Supreme Court of Canada
McKeown v. The Queen, [1971] S.C.R.
446
Date: 1971-02-01
C. G.
Stewart Mckeown Appellant;
and
Her
Majesty he Queen Respondent.
1970: November 19; 1971:
February 1.
Present: Fauteux C.J. and
Martland, Judson, Spence and Laskin JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR ONTARIO
Contempt of Court—Failure of
counsel to appear for client charged as an habitual criminal—Summary conviction
for contempt of Court—Whether contempt in face of Court or not—Whether appeal
lies—Criminal Code, 1953-54 (Can.), c. 51, s. 9.
The appellant, who had failed to appear as counsel for a
client charged as an habitual criminal, was directed by the judge to appear
before him to show cause why he should not be held in contempt of Court. The
judge called and examined witnesses, cross-examined witnesses for the appellant
and also acted upon his own asserted knowledge of facts bearing on the citation
for contempt. The judge found the appellant guilty of contempt in the face of
the Court. An appeal was taken from the conviction to the Ontario Court of
Appeal which quashed the appeal. Pursuant to leave granted by this Court, the
appellant appealed from the judgment of the Court of Appeal.
[Page 447]
Held (Spence and Laskin JJ., dissenting): The appeal
should be dismissed.
Per Fauteux C.J. and Martland and Judson JJ.: There was
evidence upon which the trial judge's finding that the contempt of Court was
committed in the face of the Court could properly be made, and under s. 9(1) of
the Criminal Code there was an appeal only against the punishment
imposed, and not against the conviction itself. The appellant appealed only
against the conviction. That being so, the Court of Appeal was right in
quashing the appeal.
Per Spence J., dissenting: The appellant in the
charge had a right to have his guilt shown beyond reasonable doubt. It had to
be proved as against him not only that he did not appear at the time and place
set by the trial judge's order but that he did not appear without justifiable
excuse. Therefore, before the appellant could have been convicted there were
circumstances which had to be proved which were not in the presence of the
Court and which were not to the knowledge of the Court. Hence the contempt was
not a contempt "in the face of the court" within the meaning of those
words as used in s. 9 of the Criminal Code and, therefore, an appeal lay
to the Court of Appeal for Ontario as to both conviction and sentence.
When a contempt is "in the face of the court", in
most cases it cannot be dealt with efficiently except immediately and by the
very judicial officer in whose presence the contempt was committed. When,
however, the contempt is not "in the face of the court" then it can
be dealt with subsequently before any other tribunal, the attorney general or
his representative representing the interests of the state in the
administration of justice with the accused being permitted all the protections
of an ordinary trial for an ordinary offence.
The latter procedure would have avoided the trial judge
unnecessarily placing himself in the most invidious position of being an
accuser, what amounted to a witness, and also a judge. The Court of Appeal
should have referred the matter to the Attorney General for Ontario in order
that he might consider the taking of proceedings by way of indictment for the
alleged contempt.
Per Laskin J., dissenting: The quality of a
criminal contempt, which had historically been an indictable offence, and as
well one that could be prosecuted by criminal information, was not changed by
the development and general use of the summary
[Page 448]
procedures of committal and attachment. Although resort to
indictment and criminal information became infrequent, these procedures
remained, and indictment was still available in this country for the trial of
criminal contempts (Criminal Code, ss. 8, 108). It followed that no
appeal lay in this case under s. 41 of the Supreme Court Act, and, the
matter having been dealt with summarily, the right of appeal must be found
through s. 9 of the Criminal Code. Having regard to the provisions of
that section, it remained to be determined whether the alleged contempt was
committed in the face of the Court or not.
Contempt in the face of the Court is distinguished from
contempt not in its face on the footing that all the circumstances of the
alleged contempt are in the personal knowledge of the Court. The presiding
judge can then deal summarily with the matter without the embarrassment of
having to be a witness to issues of fact which may be in dispute because of
events occurring outside.
The contempt alleged against the appellant (i.e.,
unjustified failure to appear on behalf of a client) was not one in the face of
the Court, or, at worst, not one wholly in the face of the Court so as to
deprive him of a right of appeal against conviction. Assuming that the trial
judge had the power to punish summarily for a contempt not in the face of the
Court, the appellant was not properly convicted of a contempt in the present
case.
The hearing was not conducted according to the cardinal
principles of fair process. Also, the case was not one in which the facts
surrounding the alleged contempt were so notorious as to be virtually
incontestible, nor was it one where the events upon which the contempt was
based took place in the full view and appreciation of the Court. It would have
been the prudent course either to have the attorney general assume the carriage
of the proceedings before another judge or to invoke the jurisdiction of the
Supreme Court of Ontario to punish summarily an alleged contempt of an inferior
Court; or if they were to take place before the same trial judge, then only
before him acting as a purely disinterested adjudicator, passing on evidence
adduced by others through witnesses called by others.
There were fatal defects beyond those residing in a denial of
natural justice. The presumption of innocence applies in criminal contempts not
in the face of the Court, and the alleged contemnor must be proved guilty
beyond a reasonable doubt. The
[Page 449]
trial judge failed to apply this standard. Also, in his
findings of fact he relied on an exaggerated estimate of power to pass on
credibility without providing any rational basis for so doing.
On the assumption that the appellant's conviction was for a
contempt in the face of the Court, he would have no right of appeal under s. 9
of the Criminal Code, and his only recourse would be by certiorari
to quash the conviction. In this respect he would be governed by the scope of
that remedy, but it would reach a conviction made in violation of natural
justice or fair process.
[Poje v. A.G. for B.C., [1953] 1 S.C.R. 516; R. v. Gray,
[1900] 2 Q.B. 36; Re Tilco Plastics Ltd. v. Skurjat et al., A.-G. for Ontario
v. Clark et al., [1962] 2 O.R. 547; Izuora v. The Queen, [1953] A.C. 327; Parashuram
Detarum Shamdasani v. King-Emperor, [1945] A.C. 264; Re O'Brien (1889), 16
S.C.R. 197; Chula v. Superior Court of California (1962), 368 P. 2d 107; Ex. p.
Hill (1932), 52 S.W. (2d) 367; District Attorney for Alamosa County v. District
Court of Alamosa (1962), 371 P. 2d 271, referred to.]
APPEAL, with leave, from a
unanimous judgment of the Court of Appeal for Ontario, quashing the
appellant's appeal against his summary conviction for contempt of Court. Appeal
dismissed, Spence and Laskin JJ. dissenting.
D. O'Connor, for the
appellant.
A. Campbell, for the
respondent.
The judgment of Fauteux C.J. and
Martland and Judson JJ. was delivered by
MARTLAND J.—This is an appeal,
with leave, from the unanimous judgment of the Court of Appeal for Ontario, which
quashed the appellant's appeal against his summary conviction for contempt of
Court. The learned trial judge held that the appellant had been guilty of
contempt of Court in the face of the Court. In my opinion there was evidence
upon which that finding could properly be made.
Section 9 of the Criminal Code
provides as follows:
9. (1) Where a court, judge,
justice or magistrate summarily convicts a person for a contempt of
[Page 450]
court committed in the face
of the court and imposes punishment in respect thereof, that person may appeal
against the punishment imposed.
(2) Where a court or judge
summarily convicts a person for a contempt of court not committed in the face
of the court and punishment is imposed in respect thereof, that person may
appeal.
(a) from the conviction, or
(b) against the punishment
imposed.
(3)An appeal under this
section lies to the court of appeal of the province in which the proceedings
take place, and, for the purposes of this section, the provisions of Part XVIII
apply, mutatis mutandis.
If, as the learned trial judge
found, the contempt of Court was committed in the face of the Court, subs. (1),
quoted above, only permits an appeal against the punishment imposed, and not
against the conviction itself. The appellant appealed only against the
conviction. That being so, in my opinion, the Court of Appeal was right in
quashing the appellant's appeal, and the appeal from its judgment fails.
I would dismiss the appeal.
SPENCE J. (dissenting)—I
have had the advantage of reading the reasons for judgment of Mr. Justice
Laskin and I am grateful to him for his most complete analysis of all the
facts, which I therefore need not repeat, and discussion of the legal
principles involved. I feel, however, that I must express in these reasons a
conclusion which differs somewhat from that arrived at by my learned brother.
The first problem which must be
solved is whether the alleged contempt was a civil contempt or a criminal
contempt.
Kellock J., in this Court in Poje
v. Attorney General for British Columbia,
adopted the statement in Oswald on Contempt of Court, 3rd ed., at p. 36,
as carefully distinguishing civil and criminal contempts. That statement was:
And, generally, the
distinction between contempts criminal and not criminal seems to be that con-
[Page 451]
tempts which tend to bring
the administration of justice into scorn, or which tend to interfere with the
due course of justice, are criminal in their nature; but that contempt in
disregarding orders or judgments of a Civil
Court, or in not doing something
ordered to be done in a cause, is not criminal in its nature. In other words,
where contempt involves a public injury or offence, it is criminal in
its nature, and the proper remedy is committal—but where the contempt involves
a private injury only it is not criminal in its nature.
Adopting that principle, I am of
the opinion that the contempt alleged in the present case was a criminal
contempt in that what was alleged involved a public injury or offence as the
conduct charged against the appellant amounted to an unjustifiable interference
with the due administration of justice.
The alleged contempt in the
present case being a criminal contempt, then was such an alleged criminal
offence an indictable or merely a nonindictable offence? Mr. Justice Laskin has
pointed out the provisions of s. 108 of the Criminal Code which reads:
108. Every one who, without
lawful excuse, disobeys a lawful order made by a court of justice or by a
person or body of persons authorized by any Act to make or give the order,
other than an order for the payment of money is, unless some penalty or
punishment or other mode of proceeding is expressly provided by law, guilty of
an indictable offence and is liable to imprisonment for two years.
In the sense that His Honour
Judge Martin ordered that the application for declaration that a convicted
person was an habitual criminal should proceed on the 9th of September and that
the appellant having been ordered to appear on that date as counsel for the
said convicted person did not so appear, the alleged contempt might be
disobeying, without lawful excuse, an order made by a Court, and so be a breach
of s. 108 of the Criminal Code and, therefore, an indictable offence.
Moreover, it would seem quite plain that historically contempt of Court has
been an indictable offence and in the present case proceedings might well have
been taken by way of an indictment. Had such proceedings by way of in-
[Page 452]
dictment been instituted and
carried out then surely the verdict thereon would have been subject to an
appeal to the Court of Appeal for Ontario under the provisions of s. 583 of the
Criminal Code and that appeal could have been taken against either
conviction or sentence, or both. The proceedings, however, were not carried on
by way of indictment but were carried on summarily and then the provisions of
s. 9 of the Criminal Code apply thereto. That section was only enacted
by Statutes of Canada, 1953-54 (Can.), c. 51, and prior thereto no appeal lay
from a summary conviction for contempt of Court: Poje, supra, per
Kellock J., at p. 527.
Section 9 of the Criminal Code
provides:
9. (1) Where a court, judge,
justice or magistrate summarily convicts a person for contempt of court
committed in the face of the court and imposes punishment in respect thereof,
that person may appeal against the punishment imposed.
(2)Where a court or judge
summarily convicts a person for a contempt of court not committed in the face
of the court and punishment is imposed in respect thereof, that person may appeal
(a) from the
conviction, or
(b) against the
punishment imposed.
(3) An appeal under this
section lies to the court of appeal of the province in which the proceedings
take place, and, for the purposes of this section, the provisions of Part XVIII
apply, mutatis mutandis.
Therefore, it must be decided
whether the alleged contempt, the subject of the summary conviction by the
judge, was a contempt "in the face of the court" and, therefore,
governed by subs. (1) of s. 9 or was a contempt "not committed in the face
of the court" and, therefore, governed by subs. (2) of s. 9.
Subsection (1) provides that a
conviction for contempt "in the face of the court" may be appealed on
the issue of punishment only while subs. (2) permits an appeal in the case of a
contempt not committed "in the face of the court" both from
conviction and from punishment.
[Page 453]
It was apparent throughout that
the alleged contempt here was considered as a contempt "in the face of the
court". His Honour Judge Martin, in directing that the appellant appear
before him to show cause and in his disposition, expressly treated the contempt
as one in the face of the Court and it must be presumed that the Court of
Appeal for Ontario in quashing the appeal did so because the appeal was only against
conviction and was, therefore, barred by subs. (1) of s. 9.
Mr. Justice Laskin has referred
to a number of decisions in United States Courts which certainly show a strong
difference of opinion between the Courts of the various states. I need not
review these decisions but I wish to adopt the words of Gibson J. in Chula
v. Superior Court of California,
that the situation was a hybrid one in that "the charge of contempt arose
from events occurring in the presence of the court which it is claimed should be
excused by matters taking place outside the courtroom". In determining
this most difficult issue, one must be careful to consider the exact contempt
alleged and that contempt was that the appellant without justifiable excuse
failed to appear as ordered by the learned trial judge on the 9th of September
and again on the 10th of September for the consideration of the application to
determine the convicted person an habitual criminal.
The appellant in the charge had a
right to have his guilt shown beyond reasonable doubt. Therefore, it had to be
proved as against him not only that he did not appear at the time and place set
by the learned trial judge's order but that he did not appear without
justifiable excuse. As an example, if the appellant had been struck by an
automobile as he crossed University
Avenue on the way to the court-house
and had been carried off to a hospital, there would have been no contempt of
Court. Therefore, I say that before the appellant could have been convicted
there were circumstances which had to be proved which were
[Page 454]
not in the presence of the Court
and which were not to the knowledge of the Court. It is quite plain that much
evidence was considered by His Honour Judge Martin as to the circumstances
which took place out of the presence of the Court, and certainly the
circumstances were not such as would have led to any irrebuttable presumption
that there was no justifiable excuse for the non-appearance.
His Honour Judge Martin, as I
have said, concluded that the alleged contempt was "in the face of the
court". Such a conclusion, of course, can not preclude an examination of
the circumstances on review in a higher Court as it is axiomatic that no
inferior tribunal by a wrong conclusion of facts can give itself jurisdiction which
it does not possess and, in my opinion, equally could not by such incorrect
decision as to facts bar an appeal which would have been possible in the event
of a correct decision therein. Since it would appear that in order to have
found a conviction for the alleged contempt there must have been proof of
circumstances which were not in "the face of the court" and "the
court cannot have so perfect a knowledge, unless by confession of the party or
the testimony of others", to use the words of Blackstone in 4 Commentaries
on the Laws of England, 18th ed., at p. 286, I am of the opinion that the
contempt was not a contempt in "the face of the court" within the
meaning of those words as used in s. 9 of the Criminal Code and,
therefore, an appeal lay to the Court of Appeal for Ontario as to both
conviction and sentence. With respect, therefore, I believe that the Court of
Appeal for Ontario should not have quashed the appeal. In doing so, it
affirmed a conviction of the appellant for an indictable offence and under the
provisions of s. 597(1) of the Criminal Code an appeal lay to this Court
on a question of law if leave to appeal is granted by this Court when no judge
of the Court of Appeal for Ontario has dissented. Leave to appeal was granted by this
Court on March 19, 1970. Application for such leave to appeal had been made
pursuant to the provisions of both s. 597 of the Criminal Code
[Page 455]
and s. 41 of the Supreme Court
Act and the order granting leave did not limit such leave to the provisions
of either of the sections. Therefore such leave is effective to permit an
appeal under s. 597 of the Criminal Code.
The power of this Court on an
appeal is set out in s. 46 of the Supreme Court Act. By that section the
Court may dismiss the appeal or give the judgment and award the process or
other proceedings that the Court whose decision is appealed against should have
given or awarded. By s. 47 of the statute the Court may, in its discretion,
order a new trial if the ends of justice seem to require it.
Mr. Justice Laskin having
determined, as I have, that an appeal lay to the Court of Appeal for Ontario
from the appellant's conviction by His Honour Judge Martin for the alleged
contempt, and having further determined that an appeal lay from the Court of
Appeal for Ontario to this Court, has proceeded to examine the summary
proceedings conducted by His Honour Judge Martin and coming to the conclusion
that those proceedings did not justify a conviction, so that he would allow an
appeal, set aside the conviction and discharge the appellant from any taint of
contempt. I have very considerable difficulty in coming to the conclusion that
the appeal should be disposed of in such a fashion. There is no doubt that once
contempt is not in "the face of the court" then the adjudication
thereon summarily by the tribunal which is, in fact, the accuser, is one which
is most difficult without breach of nearly every principle of natural justice
evolved by the Courts. When a contempt is "in the face of the court",
in most cases it cannot be dealt with efficiently except immediately and by the
very judicial officer in whose presence the contempt was committed. No other
course would, in most cases, protect the due administration of justice. When,
however, the contempt is not "in the face of the court" then it can
be dealt with
[Page 456]
subsequently before any other
tribunal, the attorney general or his representative representing the interests
of the state in the administration of justice with the accused being permitted
all the protections of an ordinary trial for an ordinary offence.
That such a procedure could have
been carried on in the present case appears from the record. The alleged
contempt took place on the 9th and 10th of September. The citation of the
appellant and his co-accused Griner was not issued by His Honour Judge Martin
until the 12th of September; that citation required the two accused to appear
before His Honour Judge Martin on the 15th of September and the actual hearing
did not take place until September 25,
1969.
In Regina v. Gray,
the accused appeared before the Court in obedience to an order made upon the
application of the Attorney-General to the Crown side of the Queen's Bench
Division to answer for a contempt allegedly committed by publishing a certain
article. Such a procedure would have avoided His Honour Judge Martin
unnecessarily placing himself in the most invidious position of being an
accuser, what amounted to a witness, and also a judge. I am of the opinion that
the order which should have been made by the Court of Appeal for Ontario was
that the matter should be referred to the Attorney General for Ontario in
order that he might consider the taking of proceedings by way of indictment for
the alleged contempt. That is the order which this Court should make.
LASKIN J. (dissenting)—"Contempt
of Court" is well known in the vocabulary of the law. It is also well
known that it is not a phrase to be taken literally in any sense of being
concerned with protection of the personal dignity of the
[Page 457]
judge or the honour of the Court.
It is rather a sanction to serve the administration of justice in the public
interest. When invoked for this purpose, the reasonable expectation should be
that it will be exercised with scrupulous regard for those principles that
underlie the administration of justice through law. Included among these is the
principle that no one shall be liable to penalty or punishment without a fair
hearing; and the principle that he shall not suffer conviction at the hands of
another who is both his prosecutor and his judge; and the principle that he
shall not be judged by one in whom there is a reasonable apprehension of bias.
These principles, in their modern
appreciation, have had a stunted application at best in the summary procedures
that have for long characterized judicial control of various types of contempt,
whether committed in the view of the Court or out of Court. Practice over the
years has purified any historically-based misgivings about the regularity of
summary procedures as alternatives to ordinary trial by jury: see Fox, History
of Contempt of Court, 1927, passim. Those procedures consisted of
committal, which could be immediate, in the case of contempts in the face of
the Court, and of attachment and examination, or of attachment without
examination, in the case of contempts committed out of Court. They had and have
their justification in the need, according to circumstances, to deal
immediately with any obstruction or outrage affecting the conduct of judicial
proceedings or interfering with the orderly processes of the law or involving a
disobedience to the orders of a Court or judge.
There has been, and in my view
properly so, a continuing concern by Courts and judges about the magnitude of
the power to punish contempt by summary process. Statutory controls have been
introduced in some common law jurisdictions, and rules of court in others have
given some form and precision to the time-honoured
[Page 458]
procedures of committal and
attachment. The details of these reforms are immaterial for the present case.
What is relevant is the observation by Lord Russell of Killowen in Regina v.
Gray,
at p. 41, that jurisdiction to deal with contempt brevi manu, that is,
summarily, should be exercised with scrupulous care and only when the case is
clear and beyond reasonable doubt; "because, if it is not a case beyond
reasonable doubt, the Courts will and ought to leave the Attorney General to
proceed by criminal information"; or, I may add, by indictment.
Alternatively, a judge who proceeds summarily, at least in the sense of
initiating the proceedings, may in a case where the contempt is not obvious,
wisely choose to conduct it in accordance with the rules that ordinarily
prevail in a non-jury trial. In such a case, the principles to which I have
adverted above should have a place.
Indeed, unless necessity or
special circumstances require the modification or suspension of any of the
aforementioned principles, there is every reason, subject to applicable
statutory direction, to apply them in contentious contempt of Court proceedings
as fully as they are now applied in other branches of the law, as, for example,
in the field of administrative law.
With these preliminary
observations I turn to the facts and issues in the present case.
The appellant is a member of the
Ontario Bar who was found guilty of contempt in the face of the Court by His
Honour Judge Walter Martin. The finding was made in summary proceedings
initiated and conducted by the judge who called and examined witnesses, cross-examined
witnesses for the appellant and also acted upon his own asserted knowledge of
facts bearing on the
[Page 459]
citation for contempt. Indeed,
after the examination and cross-examination of witnesses called by the judge,
he proceeded to make a statement of his own as part of the record of evidence.
Objection was taken to the accuracy of some parts of the statement and he was
invited to submit to cross-examination. He refused saying, "I made
statements of fact; that is what took place."
Another member of the Bar of
Ontario was cited by the judge along with the appellant, but he is not before
this Court because of his death by drowning before the hearing. I mention him
because he was represented by counsel before Judge Martin, and that counsel
made some observations about the difficult if not impossible position of Judge
Martin as witness, prosecutor and judge in the contempt proceedings. Counsel
for the appellant associated himself with these remarks to which I will return
later in these reasons.
An appeal was taken from the
conviction of contempt to the Ontario Court of Appeal which quashed the appeal
without any recorded reasons. It is a safe surmise, if it is not common ground,
that the Ontario Court of Appeal founded itself on s.9 of the Criminal Code
which, in the case of a conviction of contempt in the face of the Court,
permits an appeal only against the punishment imposed but not against the
conviction. It was relief from the conviction that the appellant sought there.
Leave to appeal was sought from this
Court both under s. 597 of the Criminal Code and under s. 41 of the Supreme
Court Act, and, in addition, appellant asked for an order of certiorari
under s. 61 of the Supreme Court Act. Leave to appeal simpliciter
was granted and, on the same day, March 31, 1970,
appellant issued as well a notice of appeal as of right.
The threshold question in this
Court is its jurisdiction to entertain this appeal. There is no basis for an
original invocation of certiorari and
[Page 460]
I put it to one side: see Hind
v. The Queen,
at p. 237. The fact that leave was granted does not preclude reconsideration by
this Court sitting on the appeal proper. I address myself first to the question
whether an appeal lies under s. 41 of the Supreme Court Act. Unless the
present appeal is caught by the exclusionary terms of s. 41 (3), or unless it
is governed entirely by s. 9 of the Criminal Code, leave could be given
under s. 41(1) as a foundation for a hearing on the merits. I may at this point
dispose of an alternative contention of the appellant, which was to the effect
that leave could be related to the conviction or judgment of Judge Martin as
being that of the highest Court of final resort in Ontario in
which judgment could be had in this case. That is simply not so; and, moreover,
leave was not sought on that basis.
Is a conviction of contempt of
Court a conviction of an indictable offence (in which case reliance on s. 41
must be abandoned), or is it a conviction of an offence other than an
indictable offence (in which case leave to appeal may be given on the question
of law or of jurisdiction)? The answers to these questions depend on the
determination of a prior issue which was not canvassed at the hearing and which
was implicitly but not explicitly dealt with in Poje v. Attorney General for
British Columbia. That
prior issue concerns legislative power to regulate contempt of Court in its
substance and in its procedural aspects and to give rights of appeal in respect
thereof to provincial appellate Courts. The present case appears to have
proceeded on the ground that the alleged contempt fell within the class of
criminal contempts as contrasted with civil ones. The question that arises here
is whether the distinction or the classification has a constitutional
significance in relation to legislative power. The
[Page 461]
majority of the Court in Poje
thought that it did because they referred to In Re Storgoff.
At the time of the Poje case, the present s. 9 of the Criminal Code
had not been enacted, and because of the conclusion that the contempt was
criminal it was held by the majority in Poje that there was no right of
appeal to the provincial appellate Court. There was no indication in that case
that leave to appeal to the Supreme Court had been sought or could be given; and,
indeed, in view of the conclusion that there was no right to go to the
provincial Court of Appeal, that did not need consideration.
Although I do not consider myself
foreclosed from reexamining the question, I take it for the purposes of the
present case (especially when counsel proceeded on this basis) that the alleged
contempt here was criminal in a sense involving federal legislative
jurisdiction in relation to the criminal law as well as to federal legislation
dealing with rights of appeal to the Supreme Court.
In returning to the question of
the nature of the offence, indictable or not, involved in a conviction of
criminal contempt of Court, I point to s. 108 of the Criminal Code which
is broad enough to embrace criminal contempt resulting from disobedience of an
injunction order, and which, consequently, would put criminal contempt in the
category of indictable offences. It is the fact that in Re Tilco Plastics
Ltd. v. Skurjat et al., Attorney-General for Ontario v. Clark et
al.,
Gale C.J.H.C. (as he then was) rejected a contention that the Attorney-General
should have proceeded under s. 108 instead of by originating notice of motion,
but that was because of his view that s. 108 itself conditioned its application
by reason of the qualifying words therein "unless some… other mode of
proceeding is expressly provided by law". There was, in his opinion,
another prescribed mode of proceeding, that mode being the summary procedure
long
[Page 462]
known to the common law. The
particular procedural question that was before the learned Chief Justice is not
in issue here, but I refer to s. 108 because it assists in characterizing
criminal contempt for the purposes of s. 41 of the Supreme Court Act and
also for the purposes of s. 597 of the Criminal Code.
The Tilco Plastics case is
a useful reference on two other grounds. First, it carries the reminder that s.
8 of the Criminal Code, in abolishing common law offences, expressly
reserved "the power, jurisdiction or authority that a court, judge,
justice or magistrate had [previously] to impose punishment for contempt."
Second, the Ontario Court of Appeal, which affirmed the judgment of Gale
C.J.H.C., refused leave to appeal to this Court on the ground that the judgment
sought to be appealed was in a criminal cause within s. 40 of the Supreme
Court Act, and hence it had no jurisdiction to give leave under s. 38: see
[1967] 1 O.R. 609. The final act in the Tilco Plastics case was the
refusal of this Court to give leave to appeal: see [1966] S.C.R. (VII) (sub
nom. Clark v. Attorney General of Ontario.) I have
examined the record in connection with the application for leave (it was
dismissed on November 7, 1966) and it reveals that the application was founded
on s. 41 of the Supreme Court Act and s. 597 of the Criminal Code.
There is not, within the compass
of federal criminal law and federal legislation respecting appeals to this
Court, any other classification within which criminal contempt of Court can
fall save that of being either an indictable or a nonindictable offence. The
continued recognition of summary process to deal with an alleged criminal
contempt is not a conclusive factor in deciding to which of the two
classifications it must be assigned. Having regard to s. 8 and s. 108 of the Criminal
Code, already mentioned, the matter is not completely at large; and s. 9,
to which I will come, also has a bearing.
[Page 463]
The development and general use
of the summary procedures of committal and attachment did not change the
quality of a criminal contempt, which had historically been an indictable
offence, and as well one that could be prosecuted by criminal information: see
3 Holdsworth, History of English Law, 5th ed., 1942, pp. 392-4; 8
Halsbury, Laws of England, 3rd ed., 1954, p. 3; Oswald, Contempt of
Court (Canadian edition), 1911, p. 7. Although resort to indictment and
criminal information became infrequent, these procedures remained, and examples
thereof are collected in Fox, History of Contempt of Court, 1927, passim
and appendix; and see also Ziegel, "Some Aspects of the Law of Contempt of
Court in Canada, England and the United States", (1960) 6 McGill L.J.
228, at p. 256. As I have already indicated, indictment is still available in
this country for the trial of criminal contempts.
It follows from the foregoing
that no appeal lies in this case under s. 41 of the Supreme Court Act,
Whether an appeal lies under s. 597 of the Criminal Code depends on the
route that the criminal contempt proceeding followed. If it was dealt with
summarily—and that was the case here—the right of appeal must be found through
s. 9 of the Criminal Code and not through s. 583. The latter speaks of
an appeal to the provincial Court of Appeal by a person who is convicted
"in proceedings by indictment", and resort to s. 597 to bring the case
to this Court is limited accordingly.
It is not, in my opinion,
arguable that s. 9 provides the only avenue for appeal in the case of a
conviction for criminal contempt. That section operates only where the alleged
contempt is treated summarily, and it hence leaves an avenue for appeal if the
contempt proceedings are by indictment. Section 9 reads as follows:
(1) Where a court, judge,
justice or magistrate summarily convicts a person for a contempt of court
committed in the face of the court and imposes
[Page 464]
punishment in respect
thereof, that person may appeal against the punishment imposed.
(2)Where a court or judge
summarily convicts a person for a contempt of court not committed in the face
of the court and punishment is imposed in respect thereof, that person may
appeal
(a) from the
conviction, or
(b) against the
punishment imposed.
(3) An appeal under this
section lies to the court of appeal of the province in which the proceedings
take place, and, for the purposes of this section, the provisions of Part XVIII
apply, mutatis mutandis.
Having regard to these
provisions, it remains to be determined whether the alleged contempt was
committed in the face of the Court or not. The view taken by the convicting
judge is not conclusive on the question whether the contempt was committed in
the face of the Court. Again, a wrong decision by the Ontario Court of Appeal
on the characterization of the contempt as one committed in the face of the
Court will not preclude an appeal against the conviction of contempt under s.
597, albeit that Court quashes the appeal to it in reliance on its
characterization.
The appellant had undertaken to
defend a convicted person against an application to have him declared an
habitual criminal. The appellant and Crown counsel appeared in the matter
before Judge Martin on July 21, 1969. The appellant had advised Crown counsel
of his intention to challenge the validity of the habitual criminal provisions
and filed a notice of motion to that effect, a copy of which was before Judge
Martin. In the circumstances, the proceedings were adjourned to September 9,
1969 at 10.30 a.m.
The transcript of proceedings in
the matter on the morning of September 9, 1969, contains a statement by Judge
Martin that he had been attended in chambers by Crown counsel and by
[Page 465]
Mr. David Griner, a barrister and
solicitor, and was advised by the latter that the appellant was ill but there
was a possibility that he would be able to proceed the next day; and, moreover,
Mr. Griner advised that he would act as counsel if the appellant was not well
enough to proceed. The matter was thereupon adjourned to 10 a.m. of the
following day.
In the statement that he read
into the record in the contempt proceedings Judge Martin said that the
appellant had telephoned him at about 9.45 a.m. on September 9, 1969, advising
that he would be a little late but (Judge Martin said) the appellant made no
mention of illness.
The appellant gave evidence in
the contempt proceedings, testifying to the preparations he had made for
defending the habitual criminal application. He also testified to feelings of
exhaustion that had begun to affect him in the preceding summer. He worked long
hours over the weekend of September 6, and felt so unwell on Monday, September
8 that he asked Mr. Griner to appear in his stead on two sentencing matters
fixed for that day, and this Mr. Griner did. He also arranged with Mr. Griner
to appear for him on September 9 and ask for a day's adjournment. He said that
he stayed home on September 9 until the evening when he went to his office. He
did not recall calling Judge Martin that day, but said it must have been Monday
(September 8) and Wednesday (September 10) that he spoke to the judge.
There is in the record before
this Court a transcript of proceedings which took place in the afternoon of
Wednesday, September 10, 1969. Neither the appellant nor Mr. Griner had
appeared that morning for the accused in the habitual criminal application.
Crown counsel advised that he understood that the appellant was under doctor's
care and said that an articled student from the appellant's office was in
court. The accused spoke up to say that he was informed
[Page 466]
by the appellant's assistant that
the appellant had been taken to hospital from the barristers' robing room.
Judge Martin then stated, according to the transcript, that the appellant had
telephoned him shortly after 10 a.m. that either he or Mr. Griner would appear,
either at 10.30 a.m. or 11 a.m. Neither had appeared and he would order them to
show cause why they should not be cited for contempt.
In the statement that he made in
the contempt proceedings, Judge Martin referred to the telephone call by the
appellant on September 10, and added that the appellant said nothing about
suffering from any illness nor did he say he was sick. Appellant's testimony in
the contempt proceedings was that he told Judge Martin during the telephone
call that he was not feeling particularly well but he was prepared to proceed.
He went to the court-house with an investigator, whom he asked to accompany him
because he was feeling dizzy. (He had gone to his office at 7.30 that morning
after working late the previous evening.) When he reached the robing room he
felt progressively worse and lay down, and then lost consciousness. Some two to
three hours later, after 2 p.m., he left the building with the investigator who
drove him to a hospital in Guelph while the appellant slept in the back of the car.
The hospital would not admit him and they returned to Toronto. The
investigator telephoned a Dr. Bernstein from the highway, and arranged for him
to see the appellant. In evidence that he gave at the contempt proceedings the
investigator testified to the same facts, save that he fixed the time of
leaving the court-house as being about 1.45 p.m.
The appellant's articled student
and his legal secretary gave confirmatory evidence that he looked exhausted and
ill in the material period September 8 to September 10. Dr. Bernstein, a
general practitioner for two years, testified that he saw the appellant in the
evening of September
[Page 467]
10 at his office and that
preliminary tests, given after taking a history, indicated a diabetic
condition. The appellant was given a glucose tolerance test later, and the
results were positive for diabetes. The doctor put the appellant on oral
medication and a diabetic's diet. By the time of the contempt proceedings on September 25, 1969,
the appellant's sugar levels had been brought under control. Save for two days
on which he went for tests, the appellant (according to his testimony) had been
at home since his collapse, and the day of the contempt proceedings was his
first downtown since he came under doctor's care.
The contempt proceedings were
initiated by Judge Martin by a letter to the appellant and to Mr. Griner
directing them to appear before him "to show cause why you failed to
appear as counsel [in the habitual criminal proceedings] on Tuesday, the 9th
day of September, 1969 at 10.00 a.m. and Wednesday, the 10th day of September,
1969, at 10 a.m." The judge proceeded entirely suo motu, no one
appearing on behalf of the Attorney-General to conduct the proceedings. He
called three witneses (in addition to making a statement of facts of his own)
and examined them. The first, a commissionaire on duty in the barristers'
robing room, testified that the appellant was there in the early afternoon of
Monday, September 8, 1969, was in the toilet for a considerable time, and then
in the common room and did not leave until after 4 p.m. He was worried that the
appellant was "sick, deathly sick". He saw the appellant on Wednesday
morning, lying down on a chesterfield, and said that he could see that the
appellant was sick. Asked directly about possible intoxication he replied
"No I was close to him and I would swear that man had no drink in his
body. He was in complete shell shock."
The second witness was the
administrator of the court-house who said he spoke to the appellant on Monday,
September 8 while the appellant
[Page 468]
was in a small washroom cubicle
and asked him if he was ill. The appellant replied "No, I am all
right." On Wednesday, he saw the appellant lying on a chesterfield in a
room in the court-house, and it appeared to him that the appellant, who was
muttering, "was either under the influence of alcohol or drugs or he could
have been mentally ill." On cross-examination he said that it would be
difficult to say that the appellant was "obviously ill" but in his
condition he should not be appearing in court. The witness was not familiar
with diabetes or its effects.
The third witness called by Judge
Martin was a police officer, interested in the habitual criminal proceedings.
He testified that he saw the appellant in the morning of September 10, 1969,
heading toward the elevators on the main floor of the court-house. He had no
conversation with him, but observed the appellant walk about twenty feet. It
was the police officer's opinion that the appellant was under the influence of
either barbiturates or alcohol. He observed the appellant for less than a minute.
He knew him as a person who generally walked hurriedly and directly but on this
occasion he appeared to be unsteady. The witness was not familiar with diabetes
or its effects.
The appellant denied that he had
any drugs or alcohol in the period September 8 to 10. His articled student, his
legal secretary and the investigator said that they did not see him take any
drugs or alcohol nor did he give any indication of having taken any. Dr.
Bernstein testified that there was no indication when he saw the appellant on
September 10 that he had been drinking or taking drugs. He stated that a layman
could mistake the symptoms of diabetes as indicating that the diabetic was
under the influence of drugs or alcohol.
On the evidence which I have
recounted, Judge Martin found that the sole cause of the appellant's failure to
appear in court on September 9 and 10 was that he was intoxicated by alcohol or
drugs. The judge accepted the evidence of the court administrator and the
police officer "with-
[Page 469]
out reservation". He
disbelieved the appellant and disbelieved Dr. Bernstein; and, of course he must
have disbelieved the commissionaire, a witness he had called, and disbelieved
or refused to accept the evidence of the articled student, the legal secretary and
the investigator.
The legal conclusion to which the
judge came on his finding of fact was that "[the appellant's] failure to
appear due entirely to being intoxicated by alcohol or drugs constitutes
conduct abusive of the administration of justice and is contempt in the face of
the court." No authorities were cited, nor was any rationale provided, to
support the conclusion as to the character of the contempt. Judge Martin
indicated in his reasons that he was aware that an inferior Court has no
jurisdiction to punish summarily for a contempt not in the face of the Court.
Three questions arise for
consideration. First, is a counsel's unjustified failure to appear on behalf of
a client a contempt in the face of the Court or a contempt not in the face of
the Court? Second, if it is the latter, was the appellant properly convicted of
a contempt in the present case? Third, if it is the former and there was no
contempt in the present case, is an appellant in the position of the accused
without remedy against an unjustified conviction? This third question is easily
answered. On the assumption that the appellant's conviction was for a contempt
in the face of the Court, he would have no right of appeal under s.9 of the Criminal
Code, and his only recourse would be by certiorari to quash the
conviction. In this respect he would be governed by the scope of that remedy,
but it would reach a conviction made in violation of natural justice or fair
process. I shall consider the matter of fair process in this case when dealing
with the second question that I have put.
[Page 470]
Absent any right of appeal
against a conviction for criminal contempt by an inferior Court, certiorari
is the only remedy to challenge it: cf. 17 Corpus Juris Secundum,
No. 117, pp. 310-313. I would not agree that the remedy is ousted merely
because the contempt was the subject of summary proceedings by the judge in or
in respect of whose inferior Court the contempt occurred. In the present case,
for reasons that appear below, my opinion is that the contempt conviction was
vulnerable to certiorari to quash.
I turn now to the question of the
character of the contempt laid against the appellant. He was cited not for
intoxication (whether by alcohol or drugs) in the court or in its precincts,
but for being absent when as counsel he had a duty to appear to defend an
accused in a criminal proceeding. The intoxication went to the want of
justification for his absence. There is no doubt that the Court, Crown counsel
and witnesses were inconvenienced by appellant's failure to attend.
In Izuora v. The Queen,
the Judicial Committee held that counsel's failure to appear for the giving of
judgment, although so directed by the Court, was not a contempt at all, albeit
a discourtesy and a dereliction of duty to the client. It was unnecessary,
therefore, to consider whether, if it was a contempt, it was in facie
curiae, and hence I put this case aside.
Contempt in the face of the Court
is, in my view, distinguished from contempt not in its face on the footing that
all the circumstances of the alleged contempt are in the personal knowledge of
the Court. The presiding judge can then deal summarily with the matter without
embarrassment of having to be a witness to issues of fact
[Page 471]
which may be in dispute because
of events occurring outside.
The distinction is evident from 4
Blackstone, Commentaries on the Law of England, 18th ed., 1829, at p.
286, where he says:
If the contempt be committed
in the face of the court, the offender may be instantly apprehended and
imprisoned, at the discretion of the judges without any further proof or
examination. But in matters that arise at a distance, and of which the court
cannot have so perfect a knowledge, unless by the confession of the party or
the testimony of others, if the judges upon affidavit see sufficient ground to
suspect that a contempt has been committed, they either make a rule on the
suspected party to show cause why an attachment should not issue against him,
or in very flagrant instances of contempt the attachment issues in the first
instance.
Earlier in his treatise, he had
referred to contempts "that … are either direct, which openly insult or
resist the powers of the courts or the persons of the judges who preside there;
or else are consequential which (without such gross insolence or direct
opposition) plainly tend to create an universal disregard of their
authority" (at p. 283). This suggests that he equated contempts in the
face of the Court and direct contempts, but although the latter may embrace the
former I do not think that they are necessarily the same.
Section 9 of the Criminal
Code, in making the distinction between contempts in the face of the Court
and contempts not in its face, did not attempt to define the two classes; and
Courts have abstained from doing so, save in the most general terms and by
reference to obvious examples: see Izuora v. The Queen,
at p. 336; Parashuram Detaram Shamdasani v. King-Emperor,
at p. 268.
[Page 472]
Blackstone's definition has been
cited with approval by the Supreme Court of the United States (see Ex parte
Terry,
at p. 307), and federal legislation in that country and the rules of federal
procedure respecting punishment for contempt appear to have taken a similar
limited view of criminal contempt of Court in the statutory reference to
"misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice": see 18 U.S.C.A. No. 401. I note
that judicial construction of the "obstruct" clause has been to
require physical proximity and not merely a casual one: see Nye v. United States, at p.
49. Even so, it has been observed that there is a difference between the scope
of the words "in the presence of the court" and the narrower phrases
"under the eye or within the view of the court", "in open court",
"in the face of the court", or "in facie curiae":
see Cooke v. United States, at p.
536.
In this Court, Strong J. referred
in In re O'Brien,
at p. 208, to contempt in the Court's presence (sedente curia), in
effect assimilating it to contempt in the face of the Court. There may be
statutory reasons, as in the United
States, for making the distinction, but
I am content in this case not to differentiate for the purposes of s. 9 of the Criminal
Code between contempt in the face of the Court and contempt in its
presence.
In the same way, there may be
direct contempts which are not in the face of the Court, as, for example, where
a derogatory letter is delivered to a judge in chambers (see Note, "Civil
and Criminal Contempt in the Federal Courts", (1947-48) 57 Yale L.J.
83, at p. 89). It is the more important therefore to dwell on the very words
used in the Criminal Code. Further, since the ambit of appeal given by
s. 9 depends on the
[Page 473]
distinction between contempts in
the face and those not in the face of the Court, I am not disposed to cut it
down by an enlarged construction of the words "contempt of court committed
in the face of the court". The affirmation of summary power to deal with
contempts of both classes reinforces my view that the construction should be
strict.
Apart from the Izuora
case, already mentioned, the only judicial authorities on the very question in
issue here appear to be a series of judgments in American State Courts. I have
examined five of them. Three, all from California, are to the effect that counsel's failure to appear
is a contempt "in the presence of the court", equated with a
"direct contempt": see Chula v. Superior Court of
California;
Arthur v. Superior Court of
Los Angeles County; and Vaughn
v. Municipal Court of Los Angeles Judicial District.
The latter two cases rest in the main on the first, Chula, on which
counsel for the respondent relied. The two that hold that counsel's failure to
appear is not a contempt in the Court's presence are Ex partie Hill,
a judgment of the Supreme Court of Texas, and District Attorney for Alamosa
County v. District Court of Alamosa,
a judgment of the Supreme Court of Colorado. I would also refer to Behn
v. President and Members of the Court of Arbitration,
in which the Supreme Court of Western Australia held that the failure of a
witness to reappear to continue his evidence was not a contempt in the fact of
the Court.
The Court in the Hill case
said flatly that "the offence of being absent from court could not take
place in the presence of the court" (supra, at
[Page 474]
p. 368). In the Colorado
case, the Court dealt with the matter as follows (supra, at p. 273):
It is doubtless true that
failure of the district attorney to be present in person or by an official
representative resulted in some inconvenience and delay in the transaction of
business pending before the court on February 1, 1962. One who thus willfully
and intentionally brings about such a result, by conduct committed in the
presence of the court, would be guilty of a direct criminal contempt; however
in the instant case it is apparent that the question of whether there was any
willful intent thus to interfere with the administration of justice depends
upon whether facts which are asserted on the one hand and denied on the other
are true or false. The answer of respondent has exhibits attached thereto in
the form of affidavits concerning matters which happened outside the presence
of the court, and thus the answer itself discloses that the contempt of which
petitioner was found guilty, if any, did not take place in the presence of the
court.
These two cases, like the Chula
case, which I propose to consider, involved a characterization of the contempt
for the purpose of deciding whether the Court could deal with it summarily in
accordance with the procedures of the particular jurisdiction. In Chula,
the Supreme Court of California split four to three on the question of the
character of the alleged contempt. Gibson C.J. in a concurring judgment, which
produced the majority result, recognized the situation as a "hybrid"
one, in that "the charge of contempt arose from events occurring in the
presence of the Court which it is claimed should be excused by matters taking
place outside the courtroom." (supra, at p. 112).
The judgment in which Gibson C.J.
concurred proceeded, under the facts therein, on the basis that "the
failure of an attorney, without valid excuse, to be present in court at the
announced time for the sentencing of a client whom he is representing constitutes
a contempt committed in the immediate view and presence of the court, and
[Page 475]
hence a direct contempt which the
court is empowered to punish summarily under s. 1211 of the Code of Civil
Procedure" (supra, at p. 110). It was opposed by the dissenting view
of a very distinguished jurist, Traynor J., later Chief Justice of California,
a post from which he recently retired.
So far as there is any assistance
on principle to be had in the present case from the views in Chula, I
prefer those of Judge Traynor, speaking for himself and two others. As he
points out, the classification of the contempt in question "is merely a
semantic device for differentiating contempts that can be adjudicated summarily
from those that can be adjudicated only after adequate notice and
hearing"; and he adds the relevant remark that "When a contempt
occurs within the immediate view and presence of the court the judge is fully
informed of all facts necessary to adjudicate the guilt or innocence of the
alleged contemner" (supra, at p. 113). In this connection, I would
observe that if the present case were one where counsel, in the presence of the
Court and while it was in session, announced that he would not appear at a
later day fixed for a hearing requiring his presence, it would present a
different situation than the one in issue. According to Judge Traynor's
citation of authority, the California Courts are out of step with the course of
decision on the problem in the United
States. I note too that Judge Traynor
stayed with his dissent in the succeeding Arthur case, cited above.
There is another factor in the
present case bearing on the character of the contempt which is worth
mentioning, although I do not regard it as conclusive. The very procedures that
Judge Martin used to deal with the alleged contempt support the conclusion that
it was not one in the face of the Court. He found it necessary to rely on the
testimony of witnesses to events occurring outside of his view, and outside of
his presence in
[Page 476]
court as presiding judge in the
habitual criminal proceedings. He did not so act in obedience to any statutory
direction and under the compulsion of any rules of court.
I conclude that the contempt
alleged against the appellant was not one in the face of the Court, or, at worst,
not one wholly in the face of the Court so as to deprive him of a right of
appeal against conviction. On this view, there was no right in Judge Martin to
proceed summarily, unless it be the case that the introduction of s. 9 of the Criminal
Code enlarged the common law power of an inferior Court, subject to a right
of appeal. It should be observed that s. 9(1) speaks of "a court, judge,
justice or magistrate" while s. 9(2) speaks only of "a court or
judge". The latter terms are not defined either generally or for the
purposes of s. 9, but they are broad enough to include a County Court and a
judge thereof. I am prepared to assume, without deciding, that Judge Martin had
the power to punish summarily for a contempt committed not in the face of the
Court, and I proceed on this basis to consider the second of the three
questions that I have set.
Whether the appellant was
properly convicted of the contempt for which he was cited depends on (1) the
fairness of the process to which he was subjected and (2) the proof on which
the conviction was founded. On both of these points, I conclude that the
conviction cannot stand. On the first point, I refer to the remarks of counsel
for Mr. Griner when addressing Judge Martin at the conclusion of the evidence
in the contempt proceedings and objecting in that address to the way in which
the proceedings were initiated and conducted:
That is not the way our
Courts proceed. There isn't a Crown Attorney here who one would ordinarily have
thought would be somebody other than Mr. McGee. [the Crown Attorney in the
habitual criminal
[Page 477]
proceedings] to have led the
evidence. Your Honour has led the evidence and it is obvious from the questions
that Your Honour has directed, that Your Honour has interviewed, or had them
interviewed on your behalf, otherwise you could not have asked the questions
that you have. Your Honour then rules on the propriety of questions asked of
these witnesses by both Mr. O'Connor and myself and then reexamine the
witnesses after cross-examination.
So far as the witnesses as
Mr. O'Connor has called they have given their testimony and Your Honour has cross-examined
them even to the point of asserting directly to Mr. McKeown that my client, Mr.
Griner, had made certain flat statements to Your Honour in your Chambers. I
say, whereas here my client is in a position where his professional reputation
is at stake, and indeed his liberty is at stake, that if Your Honour wants to
proceed, it is a proper case for making a report to the Attorney General and the
Attorney General could retain Counsel and we would proceed in the ordinary
course and Counsel so retained, would be independent and would call such
evidence as he saw fit, and another judge would listen to the evidence without
having the benefit or disadvantages, as the case may be, of Your Honour's
personal knowledge of the case.
These remarks summarize the
cardinal principles of fair process by which the present case should have been
governed. Where the judge has to be and is a witness to facts which are in
issue, he cannot, in my opinion, rely on a rule of discretion to justify him in
proceeding to judge the issue. Trial of a contempt charge by summary process
does not necessarily mean trial before the very judge involved in the
proceedings out of which the contempt arises. Indeed, it is the preferable
course, where conditions do not make it impracticable, or where there will be
no adverse effect upon the pending proceedings by the delay, to have another
judge conduct the contempt charge: see Offutt v. United States.
Moreover, as is obvious from the way in which Judge Martin conducted the
contempt hearing, summary process
[Page 478]
need not mean that no witnesses,
other than the alleged contemnor, will be heard, nor should it be taken to mean
that the presiding judge can also be witness and prosecutor where, as in this
case, it was neither urgent nor imperative that he so act. The rules of natural
justice that judges have so firmly fashioned for non-curial tribunals must have
equal validity for them, unless there be compelling reasons against their
application. There are none here.
The present case was not one in
which the facts surrounding the alleged contempt were so notorious as to be
virtually incontestible, nor was it one where the events upon which the
contempt was based took place in the full view and appreciation of the Court.
It would have been the prudent course in this case either to have the attorney
general assume the carriage of the proceedings before another judge (see Regina
v. Gray,
and Cooke v. United States)
or to invoke the jurisdiction of the Supreme Court of Ontario to punish
summarily an alleged contempt of an inferior Court (see Rex v. Davies);
or if they were to take place before Judge Martin, then only before him acting
as a purely disinterested adjudicator, passing on evidence adduced by others
through witnesses called by others.
Judge Martin was in an impossible
position when he gave evidence which was challenged by other testimony and yet
was not amenable to cross-examination; and, further, when he had to make
findings of fact which depended in part on reliance on his own evidence (or on
his statement of facts, as he termed it). The late Professor Beale put the
dilemma well in an early article, "Contempt of Court, Criminal and Civil",
(1908) 21 Harv. L. Rev. 161, at p. 172, as follows:
A danger always exists in
the punishment of any contempt by summary process by the judge who has suffered
from the contempt; he is made both
[Page 479]
judge and jury in his own
case, he passes on the facts and on the law, and determines the punishment.
Such a power in the hands of an angry man is, of course, subject to abuse; and
judges, being human, are subject to anger like other men.
There were in this case fatal
defects beyond those residing in a denial of natural justice. Although the
contempt proceedings may have been initiated by a show cause citation, this
does not dispense with the right of the appellant to have his conviction meet
the test of proof of guilt beyond a reasonable doubt; certainly not where, as
in this case, he has met any initial onus of adducing evidence. Authority on
this question may be lacking in England (see (1962) 25 Mod. L. Rev. 178 at p. 181)
and in Canada, but it exists in the United States and in Australia:
see Gompers v. Bucks Stove & Range Co.;
Michaelson v. United States; The King v. Fletcher, ex p. Kisch. These cases hold that the presumption of innocence
applies in criminal contempts not in the face of the Court, and the alleged
contemnor must be proved guilty beyond a reasonable doubt. Dealing as we are
with a provision of the Criminal Code in relation to a criminal
conviction I know of no reason for rejecting the application of this same
standard to the case at bar.
Judge Martin nowhere in his
reasons showed an awareness of any obligation to meet this standard, and there
is consequently a fatal infirmity in the conviction on this ground as well.
That is not all. In his findings
of fact he has relied on an exaggerated estimate of power to pass on
credibility without providing any rational basis for so doing. He was dealing
with the reputations of two professional men, a lawyer and a doctor. The latter
gave expert opinion evidence on a medical question on which Judge Martin could
[Page 480]
not have any personal competence;
and this opinion evidence was not challenged in any way. How then can the
doctor be completely discredited in what he said? Nothing in his examination or
cross-examination showed up any contradiction in his medical testimony. I do
not think that a mere ipse dixit is enough to wipe out testimony of
professional men in respect of issues touching their professional reputations:
see Regina v. Chapman.
Moreover, a judge who is also a trier of fact cannot simply deny weight to
unshaken evidence on the ground that he is assessing credibility. This has been
a long established doctrine in the Ontario Court of Appeal: see Rex v. Gun
Ying; Regina
v. McCullough. In this Court too, there have been warnings against
arbitrary rulings on credibility: see White v. The King.
To find intoxication in the
present case, and hence to conclude that the failure to appear was unjustified,
is to give testimonial cogency to evidence that is not far short of surmise,
when related to other evidence in the case by witnesses much better situated to
speak to that fact. No one testified to any odour of alcohol; the evidence on
this was that there was none. The only adverse evidence was to the effect that
the appellant was momentarily seen to be unsteady on his feet and that he mumbled
when seen lying on a chesterfield, symptoms that are consistent with the
diagnosed illness. The adverse evidence defies the principle of proof on a
balance of probabilities let alone proof beyond a reasonable doubt.
I would allow the appeal, set aside
the conviction and discharge the appellant from any taint of contempt.
[Page 481]
Appeal dismissed, SPENCE
and LASKIN JJ. dissenting.
Solicitors for the
appellant: McCarthy & McCarthy, Toronto.
Solicitor for the
respondent: W. C. Bowman, Toronto.
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