R. v. Clement, (1980) 4 Man.R.(2d) 18 (CA)

• Judge: Freedman, C.J.M., Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 11, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 4 Man.R.(2d) 18 (CA)

R. v. Clement (1980), 4 Man.R.(2d) 18 (CA)

MLB headnote and full text

R. v. Clement

Indexed As: R. v. Clement

Manitoba Court of Appeal

Freedman, C.J.M., Matas and Huband, JJ.A.

June 11, 1980.

Summary:

This case arose out of a divorce proceeding and an order restraining the accused from communicating with his wife and children. The accused allegedly breached the order and was charged under s. 116(1) of the Criminal Code and was taken into custody. 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 was quashed. The Crown appealed to the Manitoba Court of Appeal.

The Manitoba Court of Appeal dismissed the appeal and held that the inherent power of the courts to enforce its orders through contempt proceedings constituted a proceeding excluded in s. 116(1) by the words "mode of proceeding is expressly provided by law" and consequently that a charge against the accused under s. 116(1) was precluded.

Huband, J.A., dissenting, in the Manitoba Court of Appeal would have allowed the appeal and would have restored the charge against the accused.

Criminal Law - Topic 440

Offences against the administration of justice - Disobedience to a court order, scope of the exclusion in s. 116(1) of the Criminal Code - The accused allegedly disobeyed a court order and was charged under s. 116(1) of the Criminal Code - S. 116(1) was not applicable where some "other mode of proceeding is expressly provided by law" - The Manitoba Court of Appeal held that the inherent power of the courts to enforce its orders through contempt proceedings constituted a proceeding "expressly provided by law" and that a charge against the accused under s. 116(1) was precluded.

Contempt - Topic 503

Civil and criminal contempts distinguished - The Manitoba Court of Appeal referred to the distinction between civil and criminal contempt - See paragraphs 15, 42 and 43.

Contempt - Topic 6

General principles - Power of courts - The Manitoba Court of Appeal stated that the power to punish for contempt is inherent in courts of superior original jurisdiction - See paragraph 6.

Words and Phrases

Expressly - The Manitoba Court of Appeal discussed the meaning of the word "expressly" as found in s. 116 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraph 10.

Words and Phrases

Law - The Manitoba Court of Appeal discussed the meaning of the word "law" as found in s. 116 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 11 and 12.

Cases Noticed:

Re Gerson, Re Nightingale, [1946] S.C.R. 538, affd. [1946] S.C.R. 547; [1947] 87 C.C.C. 143; 3 C.R. 111, refd to. [para. 6].

Re Tilco Plastics Ltd. v. Skurjat et al.; Attorney General for Ontario v. Clark et al., [1966] 2 O.R. 547; [1967] 1 C.C.C. 131; 57 D.L.R.(2d) 596; 49 C.R. 99 (affd. [1967] 1 O.R. 609n; [1967] 2 C.C.C. 196n; 61 D.L.R.(2d) 664n; 1 C.R.N.S. 285), refd to. [paras. 8, 26].

R. and Monette (1976), 28 C.C.C.(2d) 409; 10 O.R.(2d) 762; 64 D.L.R.(3d) 470, refd to. [paras. 9, 26].

Poje et al. v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; 2 D.L.R. 785, affd. [1953] 1 D.L.R. 385 (B.C.C.A.), refd to. [paras. 14, 44].

R. v. Clement (1947), 90 C.C.C. 284, refd to. [para. 27].

R. v. Rupert (1975), 16 R.F.L. 325, refd to. [para. 27].

R. v. Andrews, [1978] 2 W.W.R. 153, refd to. [para. 27].

R. v. Shumay, [1979] 5 W.W.R. 382, refd to. [para. 27].

In re Armstrong, [1892] 1 Q.B.D. 327, refd to. [para. 41].

Statutes Noticed:

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

Authors and Works Noticed:

Century Dictionary [para. 10].

Mozley & Whiteley's Law Dictionary (9th Ed.) [para. 10].

Jacob, The Inherent Jurisdiction of the Court, [1970] Current Legal Problems, Vol. 23, p. 23 [para. 10].

Black's Law Dictionary (4th Ed.) [para. 11].

Halsbury's Laws of England (4th Ed.) Vol. 9, p. 3 [para. 15]; p. 52 [para. 43].

Counsel:

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

L.R. Fishman, for the accused/respondent.

This appeal was heard by FREEDMAN, C.J.M., MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal on February 18, 1980.

The judgment of the Manitoba Court of Appeal was delivered on June 11, 1980 and the following opinions were filed:

MATAS, J.A. - see paragraphs 1 to 19.

HUBAND, J.A., dissenting - see paragraphs 20 to 47.

FREEDMAN, C.J.M., concurred with MATAS, J.A.