R. v. Doz, (1985) 59 A.R. 185 (CA)

• Judge: McDermid, Haddad and Belzil, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 13, 1985
• Citations: (1985), 59 A.R. 185 (CA)

R. v. Doz (1985), 59 A.R. 185 (CA)

MLB headnote and full text

R. v. Doz

(No. 16458)

Indexed As: R. v. Doz

Alberta Court of Appeal

McDermid, Haddad and Belzil, JJ.A.

March 13, 1985.

Summary:

A solicitor verbally abused a Provincial Court judge in open court following the conviction of his client. The judge cited the solicitor for contempt and set a date for the solicitor to show cause why he should not be found in contempt. The solicitor was convicted of contempt and fined $500 after a show cause was held before another Provincial Court judge. The solicitor appealed, submitting, inter alia, that the Provincial Court judge lacked jurisdiction to hold the show cause and that his rights under ss. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms were denied.

The Alberta Court of Appeal, Belzil, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to independent and impartial tribunal - A solicitor was cited for contempt by a trial judge because of a barrage of insulting statements made to the judge - The Alberta Court of Appeal stated that in the absence of urgency the solicitor should be required to show cause before another judge why he should not be convicted of contempt, to avoid any apprehension of bias - See paragraph 41.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - Canadian Charter of Rights and Freedoms, s. 11(f) - The Alberta Court of Appeal held that on a charge of contempt there was no right to a jury trial, because contempt was not an offence punishable by five years or more imprisonment and, alternatively, the denial of a jury trial for contempt was a reasonable limit prescribed by law under s. 1 of the Charter - See paragraphs 47 to 58.

Civil Rights - Topic 4953

Presumption of innocence - Evidence - Contempt proceedings - The Alberta Court of Appeal held that requiring an alleged contemnor to show cause why he should not be convicted of contempt did not deny the contemnor's right to be presumed innocent under s. 11(d) of the Canadian Charter of Rights and Freedoms - The court stated that the show cause did not shift the burden of proof, it merely placed an evidentiary burden on the alleged contemnor where a prima facie case of contempt was established - See paragraphs 59 to 62.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law, s. 1 - The Alberta Court of Appeal held that denying an alleged contemnor a jury trial did not violate the right to a jury trial under s. 11(f) of the Charter, because the denial was a reasonable limit prescribed by law under s. 1 of the Charter - See paragraphs 47 to 58.

Civil Rights - Topic 8551

Canadian Charter of Rights - Interpretation - Demonstrably justified in a free and democratic society, s. 1 - The Alberta Court of Appeal stated that when looking at whether certain legislative provisions were demonstrably justified in a free and democratic society, the courts were free to examine the practice of free and democratic societies other than Canada - See paragraph 56.

Contempt - Topic 515

What constitutes - Contempt in the face of the court - A solicitor used insulting and grossly offensive language to repeatedly accuse a trial judge in open court of conducting an unfair trial, hiding authorities from him and setting a trap - The statements accused the judge of deceit and dishonesty - The Alberta Court of Appeal held that the evidence supporting a conviction for contempt was "overwhelming" - See paragraphs 78 to 82.

Contempt - Topic 3301

Punishment - General - The Alberta Court of Appeal reviewed the history of punishments for contempt and concluded that the current practice was to impose a sentence of less than five years' imprisonment - See paragraphs 47 to 58.

Contempt - Topic 3304

Punishment - Purging of contempt - Apology - The Alberta Court of Appeal stated that there was no general rule that an apology purged a contempt - See paragraphs 74 to 77.

Contempt - Topic 3329

Punishment - Sentence - Criminal contempt - A solicitor used insulting and grossly offensive language to repeatedly accuse a trial judge in open court of conducting an unfair trial, hiding authorities from him and setting a trap - The statements accused the trial judge of deceit and dishonesty - The Alberta Court of Appeal stated that a fine of $500 was appropriate - See paragraph 53.

Contempt - Topic 5026

Practice - Notice - For contempt in face of the court - The Alberta Court of Appeal held that the purpose of notice was to reasonably inform an alleged contemnor of the offence with which he was charged and the date, time and place set for a hearing of the charge - The court held that notice was adequate where the notice and the actual knowledge of the alleged contemnor made him aware of the conduct upon which the alleged contempt was founded - See paragraphs 63 to 70.

Contempt - Topic 5083

Practice - Burden of proof - The Alberta Court of Appeal held that the burden was on the Crown to prove contempt, but that contempt in the face of the court raised a prima facie case of guilt, putting an evidentiary burden on the alleged contemnor to rebut the prima facie case - See paragraphs 59 to 62.

Contempt - Topic 5105

Practice - Hearing - Who should act as judge - The Alberta Court of Appeal held that where an alleged contemnor verbally attacked the trial judge, in the absence of urgency, the show cause hearing should be conducted by another judge to remove any apprehension of bias - See paragraphs 12 to 44.

Contempt - Topic 5541

Jurisdiction to punish for contempt - Criminal courts - General - The Alberta Court of Appeal discussed the derivation of jurisdiction to punish for contempt and noted that the power lay in the court's inherent jurisdiction - The court stated that courts of superior jurisdiction had an exclusive and inherent jurisdiction to punish for both contempt in the face of the court and outside the court - See paragraphs 12 to 44.

Contempt - Topic 5561

Jurisdiction to punish for contempt - Criminal courts - Provincial Court judges or magistrates - General - The Alberta Court of Appeal held that a Provincial Court judge's jurisdiction to punish for contempt in the face of the court was limited to s. 440 of the Criminal Code of Canada - The court held that only in the most urgent circumstances should the trial judge against whom the contemptuous remarks were made preside over the trial - The court held that otherwise, the trial judge should cite the alleged contemnor for contempt and set a date for the show cause to be held before another Provincial Court judge - The court held that a third option was to leave the laying of a charge to the Attorney General - See paragraphs 12 to 44.

Courts - Topic 591

Judges - Duties - Duty to produce cases relied upon - The Alberta Court of Appeal held that a judge was not obligated to produce a case he relied upon to counsel - The court stated that "it has become the common practice for a judge, whenever he is aware of authority which has escaped the attention of counsel, to ensure that it is available to them and then invite response. That is the fair and prudent exercise of the judicial function and is a practice to be encouraged" - See paragraph 73.

Criminal Law - Topic 5654

Punishments - Imprisonment - Indictable offence for which no punishment is provided - The Alberta Court of Appeal held that s. 658 of the Criminal Code of Canada (providing for a five year sentence for indictable offences for which no punishment is specially provided) was inapplicable to contempt - The court held that contempt was punishable by less than five years' imprisonment - See paragraphs 47 to 58.

Cases Noticed:

R. v. Stilwell (1983), 40 A.R. 257, refd to. [paras. 6-8, 72, 79].

C.B.C. v. Cordeau (1979), 28 N.R. 541; 48 C.C.C.(2d) 289 (S.C.C.), refd to. [para. 16].

Ex Parte Lunan (1951), 99 C.C.C. 136, refd to. [para. 16].

R. v. Dunning (1980), 50 C.C.C.(2d) 296 (Ont. C.A.), refd to. [paras. 16, 19, 39].

McDermott v. Judges of British Guiana, L.R. 2 P.C. 341, refd to. [para. 18].

Re Rose, [1964] 1 C.C.C. 25; 42 D.L.R.(2d) 45; [1964] 2 O.R. 299, refd to. [para. 18].

R. v. Bubley, [1976] 6 W.W.R. 179; 1 A.R. 37, refd to. [para. 18].

R. v. Almon (1765), Wilm. 243; 79 E.R. 94 (K.B.), refd to. [para. 18].

R. v. Barker, [1980] 4 W.W.R. 202; 20 A.R. 611; 53 C.C.C.(2d) 322, refd to. [paras. 18, 24, 25, 76, 86, 91].

R. v. Pinx, [1980] 1 W.W.R. 77; 50 C.C.C.(2d) 65 (Man. P.C.), refd to. [paras. 26, 91].

R. v. Kopyto (1981), 32 O.R.(2d) 586; 60 C.C.C.(2d) 85, refd to. [paras. 27, 74, 91].

R. v. Hill, 25 C.C.C.(2d) 348 (B.C.C.C.); 37 C.R.N.S. 380 (B.C.C.A.), refd to. [para. 28].

R. v. Paul (1980), 33 N.R. 91; 52 C.C.C.(2d) 331 (S.C.C.), refd to. [paras. 29, 91].

Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283, refd to. [paras. 30, 33-35, 90, 94].

R. v. Cohn (1984), 4 O.A.C. 293; 48 O.R.(2d) 65 (Ont. C.A.), appld. [paras. 36, 45, 46, 48-52, 54-56, 60, 78, 91].

Re Layne and The Queen, 14 C.C.C.(3d) 149 (B.C.S.C.), appld. [paras. 37-39, 46, 48, 56-58, 92].

R. v. Heer (1982), 68 C.C.C.(2d) 333; 38 B.C.L.R. 176, refd to. [para. 38].

R. v. Hume, Ex parte Hawkins, [1966] 3 C.C.C. 43; 53 W.W.R.(N.S.) 406; 53 D.L.R.(2d) 453, refd to. [para. 40].

R. v. Hill, [1975] 6 W.W.R. 395; 25 C.C.C.(2d) 348; 62 D.L.R.(3d) 692, refd to. [para. 53].

R. v. Menard, 9 C.C.C.(2d) 15 (Que. Q.B.), dist. [para. 63].

R. v. Cote (1977), 13 N.R. 271; 33 C.C.C.(2d) 353 (S.C.C.), refd to. [para. 65].

R. v. Grey, [1900] Q.B. 36, refd to. [para. 78].

R. v. Owen, [1976] 3 All E.R. 239, refd to. [para. 94].

A.G. Quebec v. Hebert, [1967] 2 C.C.C. 111, refd to. [para. 95].

McKeown v. The Queen, [1971] S.C.R. 446, refd to. [para. 98].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d), sect. 11(f) [para. 47].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 2 [para. 13]; sect. 8 [para. 21]; sect. 440 [paras. 12, 88].

Provincial Court Act, S.A. 1971, c. 86, sect. 2(2) [para. 22].

Rules of the Supreme Court (Eng.), Order 52, rule 1(2)(a) [para. 32].

Authors and Works Noticed:

Barrie and Lowe, The Law of Contempt, pp. 259 [para. 32]; 273 [para. 17].

Bigelow, S.T., Contempt of Court (1958-1959), Crim. L. Q. 475, pp. 477, 479 [para. 100].

Oswald, Contempt of Court (2nd Ed.), pp. 13, 17 [para. 16]; 15 [para. 17].

Popovici, L'Outrage au Tribunal [para. 95].

Counsel:

Derek Spitz, Q.C., and Eileen M. Crane, for the appellant;

William Henkel, Q.C., and Jack Watson, for the respondent.

This appeal was heard before McDermid, Haddad and Belzil, JJ.A., of the Alberta Court of Appeal.

On March 13, 1985, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Haddad, J.A. - see paragraphs 1 to 83;

Belzil, J.A., dissenting - see paragraphs 84 to 103.

McDermid, J.A., concurred with Haddad, J.A.