November 3, 1967, the whole
incompatible with your status as a student of this University.3
After several meetings in which the Appellant objected to the
members of the Committee on the ground of bias, the jurisdiction
of the Committee, and the fact that the hearings were not public
(the Committee later offering to conduct the hearings on closed
circuit television within the University), the Appellant applied to
the Superior Court for a writ of evocation (certiorari and pro-
hibition) based on articles 33 and 846 of the Code of Civil Procedure.
Subsidiarily, the Appellant concluded that the Respondent “be ordered
to conduct a hearing of the charges against the petitioner in a quasi-
judicial manner, in accordance with the rules of natural justice, in
public and before an unbiased tribunal”. 4 Both requests were denied
in the Court below,5 from which judgment the appellant appealed.
The Court examined the scope of both article 33 C.C.P. and
article 846 C.C.P. The general superintending and reforming power
1 Brossard, J., (Choquette, Montgomery, Rivard and Salvas, JJ., concurring).
2 Flux, p. 4, in McGill Daily, November 3, 1967.
3 [1969] B.R. 1, at p. 2.
4 Ibid., at p. 4.
5 [1968] C.S. 361.
No. 13
RECENT CASES
of the Superior Court under article 33 C.C.P. was interpreted to
extend to “bodies politic and corporate”, a view which is well sup-
ported by jurisprudence, 6 while, under article 846 C.C.P., the power
of evocation of the Superior Court, which is limited to cases “pending
before a Court”, was held to extend also to other judicial bodies
and individuals set up under the authority of the Legislature. The
difference between bodies whose actions are reviewable under article
33 C.C.P., and those whose are not, lies, in the words of Mr. Justice
Brossard, in the following criterion:
Ce critZre important serait le suivant: exerce des pouvoirs judiciaires on
quasi judiciaires le tribunal qui, en vertu de la loi, est appel6 A rendre des
d~cisions ayant force de loi dans des litiges auxquels il n’est pas partie
et dans lesquels il n’a pas d’int~r~t, soit personnellement, soit comme man-
dataire des parties au litige ou de l’une d’elles.7
He thus concluded that the Committee on Student Discipline was not
one of those bodies:
Je ne puis admettre que toute d6cision que peut rendre The Committee on
Student Discipline de l’Universit6 McGill soit, en vertu de la loi et des
statuts sous l’empire desquels l’Universit McGill et The Royal Institution
t6 incorpor6es, de la nature d’une
for the Advancement of Learning ont
ddcision judiciaire ayant force de loi, et puisse avoir, dans un sens A la fois
juridique et judiciaire, l’effet de chose jug~e.5
The writ of evocation was consequently denied.
The learned judge then proceeded to consider the subsidiary
conclusion, which he also rejected. The conclusion, as drafted, was
a combination of the remedies of injunction and mandamus. The
Court felt that this request was premature: there was no evidence
of a denial of natural justice. Any examination of this question could
only lead to conjectures; the hearings on the actual charge had not
yet been held, and in those meetings held prior to the proceedings
before the courts, the Court could not find any evidence that the
Committee had not proceeded “in an unbiased way”. In any event,
the Court held that the Superior Court, under its general super-
intending and reforming power, was not permitted to substitute
its judgment by compelling non-judicial bodies to act in a quasi-
judicial manner.
However, although all of Appellant’s conclusions were rejected,
the Court pointed out that the Senate Disciplinary Committee did
not necessarily have carte blanche in conducting its hearings. It was
still bound by the rules of natural justice, and should it deny the
0 See the authorities cited therein, at pp. 5-6.
7Ibid., at p. 6.
8 Ibid., at pp. 6-7.
McGILL LAW JOURNAL
(Vol. 15
Appellant the benefit of these rules it would answer to the Superior
Court for its actions in virtue of article 33 C.C.P. The Court concluded
that, unless there was an abuse of right amounting to malice or a
denial of justice, the Superior Court’s superintending and reforming
power did not authorize it to
(D)icter & une autorit& universitaire la conduite qu’elle doit suivre dans
l’exercice de ses droits, A mon avis fondamentaux, d’assurer Fordre et la
discipline acad6mique au sein de l’institution, des droits que je me permet-
trais de declarer aussi importants et aussi pr6cieux pour l’ordre public, sui-
vant les lois actuellement en vigueur, que peut l’re
celui de la libert6 de
la presse ou d’information.9
This dictum appears to be of the widest application. Not only is
a court told that it has no business interfering with an educational
institution’s procedure to enforce academic discipline, but the learned
judge compares this right to self-determination of its internal affairs
to that of freedom of the press or freedom of speech. The University
has thus a general mandate to maintain order and discipline within
its community in any way it sees fit, short of an abuse of right tanta-
mount to malice or a denial of justice. In the present context of
organized opposition and dissension, this broad power given to the
University to regulate its internal affairs may not be much. It is one
thing for the Court to have recognized the power of a university to
regulate its internal affairs, but it is another for the University to
have the means to exercise this right.
9 Ibid., at p. 9.
No. 1]
RECENT CASES
CRIMINAL LAW – ALIMENTARY OBLIGATION –
FAILURE TO PROVIDE
STEP-FATHER –
BOTH UNDER THE CRIMINAL CODE
ARTICLE 167 C.C. R. V.
THE NECESSARIES OF LIFE FOR THREE CHILDREN –
No SUCH LEGAL OBLIGATION –
AND CIVIL CODE – ARTICLE 186 CR. C. –
Charron, [1969] R.L. 125.
The accused was charged under section 186 Cr. C. with failure
to provide the necessaries of life for three children under the age
of sixteen years. It appears from the facts that the petitioner, a
widow, and mother of the three children, had married the accused
and that during the months of May, June and July, 1967, he had
not contributed to the support of the children. The accused admitted
his failure to provide for them but argued that he was not employed
at the time; that in any event, the petitioner was employed in a
hospital and, in addition, maintained boarders in the house, receiving
directly, and keeping, all the revenues derived from them, and
finally, that in law, he was not compellable to provide for the children
of his wife.
The Court examined article 186 (1) and (2) of the Criminal
Code:
(1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of -a family, to provide
necessaries of life for a child under the age of sixteen years;
(b) as a husband, to provide necessaries of life for his wife; and
(c)
to provide necessaries of life to a person under his charge, if that
person
(i) is unable, by reason of detention, age, illness, insanity or other
cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
(2) Every one commits an offence who, being under a legal duty within
the meaning of subsection (1), fails without lawful excuse, the proof
of which lies upon him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (a) or (b) of sub-
section (1),
(i) the person to whom the duty is owed is in destitute or necess-
itous circumstance, or
(ii) the failure to perform the duty endangers the life of the
person to whom the duty is owed, or causes or is likely to
cause the health of that person to be endangered permanently;
or
(b) with respect to a duty imposed by paragraph (c) of subsection (1),
the failure to perform the duty endangers the life of the person
to whom the duty is owed or causes or is likely to cause the health
of that person to be injured permanently.
McGILL LAW JOURNAL
[Vol. 15
Upon a reading of the article, Mr. Justice Langlois came to the
conclusion that the accused was neither a father, a guardian, nor a
head of a family within the meaning of the article without elaborating
on the reasons which led him to such a conclusion. He held, further,
that as there was no legal duty to support the children of his wife
under article 186 or any other article of the Criminal Code, unless
such a duty could be found elsewhere, the accused had to be acquitted.’
The learned judge then referred to the Civil Code in order to
determine if the accused had a civil obligation to support the children
of his wife.2 Article 167 C.C. provides:
Les gendres et belles-filles doivent 6galement et dans les m6mes circonstances
des aliments A leurs beau-plre et belle-mbre; mais cette obligation cesse:
1. Lorsque la belle-m6re a convold en secondes noces;
2. Lorsque celui des deux 6poux qui produisait l’affinit6 et les enfants de
son union avec l’autre 6poux sont d~c6d6s.
In this French version of article 167 C.C., the words “belle-fille”,
“belle-mbre” and “beau-p~re” are of significance: in French, they
can mean either ‘”daughter-in-law” or “step-daughter”, “mother-in-
law” or “step-mother”, and “father-in-law” or “step-father” respect-
ively. But the Court concluded rightly that they could only be capable
“mother-in-law” and “father-in-
of meaning “daughter-in-law”,
law” respectively as the word “gendre” could only mean “son-in-law”,
and never “step-son”. This construction of the article is supported by
both Mignault 3 and Trudel.4
The cases of R. v. Wright, R. v. Brown and R. v. Hall 6 were
cited by the Court for the proposition that the Criminal Code 0 does
not create any legal duty to provide, but when such a legal duty other-
wise exists, the Code provides for punishment for failure to provide
necessaries. Thus, the “existence of a legal duty to provide necessaries
is a condition precedent to criminal liability… Unless the legal
duty already exists by law, either under some other provision of
the Code, or otherwise, there cannot be any criminal liability…
7
1R. v. Wright, (1931), 66 O.L.R. 456, 55 C.C.C. 172, [1931] 3 D.L.R. 200;
R. v. Brown, (1941), 75 C.C.C. 290, [1941] 1 W.W.R. 268; R. v. Hall, (1941),
76 C.C.C. 311, 56 B.C.R. 309, [1941] 2 W.W.R. 295.
49 S.C. 189 (Ct. of Rev.);
2 See generally: Phaneuf V. Pr.vost, (1916),
Desjardins V. Boyer, (1886), 14 R.L. 506; Guthrie D., Alimentariy Obligations,
(1965), 25 R. du B. 525, at p. 527.
3 Le Droit civil canadien, t. 1, (Montreal, 1895), p. 483.
4 TraiM do Droit civil du Qudbec, t. 1, (Montreal, 1942), p. 478.
5 Supra, n. 1.
6 Section 242 of the old Criminal Code. See infra.
7 R. v. Wright, (1931), 55 C.C.C. 172, at p. 176.
No. I]
RECENT CASES
In R. v. Wright, which involved an action against a father to provide
for his child in the custody of her mother pursuant to a decree in
divorce, where no provisions for the maintenance of the child were
made in the -decree, the Court found that no civil liability existed
under the laws of Ontario, and consequently there could not be
criminal liability. In R. V. Hall, upon similar facts, the Court came
to the opposite conclusion holding that the Poor Relief Act s of
England applied in British Columbia by virtue of the Proclamation of
November 19, 1858, which provided that the common law of England,
at that time, applied in civil and criminal matters, unless specifically
declared otherwise in statutes.9 Under this Act, the husband was
bound to support his child in need. In R. v. Brown, the husband
was already providing support for his children and the issue was
to
whether there was any duty under the laws of Saskatchewan
support his divorced wife. Here again the Court held that the
Criminal Code did not create any legal duty to provide, but found
that such duty existed under the common law of Saskatchewan. The
husband was convicted.
None of these cases are remotely similar on the facts to the case
at bar; they are distinguishable in law to a certain extent by being
based on section 242 (1) of the previous Criminal Code which read:
“Every one who as a parent, guardian or head of a family is under
a legal duty to provide necessaries … ” The wording of this sub-
section clearly implied the necessity of a precedent legal obligation
in order for criminal liability to attach. However, section 186 (1)
of the present Code has been reworded: “Every one is under a legal
duty (a) as a parent… to provide necessaries.. .” Here the legal duty
is created by the Criminal Code itself.10 In fact, section 186 (2)
provides: “Every one commits an offence who, being under a legal
duty within the meaning of subsection (1), … ” Thus these cases
would apply today only if it were not possible to bring a case within
the scope of subsection (1) of section 186.
It
is respectfully submitted that Mr. Justice Langlois, in ex-
amining the applicability of section 186 Cr. C. to the facts in this
case, may have been hasty in summarily deciding that it did not
apply. The learned judge confined his remarks to paragraph (a)
of subsection (1) of section 186 Cr. C. Should he have gone further?
sPoor Relief Act, 1601, 43 Eliz., c. 2.
9 The Proclamation is maintained in force in British Columbia by statute. See
the present English Law Act, R.S.B.C. 1960, c. 129.
10 See Tremeear’s Annotated Criminal Code, 6th ed., Leonard J. Ryan ed.,
S. 186 declares a duty and
(Toronto, 1964), p. 296: “Effect of Revision. –
creates an offence for breach of it”.
McGILL LAW JOURNAL
[Vol. is
Assuming, for the present, that he is correct in saying that the
accused is neither a father, a guardian, nor the head of a family, is
the accused not a person having under his charge someone who “is
unable.., by reason… of age..,
to withdraw himself from that
charge” and who “is unable to provide himself with the necessaries
of life”, within the meaning of paragraph (c) of subsection (1) of
section 186 Cr. C.? The accused by contracting a marriage with a
widow having three young children must be said to have accepted
the charge of caring for these children, even if he did not legally
adopt them. In such circumstances, it would seem strange that the
husband does not assume some kind of responsibility for the welfare
(a) Cr. C., that
of these children.” Turning back to section 186 (1)
the accused is not a father by blood or by adoption is obvious; that
he is not a guardian or a head of ‘a family is not so obvious. Section
includes’ a person who
185 (d) Cr. C. provides that a “‘guardian’
has in law, or. in fact, the custody or control of a child.” Can it not
be said that the accused had de facto control of the children living
under the same roof? If he does, does this control automatically end
upon his leaving the home permanently, or do his obligations toward
them, if any, continue? This definition equally applies to a head of
a family.12 If a grandfather, older brother or sister, uncle or other
relative can be head of a family upon the disappearance of one or
both of the parents, by virtue of what principle is the step-father
so different as to be ineligible to assume such duties? Perhaps only
blood relatives are capable of becoming heads of a family.
On the basis of the authorities in this area, we cannot dispute
Mr. Justice tanglois’ judgment, but one cannot be entirely satisfied
by it without, at least, attempting to answer some of the questions
raised above.
L.S.
” See R. v. Gibbins and Proctor, (1917-19), 13 Cr. App. R. 134 where it was
held that a woman living in a common law relationship with a man who so
neglected his child by previous wife so as to cause her death, if she accepted
the charge of the child, may also be guilty of murder. The Court stated that,
even if the child -is not hers, by living with the father, she no doubt assumed
some duty towards the deceased child. The Court found that she was under no
obligation- to live ‘with the man, ‘and, ‘thus, having accepted to live with him,
she must accept the responsibilities. A fortiori, would not a person legally
married to the mother ;f three children have assumed some responsibilities
towards’them?
,
12 Lagarde, I., Droit pJnaZ canadien, (Montreal, 1962); p. 275.
