McKeown v. The Queen

McKeown v. The Queen
Collection
Supreme Court Judgments
Date
1971-02-01
Report
[1971] SCR 446
Judges
Fauteux, Joseph Honoré Gérald; Martland, Ronald; Judson, Wilfred; Spence, Wishart Flett; Laskin, Bora
On appeal from
Ontario
Subjects
Courts
Decision Content
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. 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 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 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 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[1], 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- 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- 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. 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[2], 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 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 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 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[3], 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 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 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[4], 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 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 I put it to one side: see Hind v. The Queen[5], 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[6]. 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 majority of the Court in Poje thought that it did because they referred to In Re Storgoff[7]. 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.[8], 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 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. 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 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 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 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 a