R. v. Vermette

McIntyre J.‑‑This appeal involves consideration of the power of the courts in Canada to deal with contempt of court, in view of the provisions of s. 8 of the Criminal Code . That section, after excluding convictions at common law and under certain United Kingdom and pre‑Confederation enactments, now provides: "but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before the 1st day of April 1955, to impose punishment for contempt of court".

The facts may be briefly stated. The respondent was charged with theft from a purse belonging to one Carol McRae. Upon the matter coming on for trial, the respondent pleaded guilty. The complain­ant was present in court on this occasion to be called as a witness. It was, of course, unnecessary to call her after the plea of "guilty", but she was prepared to give evidence and had given a statement to the police involving the respondent in the offence and it could have been decisive. She left the court, followed by the respondent. They entered the public elevator and he then threatened the complainant, saying: "she would remember this day when she got her pretty face slashed". The complainant reported the matter and the following charge was laid against the accused:

on or about the 4th day of February, A.D., 1982 at Calgary in the said Province, did commit criminal contempt of Court not in the face of the Court, to wit: BY THREATENING Carol MCRAE a complainant in a criminal matter.

The Crown elected to proceed by way of indictment under Part XVI of the Code. On February 26, 1982, the respondent elected trial by judge without a jury. On March 30, 1982, the respondent re‑elected trial by magistrate and thereupon pleaded guilty. He was sentenced to two months' imprisonment. With new counsel, the respondent appealed his conviction to the Court of Appeal. His conviction was set aside and an acquittal entered.

In the Court of Appeal, now reported (1983), 6 C.C.C. (3d) 97, Belzil J.A., speaking for the Court (Moir, Belzil JJ.A. and Forsyth J. (ad hoc)) held that the threat made in the circumstances of this case constituted a contempt ex facie. He also held that an indictment did not lie for the common law offence of criminal contempt. It was his view that the saving provision of s. 8 of the Code preserves only the power of the courts to punish contempt by summary procedure and not by indictment. He said, at p. 102:

Section 8 does not purport to preserve indictment for the common law offence of criminal contempt. By preserving "the power, jurisdiction or authority . . . to impose punishment for contempt of court", this section was intended to preserve the power of the courts to punish contempt by the summary procedure. It is only within the framework of this procedural power that the offence of criminal contempt in its broadest common law definition is preserved.

It was his opinion that procedure by indictment had been effectively replaced by sections of the Code which deal with specific aspects of criminal contempt. In reaching this conclusion, he said, at p. 104:

...I am of the view that s. 127(2) [of the Code], which makes it an offence to wilfully attempt to obstruct, prevent [sic] or defeat the course of justice, is sufficiently broad in its scope to include all acts of contempt at common law not already covered in other related Criminal Code offences. If I am wrong in this, and a gap does exist, the question should perhaps be re‑examined by Parliament.

As stated above, the conviction was quashed.

The Crown appeals to this Court by leave and raises only one point set out in the factum in these words:

Whether the Court of Appeal of Alberta erred in law in holding that procedure by Indictment for contempt of court is not available in Canada.

The respondent was not represented before this Court, although duly notified of the proceedings. We are indebted to counsel for the Crown who fairly put the matter before the Court without causing prejudice to the absent respondent.

To summarize the position taken by the Crown, it is sufficient to say it was asserted that the full contempt powers, not merely powers by way of summary proceedings, had been preserved in s. 8 of the Code; that the procedure by indictment remained available and that the existence of substantive offences in the Code, covering matters which were triable as well in contempt proceedings, did not oust the jurisdiction of the courts to proceed by indictment for contempt.

The power to deal with contempt as part of the inherent and essential jurisdiction of the courts has existed, it is said, as long as the courts themselves (see Fox, The History of Contempt of Court, 1972, p. 1). This power was necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings. Contempt powers existed for both superior courts and courts of inferior jurisdiction, but the jurisdiction of the inferior courts was limited to contempt in the face, or in the presence, of the court. The superior courts, in addition to the power to convict and punish for contempt in the face of the court, had exclusive jurisdiction concerning the trial and punishment of contempts ex facie, that is, contempts committed not in the face of the court. The law on this subject with a careful review of the relevant authorities is to be found in the judgment of Beetz J., speaking for this Court (it was unanimous on this point), in Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618, who reached the following conclusion, at p. 638:

Accordingly, I think it is fair to conclude that the Anglo‑Canadian authorities on the power to punish for contempt committed ex facie curiae have been firmly established for more than two hundred years. According to these authorities, this power is enjoyed exclusively by the superior courts.

He went on to say:

Such a rule is moreover justified in principle by the following considerations. The power to punish for contempt committed ex facie is liable to result in inquiries which may well involve a lower court in areas which are practically impossible to define in terms of jurisdiction and completely foreign to its own area of jurisdiction, which by definition is limited. Such an obstacle does not arise in the case of a court like the Superior Court, which is a court of original general jurisdiction (art. 31 C.C.P.) with a priori jurisdiction, or courts sitting in appeal from decisions of the Superior Court, which may in general render the decisions which the latter would have rendered. Moreover, the power to punish a contempt committed ex facie is necessarily bound up with the superintending and controlling power which only a superior court may exercise over inferior courts. This controlling power could become illusory if, in the case of a contempt committed ex facie, an inferior court had the right to go beyond its own particular field. There would also be the danger of conflict between the superior and inferior courts, of the kind that formerly existed in England between the common law and equity courts. Finally, the inferior courts are not without any means of ensuring that their lawful orders are observed: as Dorion C.J. notes in Denis, the superior courts may come to their aid; see also R. v. Davies (supra) and Re Regina and Monette.

Historically, the superior courts could deal with contempt ex facie by indictment: see R. v. Revel (1719), l Str. 420, 93 E.R. 609; R. v. Fisher (1811), 2 Camp. 563, 170 E.R. 1253; Borrie and Lowe's Law of Contempt (2nd ed. 1983). Later, it became the practice to deal with contempt ex facie by summary procedures as well: see R. v. Almon (1765), Wilm. 243, 97 E.R. 94. Today, summary procedure has become more common and procedure by indictment has largely fallen into disuse (see R. v. Bengert (1980), 18 C.R. (3d) 75 (B.C.C.A.), per Nemetz C.J.B.C., at p. 84). In fact, it has been said that the last indictment for contempt ex facie in England was in 1902.

It has been suggested by various Canadian authorities that the proviso in s. 8 preserved only the summary procedure for the punishment of contempt ex facie. In the case at bar, Belzil J.A. expressed that view. He found support in R. c. Ouellet, [1976] C.S. 503, 28 C.C.C. (2d) 338, where Hugessen A.C.J. (as he then was) said, at p. 507 and pp. 345‑46:

Assuming that contempt, as a common law crime, could be proceeded against by indictment in England, it remains to determine the effect of section 8 of the Criminal Code on any such proceedings launched in Canada. The only reported case that I know of is R. c. Larue‑Langlois (1971) 14 C.R. 68, a judgment of the Court of Sessions, which is not binding on me. It is not necessary that I decide this point for the purpose of the present decision but I have serious doubts as to whether the reservation in section 8 of the right of a court "to impose punishment for contempt of court" is adequate to permit the preferring of an indictment for a common law crime contrary to the express prohibition of the earlier part of the same section.

These words were referred to by Martin J.A. in R. v. Cohn (1984), 4 O.A.C. 293, who said at p. 309, after reproducing the quotation above:

I share that doubt, particularly in view of the fact that procedure by way of indictment had fallen into disuse long before the enactment of s. 8.

With the greatest deference to the contrary views expressed on this question it is my opinion that, though now rarely employed, procedure by indictment for the punishment of contempt ex facie, not having been specifically abolished in Canada, is preserved by s. 8 of the Code and remains available. This view is supported by Canadian authority. In McKeown v. The Queen, [1971] S.C.R. 446, Laskin J. (as he then was) and Spence J., while dissenting from the majority on the issue of whether the contempt involved in that case occurred in the face of the Court or ex facie, dealt with the point, although the majority did not find it necessary to do so. At page 463, Laskin J. said:

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.

And see as well, Hébert v. Procureur général de la Province de Québec, [1966] B.R. 197, [1967] 2 C.C.C. 111 (Que. C.A.), and Bengert, supra. The important point to remember for this case, however, is that at common law ‑‑ and this is what is specifically preserved by s. 8 of the Code ‑‑ the jurisdiction to deal with contempt ex facie by indictment or summary procedure was always vested exclusively in the superior courts.

In the case at bar, I have no difficulty in agreeing with Belzil J.A. in the Court of Appeal, that the conduct of the respondent in threatening the complainant amounted to a contempt ex facie the court. The Crown chose to proceed by indictment. The respondent, however, exercised his right of election under s. 484(1) of the Code, which provides:

484. (1) Where an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 427, and the offence is not one over which a magistrate has absolute jurisdiction under section 483, a magistrate may try the accused if the accused elects to be tried by a magistrate.

He elected trial by magistrate. The result then was that the proceedings were taken and completed in the provincial court, a court of inferior jurisdiction without jurisdiction to deal with contempt ex facie.

The Crown submits that, under s. 8 of the Code, contempt is an indictable offence within the meaning of s. 484(1) and, accordingly, an accused is entitled to elect trial by magistrate, as set out in the section. In my view, however, this argument rests on an erroneous characterization of the contempt power, as preserved by s. 8. That section does not create an indictable offence for the purposes of the Code, but rather preserves the courts' inherent jurisdiction or power to punish for contempt. This distinction is illustrated in the decision of this Court in Vaillancourt v. The Queen, [1981] l S.C.R. 69, where a fifteen‑year old youth was convicted of contempt in the face of the court by a superior court judge for refusing to testify at a trial. On appeal, it was argued that the judge lacked jurisdiction to deal with the matter because of the exclusive jurisdiction of the youth court. Chouinard J., speaking for the Court, held that, had the appellant been charged under s. 116(1) or s. 127(2) of the Code, the youth court would have had exclusive jurisdiction. However, he referred to the difference between the laying of criminal charges under the Code and the exercise by the Court of its inherent jurisdiction to protect its processes through contempt proceedings, pursuant to s. 8 of the Code. To this effect, he quoted with approval the words of the trial judge, at p. 72:

[TRANSLATION] The first point to be noted from reading this section is that the legislator makes a very clear distinction between an offence contained in the Criminal Code or in an Act or ordinance in force, and the power, jurisdiction or authority of a court to impose a penalty for contempt of court. He has accordingly created a very clear distinction between offences and crimes on the one hand, and the power to impose a penalty for contempt of court on the other.

While Vaillancourt involved contempt in the face of the court, and is thus different from the case at bar, it nonetheless provides an accurate statement as to the true nature of the contempt power preserved under s. 8 of the Code. It illustrates the source of the problem which arose in the case at bar. The Crown, in proceeding as it did, was treating criminal contempt as an indictable offence under the Code. The procedure in respect of indictable offences enables an election for trial before the provincial court. Criminal contempt, however, as preserved by s. 8 of the Code, is an offence derived from the law of England and one which, according to the law of England which must be applied here, has always been triable only in the superior courts. While it is triable by indictment, it is not triable in Canada as an indictable offence under Part XVI of the Code and the accused therefore has no right to an election. It may be tried only in the superior court and, when an indictment for criminal contempt is employed in Canada, it would seem that it would have to be by direct indictment to the superior court.

The result then is that an accused, in this case the respondent, cannot by way of election under s. 484(1) of the Code vest the provincial court with jurisdiction which it does not possess. This is supported by the plain words of the saving provision of the Code. It preserves for the court its contempt powers which were derived from the common law. Jurisdiction to punish for contempt ex facie has always been vested exclusively in the superior courts and it remains so today. It therefore follows that the conviction of the respondent cannot stand, the magistrate having no jurisdiction.

As a final note, it is my view that merely because the Crown may also have proceeded under s. 127(2) of the Code (obstruction of justice), the court was not precluded from relying on the contempt power under s. 8. Support for this view is to be found in the decision of this Court In re Gerson, [1946] S.C.R. 538, where Rinfret C.J. stated, at p. 544:

The power to punish for contempt is inherent in courts of superior original jurisdiction, quite independent of enactments in codes or statutes relating to their disciplinary powers.

For these reasons, I would dismiss the Crown's appeal.