Paul v. R., [1980] 2 SCR 169

Supreme Court of Canada

Paul v. R., [1980] 2 S.C.R. 169

Date: 1980-06-03

Frank Paul (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: May 13; 1980: June 3.

Present: Laskin C.J. and Dickson, Beetz, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Contempt of court—Imputation of corruption against the Crown Attorney—“Show cause” hearing—Performance of public duties as officer of the court—Apprehension of bias—Failure to invite final submissions—Criminal Code, R.S.C. 1970, c. C-34, s. 618(1).

The appellant was convicted of contempt in the face of the court in impugning the integrity of the Crown Attorney by calling him corrupt and repeating the imputation. He had become involved in a dispute with neighbours about a right of way affecting his summer property. Civil litigation ensued and, as well, criminal proceedings, involving charges and counter-charges. The Crown Attorney of the area prosecuted in the ordinary course but the appellant was displeased with an alleged failure to pursue the counter-charges and felt that the Crown Attorney was “in league” with his neighbours. At some proceedings on August 25, 1977, the appellant twice referred to the Crown Attorney as corrupt. On September 1, 1977, the judge asked the appellant to apologize to the court and to the Crown Attorney on pain of being cited for contempt. The Crown Attorney had complained of the allegation and although the appellant was given a further opportunity to apologize he did not do so but was prepared to appear at a “show-cause” hearing. The hearing on the contempt charge took place on November 17, 1977, the appellant was convicted and a fine of $250 was imposed upon him. The Court of Appeal, by a majority, dismissed the appeal, the dissent being on the ground that the imputation was personal and did not relate to the performance by the Crown Attorney of his public duties as an officer of the court. Leave to appeal here was given to the appellant who is confined under s. 618(1) of the Criminal Code to questions of law.

Held: The appeal should be dismissed.

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Whatever substance there may be to the appellant’s contention as to the out-of-court behaviour of the Crown Attorney towards him, this cannot excuse his in-court imputation against the integrity of the Crown Attorney. There is no doubt that there may be contempt of court if allegations tending to bring the administration of justice into disrepute are made in court against officers of the court. The trial judge was entitled, on the complaint of the Crown Attorney, to take notice of the imputation of corruption and to fix a “show cause” hearing rather than to ask the Crown Attorney to take his complaint to the Attorney General of the Province. The judge was right in finding that there was no factual basis for the imputation of corruption. With respect to two other issues raised: there was no reasonable apprehension of bias to disqualify the judge from proceeding with the contempt citation; and the failure to invite final submissions at the end of the “show cause” hearing did not constitute an error of law for the matters in issue had been thoroughly threshed out by argument which was threaded through the evidence.

McKeown v. The Queen, [1971] S.C.R. 446; In Re Johnson (1887), 20 Q.B.D. 68; Parashuram Detaram Shamdasani v. King-Emperor, [1945] A.C. 264, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing an appeal from a conviction of contempt in the face of the Court. Appeal dismissed.

The appellant, appearing on his own behalf.

Casey Hill, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The appellant was convicted by His Honour Judge Geiger of contempt in the face of the court in impugning the integrity of the Crown Attorney by calling him corrupt and repeating the imputation. An appeal from the conviction to the Ontario Court of Appeal (as now permitted by s. 9 of the Criminal Code, as enacted by 1972 (Can.), c. 13, s. 4) was dismissed, with Weatherston J.A. dissenting on the ground that the imputation was personal and did not relate to the performance by the Crown Attorney of his

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public duties as an officer of the court. All three Judges of the Ontario Court of Appeal were agreed, however, that Judge Geiger had the power, in the circumstances, to proceed summarily against the appellant, and was not obliged to have the Crown Attorney make his complaint of contempt of court to the Attorney General with a view to proceeding against the appellant by indictment.

The punishment imposed upon the appellant was a fine of $250 and, in default of payment within sixty days, a term of imprisonment of twenty-one days. Although an appeal was taken in the alternative against the punishment imposed, the Ontario Court of Appeal did not interfere with it and, of course, in this Court the degree of the punishment is not open to question. Leave to appeal here was given to the appellant who is confined under s. 618(1) of the Criminal Code (on the view that his conviction was of an indictable offence: see McKeown v. The Queen[2]) to questions of law.

If any question of law was raised by the appellant in his appeal to this Court, it could only be to challenge the correctness in law of the summary course taken by Judge Geiger, to associate this objection with a contention of reasonable apprehension of bias in Judge Geiger and to contend that the appellant was not given an opportunity to submit argument at the conclusion of the evidence on the “show cause” hearing into the alleged contempt. In my view, none of these challenges to the conviction are maintainable. Some background is necessary to put these issues in perspective.

The appellant had become involved in a dispute with neighbours about a right of way affecting his summer property. Civil litigation ensued and, as well, criminal proceedings, involving charges and counter-charges. The Crown Attorney of the area prosecuted in the ordinary course but the appellant was displeased with an alleged failure to pursue the counter‑charges. On August 25, 1977, the

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appellant appeared before Judge Geiger on another charge and when the Crown Attorney suggested a trial date of September 23, 1977, the appellant objected to Judge Geiger and called the Crown Attorney corrupt. The appellant felt that the Crown Attorney was “in league” with his neighbours. He also felt that he was being obliged, unnecessarily, to make weekly trips to Parry Sound from Toronto simply to appear for adjournments. However, it was contended against him that he could not be pinned down to a trial date. (I should note that he was appearing in person without counsel and appeared in this Court in person to argue successfully his application for leave and, as it turns out, unsuccessfully the appeal proper).

At the proceedings on August 25, 1977, the appellant twice referred to the Crown Attorney as corrupt, but the latter was guilty of exacerbating a difficult situation by saying that the appellant needed a mental examination. Judge Geiger told the appellant that he (Judge Geiger) was arranging to have another judge come on September 23, 1977, to hear the charge against the appellant who then said “If a Judge is coming who is directed by this Judge I will not accept”. This understandably annoyed Judge Geiger and the matter was put over to September 1, 1977. It came back the following week when further rancorous exchanges took place, and Judge Geiger asked the appellant to apologize to the court and to the Crown Attorney for his allegation of corruption on pain of being cited for contempt. The Crown Attorney had complained of the allegation, and although the appellant was given a further opportunity to apologize he did not do so but was prepared to appear at a “show cause” hearing. When the matter came up again on September 15, 1977, another counsel from the provincial Ministry of Justice appeared to pursue the contempt proceedings. The appellant cast aspersions on the impartiality of Judge Geiger and ultimately asked for more time to enable him to bring in a certain witness. The matter was put

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over and came before Juge Geiger again on November 17, 1977.

A hearing on the contempt charge then took place. The appellant had subpoenaed certain witnesses and examined them at length, but did not himself give evidence in a formal way. Judge Geiger wished, however, to determine whether the appellant understood the import of “corrupt” since his facility with the English language might be deficient. The appellant answered as follows:

MR. PAUL: If I might submit my readings of it. Corrupt means rotten, depraved. It means inefficient, not fully capable. It means worthless, of no value or merit. It also means wicked, or dissolute. I go mainly on the word “rotten”, which also means inefficient, worthless. “Inefficient” means not fully capable. “Worthless” means, of no value or merit. Now having stated this, there is only one Crown Attorney in this District, and having had problems stemming out of a civil dispute which was no more value than a hundred dollars.

The appellant claimed that the Crown Attorney had intimidated him in a parking lot, had laughed at him and thumbed his nose at him and he referred to these incidents at the “show cause” hearing, saying further:

…And if there is one party in as a Crown Attorney, who uses such incidents, for fun or, I don’t know, makes fun of it, I find it outrageous and for sure, not proper… rotten or whatever. I think my words… the words I used therefore, are very mild, and I have no pity and I have no… against Mr. Gerhart otherwise. I wish somebody would take, take care of this problem, to be straightened out.

Whatever substance there may be to the appellant’s contention as to the out-of-court behaviour of the Crown Attorney towards him, this cannot excuse his in-court imputation against the integrity of the Crown Attorney. I cannot agree with Weatherston J.A. that the imputation did not relate to the Crown Attorney in his public or official capacity. The record shows the contrary. There is no doubt that there may be contempt of court if allegations tending to bring the administration of justice into disrepute are made in court

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against officers of the court: see In Re Johnson[3], at p. 75; Parashuram Detaram Shamdasani v. King-Emperor[4], at p. 269. Judge Geiger was entitled, on the complaint of the Crown Attorney, to take notice of the imputation of corruption, twice repeated and joined with other unflattering references to the Crown Attorney. He might have, in the light of the record as a whole touching the appellant’s involvement with the Provincial Court at Parry Sound, ignored the imputation or have told the Crown Attorney to take his complaint to the Attorney General of the Province but I can find no error of law in the way in which he dealt with the matter.

In the first place, he did not proceed against the appellant on the spot and without giving him an opportunity, indeed several opportunities, to apologize. Moreover, he fixed a “show cause” hearing and then allowed the appellant further time to prepare himself for it. At any time prior to the “show cause” hearing and even, it seems to me, during the hearing, the appellant could have brought the proceedings against him to a peaceful end by offering an apology. There was no factual basis for the imputation of corruption and Judge Geiger was right in so finding. After the “show cause” hearing on November 17, 1977, judgment was reserved until February 2, 1978, at which time Judge Geiger delivered lengthy and considered reasons. In finding the appellant guilty of contempt of court, he said this:

Over the course of the last year Mr. Paul has, on a number of occasions, made derrogatory (sic) and insulting comments about Mr. Gerhart, culminating in the charge that Mr. Gerhart is corrupt and not loyal to his oath.

Mr. Paul alleges that Mr. Gerhart laughs and stares at him. I have indicated that I have not noticed Mr. Gerhart laughing. What I have noticed is a smile and I see nothing offensive in that. I have not noticed Mr. Gerhart staring at any time. I believe that Mr. Paul is self-conscious and overly sensitive.

Mr. Paul refers to an incident in the parking lot, and I believe that this incident must be considered in the light of my prior observations: there is no doubt that

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Mr. Gerhart has been bothered by Mr. Paul’s accusations, insults and truculence. One must also remember that Mr. Gerhart is still prosecuting a number of charges against Mr. Paul.

I do not find that Mr. Paul has been intimidated in any way by Mr. Gerhart, but rather that Mr. Gerhart has been intimidated by Mr. Paul.

I also dismiss as frivolous and without merit Mr. Paul’s accusation that Mr. Gerhart has not been loyal to his oath. I am satisfied beyond any reasonable doubt that Mr. Gerhart, as Crown Attorney, has faithfully executed his duties, powers and trusts without fear or affection to any party.

Accordingly I am satisfied that there is no evidence to support Mr. Paul’s allegation that the Crown Attorney is corrupt.

There are two other matters that I wish to mention. I cannot find that there was any reasonable apprehension of bias to disqualify Judge Geiger from proceeding with the contempt citation. It is true that he was advised by the Chief Judge of the Provincial Court not to hear any charges against the appellant but rather to have another judge preside at any trial of the appellant. I do not think that this can be taken to extend to the contempt proceeding or that, in any event, there was an error of law on Judge Geiger’s part in dealing with the alleged contempt.

Although the appellant had moved on February 10, 1977, to prohibit Judge Geiger and the Crown Attorney from hearing and prosecuting any charges against him and the motion was not disposed of (it was dismissed) until after the contempt hearing but before judgment in the matter, this could not ipso facto establish a reasonable apprehension of bias. The appellant could not, by making unfounded allegations of bias, determine by whom he could be tried. Moreover, Judge Geiger was long involved, as the only Provincial Court Judge in Parry Sound, with the proceedings against the appellant and was, hence, familiar with the context in which and the force with which the in-court imputations were made against the Crown Attorney. Whether or not Judge Geiger would have been better advised to have left the Crown Attorney to pursue the allegation of contempt before another judge, I repeat that there was no

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error of law in regarding the matter as one that should be dealt with expeditiously and hence by himself.

Secondly, I find no fatal defect of natural justice or of any want of fairness in the way in which the “show cause” hearing was conducted. The appellant was given full latitude to present evidence and spent a considerable time in cross-examining the Crown Attorney who had testified in chief in support of the citation of contempt. The cross-examination recanvassed the relations between the appellant and the Crown Attorney and the “show cause” hearing then ended. Judge Geiger did not expressly invite either Crown counsel, who appeared in support of the citation of contempt, or the appellant to make final submissions, but the matters in issue had been thoroughly threshed out by argument which was threaded through the evidence. In these circumstances, I do not think that the failure to invite final submissions constituted an error of law. There was no suggestion that the appellant had requested an opportunity to make final submissions and had been refused.

I would dismiss the appeal.

Appeal dissdmissed.

Solicitor for the respondent: The Attorney General of Ontario, Toronto.