R. v. Pinx, (1979) 1 Man.R.(2d) 1 (CA)

• Judge: Freedman, C.J.M., Monnin, Hall, Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 17, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 1 Man.R.(2d) 1 (CA)

R. v. Pinx (1979), 1 Man.R.(2d) 1 (CA)

MLB headnote and full text

R. v. Pinx

Indexed As: R. v. Pinx

Manitoba Court of Appeal

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

September 17, 1979.

Summary:

This case arose out of the conviction of a lawyer for contempt in the face of the court after he failed to appear at the appointed time for trial. The lawyer scheduled two criminal trials at the same time in different places. His attempts to arrange a substitution for himself or an adjournment for one of the trials were made too late and he failed to appear. The trial judge instructed counsel for the Crown to inform the lawyer that he should appear on a certain day. When the lawyer appeared as instructed, the trial judge convicted him of contempt after refusing to accept his explanations. The lawyer appealed.

The Manitoba Court of Appeal allowed the appeal and set aside the conviction. The Court of Appeal held that, although failure to appear was prima facie contempt in the face of the court, which the trial judge had jurisdiction to punish, the lawyer should have been given notice of the charge and an opportunity to make full answer and defence - see paragraphs 11 to 19.

Huband, J.A., concurring in the result, was of the further opinion that the lawyer's conduct in the circumstances did not constitute contempt - see paragraphs 20 to 28.

Monnin, J.A., dissenting, was of the opinion that both procedurally and on the merits the lawyer was properly convicted of contempt - see paragraphs 29 to 54.

Barristers and Solicitors - Topic 673

Duty to court - Contempt - What constitutes - Failure to attend - The Manitoba Court of Appeal held that the failure of counsel to attend court at the appointed time was prima facie contempt of court - See paragraphs 11, 16, 17 and 45.

Barristers and Solicitors - Topic 720

Duty to court - Appearance - Double booking - The Manitoba Court of Appeal strongly disapproved of the practice of counsel of scheduling two court proceedings at the same time - See paragraphs 1 to 2 and 53.

Contempt - Topic 515

Contempt in the face of the court - What constitutes - The Manitoba Court of Appeal held that the failure to appear in court at the appointed time was prima facie contempt in the face of the court - See paragraphs 11, 16, 17 and 45.

Contempt - Topic 5026

Practice and procedure - Notice and hearing - Contempt in the face of the court - Failure of counsel to attend - The Manitoba Court of Appeal held that, where counsel fails to attend court at the appointed time, which is prima facie contempt in the face of the court, he must be given notice of a contempt charge and the right of making full answer and defence before he may be convicted of contempt - See paragraphs 11 to 14 and 17 to 19.

Contempt - Topic 5561

Jurisdiction to punish for contempt - Criminal courts - Provincial courts - General - The Manitoba Court of Appeal held that the provincial court has the power to punish only contempt in the face of the court, which included the failure of counsel to attend at the appointed time - See paragraphs 11, 42 to 44 and 46 to 50.

Cases Noticed:

R. v. Jones (1978), 42 C.C.C.(2d) 192, appld. [para. 17]; consd. [para. 54].

R. v. Swartz (1977), 34 C.C.C.(2d) 477, appld. [para. 21].

Izuora v. The Queen, [1953] A.C. 327, consd. [para. 25].

R. v. Almon, 97 E.R. 94, consd. [para. 48].

In re Helik, 47 M.R. 179; [1939] 2 W.W.R. 123, consd. [para. 54].

R. v. Magistrate Taylor, Ex parte Crepeau, [1965] 4 C.C.C. 81, consd. [para. 54].

McKeown v. The Queen, [1971] S.C.R. 446; 16 D.L.R.(3d) 390, appld. [para. 11]; consd. [para. 54].

R. v. Hill (1974), 27 C.R.N.S. 200; affirmed (1975), 31 C.R.N.S. 255, consd. [para. 54].

R. v. Barrette (1976), 33 C.R.N.S. 377, consd. [para. 54].

R. v. Bubley, [1976] 6 W.W.R. 179, consd. [para. 54].

R. v. Swartz (1977), 34 C.C.C.(2d) 477, consd. [para. 54].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 9(1) [para. 43].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 8, p. 6 [para. 16].

Counsel:

J.G. Dangerfield, for the respondent;

L.C. Greenberg, Q.C., for the accused/appellant.

This case was heard on June 27, 1979, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN, HALL, MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On September 17, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FREEDMAN, C.J.M. - see paragraphs 1 to 15;

HUBAND, J.A. - see paragraphs 16 to 28;

MONNIN, J.A., dissenting - see paragraphs 29 to 55.

HALL and MATAS, JJ.A., concurred with FREEDMAN, C.J.M.