R. v. Bubley, (1976) 1 A.R. 37 (CA)

• Judge: Clement, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 17, 1976
• Citations: (1976), 1 A.R. 37 (CA)

R. v. Bubley (1976), 1 A.R. 37 (CA)

MLB headnote and full text

R. v. Bubley

Indexed As: R. v. Bubley

Alberta Supreme Court

Appellate Division

Clement, Moir and Haddad, JJ.A.

August 17, 1976.

Summary:

This case arose out of a charge of trafficking in heroin. At a preliminary hearing an essential Crown witness refused to testify and did not offer any excuse for the refusal. The presiding judge adjourned the hearing for eight days and remanded the witness for six days to show cause why she should not be held in contempt of court. The witness remained obdurate. The judge held the witness in contempt of court and imposed a sentence of imprisonment of one year.

On appeal to the Alberta Court of Appeal the appeal was allowed and the judgment of contempt and the sentence were quashed. The Alberta Court of Appeal held that the judge's jurisdiction respecting contempt at a preliminary hearing was statutory and was limited by s. 472 of the Criminal Code. S. 472 limited the judge to a committal not exceeding eight clear days and provided for successive committals not exceeding eight clear days.

The Alberta Court of Appeal stated the judge's power to preserve power in a court pursuant to s. 440 of the Criminal Code does not extend to or embrace a refusal to testify - see paragraph 9.

Contempt - Topic 5564

Jurisdiction to punish for contempt - Criminal courts - Provincial court judge at a preliminary hearing conducted pursuant to the Criminal Code - A witness refused to testify at a preliminary hearing - The presiding provincial court judge held that the witness was in contempt of court and the judge committed the witness to jail for one year - The Alberta Court of Appeal quashed the judgment of contempt and the sentence imposed because the judge's jurisdiction respecting contempt at a preliminary hearing was statutory and was limited by s. 472 of the Criminal Code - See paragraph 10 - The Alberta Court of Appeal stated that judge's power to preserve order in a court under s. 440 of the Criminal Code did not extend to or embrace a refusal to testify - See paragraph 9.

Words and Phrases

Order in a court - The Alberta Court of Appeal discussed the meaning of the phrase "order in a court" as found in s. 440 of the Criminal Code.

Words and Phrases

Preserve order in a court - The Alberta Court of Appeal discussed the meaning of the phrase "preserve order in a court" as found in s. 440 of the Criminal Code.

Cases Noticed:

McDermott v. Judges of British Guiana, [1898] L.R. 2 P.C. 341, folld. [para. 3].

Re Harry Rose, [1964] 1 C.C.C. 25, folld. [para. 3].

Re Gerson, [1946] 86 C.C.C. 143, folld. [para. 3].

In re Hugh Morrison, [1907] 3 E.L.R. 154, folld. [para. 4].

In re Hartel Sims, [1907] 3 E.L.R. 157, folld. [para. 4].

R. v. Hume, ex parte Hawkins, [1966] 3 C.C.C. 43, refd to. [para. 5].

R. v. Taylor, ex parte Crepeau, [1965] 4 C.C.C. 81, refd to. [para. 6].

R. v. Rival, [1971] 13 C.R.N.S. 100, refd to. [para. 7].

Re Regina and Menard, [1972] 9 C.C.C. (2d) 15, refd to. [para. 7].

R. v. Lamer, [1973] 17 C.C.C.(2d) 411, refd to. [para. 7].

Young v. Saylor, [1893] 23 O.R. 513, affd. 20 O.A.R. 645, folld. [para. 8].

Garnett v. Ferrand (1827), 108 E.R. 576, folld. [para. 8].

In Re Helik, [1939] 2 W.W.R. 123, folld. [para. 9].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 440 [para. 5]; sect. 472 [para. 2].

Counsel:

H. Rubin, for the appellant;

S.G. Fowler, for the Crown.

The judgment of the Alberta Court of Appeal was delivered by CLEMENT, J.A., on August 17, 1976.