R. v. Clement, [1981] 2 SCR 468

Supreme Court of Canada

R. v. Clement, [1981] 2 S.C.R. 468

Date: 1981-10-06

Her Majesty The Queen Appellant;

and

John William Wallace Clement (Accused) Respondent.

1981: June 21; 1981: October 6.

Present: Martland, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Contempt of Court—Jurisdiction—Criminal law—Criminal charge laid for disobeying superior court. order in civil matter—Criminal Code provision excluded if “other mode of proceeding… expressly provided by law”—Whether Criminal Code provision excluded by inherent power of superior court to punish for contempt—Criminal Code, R.S.C. 1970, c. C-34, ss. 8, 116.

The respondent was arrested and taken into custody on a charge under s. 116(1) of the Criminal Code for disobeying a court order of a civil nature. The respondent filed a motion in the Court of Queen’s Bench for Manitoba which made an order, upheld by the Court of Appeal, quashing the information and discharging the respondent on the ground that the subsection (s. 116(1) of the Code) is not applicable where there is an express method of enforcement provided by law. The general power of the court to enforce its orders through contempt proceedings was held below to constitute a “mode of proceeding expressly provided by law”.

Held: The appeal should be allowed and the order quashing the charge set aside.

The natural meaning of “by law” contained in “unless some penalty… is expressly provided by law” as set out in s. 116(1) of the Code is “by statute law”. Since the common law is precluded as a source of law wherein such penalty can be expressly provided a charge of contempt of court under the subsection is applicable whenever statute law does not expressly provide a method of enforcement, as in this case, where no other section of the Criminal Code and no Rules of Court have so expressly provided.

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Boggs v. The Queen, [1981] 1 S.C.R. 49; Vaillancourt v. The Queen, [1981] 1 S.C.R. 69; Re Gerson, Re Nightingale, [1946] S.C.R. 538, referred to.

APPEAL from a judgment of the Manitoba Court of Appeal[1], dismissing an appeal from an order of Kroft J. quashing an information and a warrant of committal issued by Garson P.C.J. Appeal allowed.

William W. Morton, Q.C., for the appellant.

Len Fishman, for the respondent.

The judgment of the Court was delivered by

ESTEY J.—This is an appeal from the judgment of the Court of Appeal of the Province of Manitoba dismissing an appeal from an order of the Court of Queen’s Bench quashing an information and warrant of committal of a provincial court judge relating to a charge laid against the respondent under s. 116(1) of the Criminal Code, R.S.C. 1970, c. C-34. That section reads:

116. (1) 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.

These proceedings find their root in an order issued by Solomon J. in the Court of Queen’s Bench in a matrimonial dispute. The respondent is allegedly in breach of that order. With that issue we are not here concerned. The charge brought against the accused in Provincial Court alleged that the respondent, without lawful excuse, disobeyed the order of Solomon J. contrary to s. 116(1), supra. The respondent was arrested and taken into custody. The present proceedings originated in a notice of motion by the respondent, asking that the information and warrant of committal be quashed, and that he be released from custody. The chambers judge, with the approval of

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both counsel before him, “proceeded as if the… [respondent] was before the court” on the application for a “writ of habeas corpus and certiorari in aid and for an order quashing the information and detention affecting the applicant”.

The learned judge of first instance concluded that by reason of the availability, through the inherent power of a court to enforce its own processes, of the authority to provide a penalty for contempt of the order of the Court of Queen’s Bench, s. 116(1) of the Criminal Code, supra, was not available to the Crown. It can be observed that the trial court reached its decision with some uneasiness because of the fact that the universal availability of the contempt power, if it be construed as “some penalty or punishment or other mode of proceeding… expressly provided by law”, rendered the whole of s. 116(1) forever unavailable to the Crown and thus without meaning or purpose in the criminal law. The majority of the Court of Appeal, in dismissing the appeal, concluded that the remedy of contempt through the inherent powers of a court was “some penalty or punishment… expressly provided by law…” and therefore a charge could not be brought in these circumstances against the respondent. Matas J.A., speaking for himself and Freedman C.J.M., stated:

In my view, the inherent power of the superior court is not to be equated with an implied power.

In reaching this result His Lordship stated that he was not relying upon any distinction between civil and criminal contempt as a basis for interpreting s. 116(1), and he concluded:

…that the exercise by a superior court of its inherent power to deal with contempt is a mode of proceeding expressly provided by law and that proceeding by indictment is precluded in the case at bar.

Huband J.A. dissented from this view and concluded:

In my opinion, the remedying of a civil contempt through the inherent power of a superior court to do so,

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is not embraced in the phrase “… some penalty or punishment or other mode of proceeding… expressly provided by law”. A civil contempt charge can co-exist with a charge by indictment under sec. 116(1) of the Code. The authority to lay a charge under sec. 116(1) is not pre‑empted by the general jurisdiction of the superior court to deal with civil contempt.

In support of this conclusion, His Lordship observed:

While the inferior courts are entitled to deal with a criminal contempt in the face of the Court under sec. 440 of the Code, the judges of the inferior courts do not have the jurisdiction to deal with either criminal contempt which is not a contempt in the face of the Court, or civil contempt. Yet, it may be vital that obedience to the restraining order in a domestic dispute be achieved without delay. If the only recourse is a contempt proceeding in the superior court, there may be occasions in some areas of the country where valuable time will be lost. In these instances, the laying of a charge under sec. 116(1) of the Code may be a useful, practical instrument to prevent the wilful disobedience of the lawful order of an inferior court.

In order to apply s. 116(1) of the Code to these proceedings it is necessary to determine the meaning of the expressions:

(a) “disobeys a lawful order made by a court of justice”;

(b) the exclusionary clause “unless some penalty or punishment or other mode of proceeding is expressly provided”;

(c) the term “by law”.

The expression “lawful order made by a court of justice”:

(a) may be taken to refer to the order of a criminal court proceeding under the Criminal Code; or

(b) may be given a more extensive meaning as including orders made by a court with reference to any criminal statute or any quasi-criminal provision in a provincial statute; or

(c) may refer to an order made by a court with reference to any proceeding, criminal or civil.

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There is nothing in the section or any related provision of the Code to which the attention of the Court was drawn which would indicate that the words “lawful order” should be given a restricted meaning and be made to apply only to an order made by a court in a proceeding with reference to the Criminal Code, supra, or any other penal statute of Canada. The restriction “other than an order for the payment of money” would appear to indicate that the order of the court referred to in the opening words of the subsection includes any court order, criminal or civil. The legislative competence of the Parliament of Canada in criminal law under s. 91(27) of the British North America Act may in some circumstances extend to the attachment of criminal consequences to breaches of conduct proscribed in provincial legislation, for example s. 259 of the Code regarding marriages contrary to provincial law. (There are constitutional limits on the power whereby one sovereign authority (federal) might make it a criminal offence to breach a statute of another sovereign authority (provincial), a practice sometimes referred to as ‘piggybacking’: see Boggs v. The Queen[2]. No such argument was advanced in the present case.) Likewise there is no limitative rule invalidating the proscription of the violation of a “lawful order made by a court of civil justice”. I would conclude that the words “a lawful order made by a court of justice” as employed in s. 116(1) refer to an order of a court either criminal or civil in nature.

The subsection is made by its terms inoperative where “some penalty or punishment or other mode of proceeding is expressly provided by law”. Setting aside for the moment the meaning of the term “by law”, the meaning to be attributed to the words “expressly provided” must be ascertained. It is said by the majority of the Court of Appeal and the judge of first instance that the inherent power of a superior court of civil jurisdiction to cite for contempt is a mode of proceeding expressly provided by law. In the context of contempt, there are three possible sources of “some penalty or punishment or other mode of proceeding”:

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(a) that portion of s. 8 of the Criminal Code, supra, which refers to the power of the court to punish for contempt;

(b) the Rules of the Court of Queen’s Bench of Manitoba promulgated under The Queen’s Bench Act, R.S.M. 1970, c. C280; or

(c) the inherent power of a superior court to control its own processes and enforce its judgments by citation for contempt.

Section 8 of the Criminal Code, supra, provides:

8. Notwithstanding anything in this Act or any other Act no person shall be convicted

(a) of an offence at common law,

(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before the 1st day of April 1955, to impose punishment for contempt of court.

The concluding clause of s. 8 can hardly be said to “expressly provide” for a power to punish for contempt of court; that is to say there is no express enactment of such a power. Neither of the courts below so found, nor indeed does the respondent so argue. He did no more than submit in this Court that the section merely preserved the common law jurisdiction to punish for criminal contempt. In the recent case of Vaillancourt v. The Queen[3], this Court considered an argument that s. 8 provided for an offence against the Code. A juvenile was cited for contempt by a Superior Court judge. It was argued that such contempt was a violation of a “provision of the Criminal Code” within the terms of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 8(1), and thus under the exclusive jurisdiction of the Quebec Youth Court. Chouinard J., speaking for the Court, rejected this submission. Section 8, he said at p. 72, simply preserved the

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power enjoyed by a court at common law. Moreover, Chouinard J. noted in passing at p. 73:

It is possible that appellant could have been charged with disobeying an order of the Court under s. 116 Cr.C., or with obstructing justice under s. 127, and that in such a case only the Youth Court would have had jurisdiction, in accordance with the Juvenile Delinquents Act. However, it is not necessary to decide this point because that is not the case. [Emphasis added]

Assuming for the moment that the penalty or other mode of proceeding might be provided by provincial law, it is necessary to examine the potentially applicable Queen’s Bench Rules. These would appear to be rules 483, 485 and 492, which provide as follows:

483 A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal.

485 No writ of attachment shall be issued without the leave of the court, to be applied for on notice to the person against whom the attachment is to be issued.

492 Any corporation or individual disobeying a judgment, or guilty of any other contempt of court, may be fined. Such fine may be in lieu of, or in addition to, punishment by attachment, committal, or sequestration.

Rules 483 and 485 do not provide a penalty or punishment, nor do they provide, at least not expressly, for a mode of proceeding where a lawful order made by a court of justice has been disobeyed in the sense of contempt. While rule 492 provides that a fine may be imposed for contempt of court, in lieu of or in addition to, punishment by attachment, committal or sequestration, the rule does not, however provide the express penalty. It cannot be taken as a comprehensive provision dealing with contempt of court such as is obviously contemplated by the exception to s. 116(1). The rule, while providing a brief and imprecise recogni-

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tion of the continuing inherent power of the Court of Queen’s Bench to enforce its own process, cannot, by itself, be said to furnish the legal foundation for a proceeding for contempt of court. It is more appropriately analagous to the preservation of inherent contempt of court powers which was achieved by s. 8 of the Criminal Code and which was discussed by the Court in Vaillancourt v. The Queen, supra. Without that common law substratum, these rules alone cannot be a fulfilment of the exceptional requirement of s. 116(1) that there be “some penalty or punishment or other mode of proceeding… expressly provided by law,…”

This leaves to be considered the inherent power of a court at common law to punish for contempt of its orders. This power has been described by the Court in Vaillancourt v. The Queen, supra, and Re Gerson, Re Nightingale[4]. Various dictionary meanings were advanced in this Court or made reference to in the courts below including a reference from The Century Dictionary to the meaning of “express”: “…in law, commonly used in contradistinction to implied”. Another dictionary following the same line refers to “express” as “that which is not left to implication”; Mozley & Whiteley’s Law Dictionary (9th ed.). Several references are to be found in the American Words and Phrases, vol. 15A, at pp. 550 ff., where generally the cases referred to, while dealing with statutory expressions, conclude that “express” or “expressly” mean something “not merely implied or left to inference”; or are the opposite to “impliedly”. In Bouvier’s Law Dictionary, (8th ed.) at p. 1162, the definition of “express” is “stated or declared, as opposed to implied”. In the Oxford English Dictionary, vol. 3, at p. 447, the verb “express” means “To state or mention explicitly; opposed to imply”. The word “expressly” in the same work is described as being “With distinct enunciation… Avowedly, directly… Distinctly, positively”. It puts, in my opinion, an unbearable strain on the plain language of the subsection to construe “expressly provided” as covering the situation

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where the common law recognizes an inherent right of a court to punish for contempt generally and including the situation where the violation of its orders or procedures amounts to contempt. Such a body of law has developed through the centuries in connection with the conduct of the business of the courts, including procedures for the execution of their orders and the concomitant defiance of their orders. Such inherent power includes the right of the court to determine appropriate punishment at its discretion. It is impossible to construe the general inherent power of a court to conduct its affairs and punish for contempt, including the punishment on citation for contempt as including an “express” common law prescription of a mode of proceeding in connection with this matter. Procedure will vary from court to court, and indeed, from circumstance to circumstance. The wording adopted in the subsection cannot, in my view, be stretched to cover, in the term “expressly provided”, the inherent power at common law in the courts to cite and to punish for contempt. Something “inherent”, almost by its nature, is not “express”. Indeed, it is because the power exists as an intrinsic element of a court that it need not be “expressly provided”.

This takes one to a consideration of the meaning of the expression “by law” used in the statute in conjunction with the expression “expressly provided” as already examined. The term “by law” might, in some circumstances, be construed as a broad incorporation of rules established by statute or by precedent in the common law. The expression “by law” might, in these circumstances, be read as a reference to the criminal law only; and finally might, if limited to statute law, refer to either federal statutes, provincial statutes, or both.

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When the expression “unless some penalty or punishment or other mode of proceeding is expressly provided by law” is read as an entity or unit as though included in parenthesis, the natural meaning to be attributed to the words “by law” contained therein is “by statute law”. For one thing, such law is clearly “expressly provided” beyond argument. Any other law, however it may originate, cannot be so readily described as “expressly provided”. The term “expressly provided by law” follows, and must be taken to relate directly to the expression “other mode of proceeding”. Again it is stretching the terminology beyond the breaking point to consider that the common law expressly provides modes of procedure. It is true courts may adopt rules or procedures, but this is done in the Province of Manitoba, and indeed in all the provinces of our country, by exercising the sub-legislative power of enactment of rules granted by the provincial legislature, or by a court adopting rules in criminal procedure pursuant to the authority granted in s. 438 of the Criminal Code, supra. In all such cases, the rules so adopted are legislative in nature and not a product generated within the common law. Because the Rules of the Court of Queen’s Bench have been excluded, for reasons set out above, from consideration in finding “some penalty or punishment or other mode of proceeding”, it is unnecessary, in my view, in the determination of this appeal to decide whether or not the term “by law” is confined to federal statute or whether it includes both federal and provincial statutes. Huband J.A., in dissent below, took the parenthetical expression to refer to criminal law rather than civil law. With respect, I do not think it is necessary to determine that issue in the disposition of this appeal.

By this line of reasoning I would construe the subsection as being available as the basis for a charge for disobedience of a lawful court order whenever statute law (including regulation) does not expressly provide a punishment or penalty or other mode of proceeding, and not otherwise. Here, for reasons above stated, no other section of the Criminal Code, supra, and no Rules of Court have so expressly provided. The common law is

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precluded as a source of law wherein such penalty, punishment or proceeding can be “expressly” provided. In all these circumstances, therefore, s. 116 may be invoked by the Attorney General for the enforcement of the lawful orders of the Court of Queen’s Bench of Manitoba be those orders criminal or civil in nature. This conclusion is not at all shaken by the possibility that other proceedings might have been launched by reason of s. 8 of the Criminal Code, supra, preserving as it does the inherent power of the court, or whether action might be taken through the inherent powers of the court to enforce its own processes. The availability of other avenues of process in no way operates to remove s. 116 from the arsenal of criminal remedy available for use by the executive branch of government in the enforcement of the laws of the land, unless those avenues fall within the exception, as properly construed.

I share the view, with respect, of Matas J.A. when speaking for the majority of the court below that the distinction between criminal and civil contempt, if such a distinction continues to be required in the law, is of no assistance in determining the issue raised in this appeal.

Both at trial and on appeal below concern was expressed that s. 116 would have no application if read in the manner urged by the respondent because of the omnipresent, inherent power of a court to punish for contempt of its orders or process. Conversely, when read in the way urged by the appellant, the respondent argued there would be no limitation on the availability of s. 116 for the enforcement of compliance with any order of any court. It is true that if read in the manner proposed by the respondent, there is no limitation to what I have referred to as the parenthetical expression inserted in the subsection, with the result that the subsection as a whole would have no application to orders of “courts of justice”. It is an ancient rule of interpretation of all statutes, criminal and civil alike, that where possible a meaning should be assigned to words employed by the

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Legislature which will render the enactment useful or of some meaning in the practical workings of the state. In response to the submission of the respondent, it must be pointed out that there are other provisions in the Criminal Code, supra, which are indeed instances of other punishment or proceedings being “expressly provided” such as s. 472 which provides for punishment of persons refusing to give evidence at a preliminary enquiry. In such a circumstance, s. 116(1) would have no application as it would be excluded by its own parenthetical expression to which, in that circumstance, a meaning would be assigned.

In the result a charge can be laid under s. 116(1) in circumstances such as here exist where an order of the Court of Queen’s Bench, civil in nature, may have been violated whether or not such violation or failure to comply could have given rise to other proceedings in other courts. I adopt, with respect, the statement by Huband J.A. below: “The authority to lay a charge under s. 116(1) is not pre-empted by the general jurisdiction of the superior court to deal with civil contempt.”

I therefore would allow the appeal, set aside the order made in chambers quashing the charge against the respondent, set aside the order of release and discharge from custody, and direct that the matter be returned to the provincial court for a continuation of proceedings on the information.

Appeal allowed.

Solicitor for the appellant: The Attorney General of Manitoba, Winnipeg.