R. v. Clement, (1981) 38 N.R. 302 (SCC)

• Judge: Martland, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 06, 1981
• Jurisdiction: Canada (Federal)
• Citations: (1981), 38 N.R. 302 (SCC);61 CCC (2d) 449;[1981] SCJ No 93 (QL);38 NR 302;10 Man R (2d) 92;127 DLR (3d) 419;1981 CanLII 212 (SCC);[1981] 2 SCR 468;[1981] 6 WWR 735;23 CR (3d) 193;6 WCB 413;23 RFL (2d) 225

R. v. Clement (1981), 38 N.R. 302 (SCC)

MLB headnote and full text

R. v. Clement

Indexed As: R. v. Clement

Supreme Court of Canada

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

October 6, 1981.

Summary:

The accused was charged under s. 116(1) of the Criminal Code for allegedly breaching an order made in a divorce proceeding that the accused not communicate with his wife and children. In habeas corpus proceedings in the Manitoba Court of Queen's Bench the charge against the accused under s. 116(1) and the warrant of committal of the accused were quashed. The Crown appealed. The Manitoba Court of Appeal in a judgment reported 4 Man.R.(2d) 18 dismissed the appeal. The Crown appealed.

The Supreme Court of Canada allowed the appeal and remitted the matter for determination, holding that s. 116(1) was applicable in the circumstances.

Criminal Law - Topic 440

Offences against the administration of justice - Disobedience of court order - Scope of exclusion in Criminal Code, s. 116(1), rendering the section inapplicable where some "other mode of proceeding is expressly provided by law" - The accused was charged with disobeying a divorce court order under s. 116(1) - The Supreme Court of Canada held that s. 116(1) was applicable, because neither s. 8 of the Criminal Code, rules 483, 485, 492 of the Manitoba Queen's Bench Rules nor the inherent contempt power of the court provided any "other mode of proceeding".

Words and Phrases

By law - The Supreme Court of Canada discussed the meaning of the words "by law" in the clause "unless some penalty or punishment or other mode of proceeding is expressly provided by law" in s. 116(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 10 to 12.

Words and Phrases

Expressly provided - The Supreme Court of Canada discussed the meaning of the words "expressly provided" in the clause "unless some penalty or punishment or other mode of proceeding is expressly provided by law" in s. 116 (1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 6 to 12.

Words and Phrases

Lawful order - The Supreme Court of Canada discussed the meaning of the words "lawful order" in the clause "everyone who, without lawful excuse, disobeys a lawful order made by a court" in s. 116(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34.

Cases Noticed:

R. v. Boggs (1981), 34 N.R. 520 (S.C.C.), refd to. [para. 5].

R. v. Vaillancourt (1981), 35 N.R. 597, consd. [para. 7].

Re Gerson, Re Nightingale, [1946] S.C.R. 538, consd. [para. 9].

Statutes Noticed:

British North America Act, 1867, sect. 91(27) [para. 5].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 8 [para. 7]; sect. 116(1) [para. 1]; sect. 259 [para. 5].

Queen's Bench Rules (Man.), rule 483, rule 485, rule 492 [para. 8].

Authors and Works Noticed:

Bouvier's Law Dictionary (8th Ed.), p. 1162 [para. 9].

Century Dictionary [para. 9].

Mozley and Whiteley's Law Dictionary (9th Ed.) [para. 9].

Oxford English Dictionary [para. 9].

Words and Phrases, vol. 15A, p. 550 ff. [para. 9].

Counsel:

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

Len Fishman, for the respondent.

This case was heard on June 22, 1981, at Ottawa, Ontario, before MARTLAND, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On October 6, 1981, ESTEY, J., delivered the following judgment for the Supreme Court of Canada: