R v Asselin, 2019 MBCA 94

Citation: R v Asselin, 2019 MBCA 94 Date: 20190919 Docket: AR18-30-09049 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : HER MAJESTY THE QUEEN ) ) F. N. Coniglio Respondent ) for the Appellant ) - and - ) ) A. C.

Bergen NAOMI SHIANNE ROSS ) for the Respondent ) (Accused) ) ) Appeal heard: - and - ) April 26, 2019 ) CLAUDE JOSEPH BRUNO RAYNALD ) asselin ) Judgment delivered: ) September 19, 2019 Appellant ) On appeal from 2018 MBQB 55 cameron JA Introduction [ 1 ] The appellant appeals his conviction for contempt of court at common law, applies for leave to appeal and, if successful, appeals his sentence of nine months’ incarceration. [ 2 ] The appellant argues that the Court of Queen’s Bench did not have jurisdiction over him as there was insufficient evidence before the judge who issued the material witness warrant for his arrest which ultimately resulted in him being brought before the Court for contempt.

He maintains that his illegal arrest nullified his detention and the subsequent contempt proceeding. Next, he argues that the Court should have proceeded with the contempt hearing pursuant to

section 708 of the Criminal Code (the Code ) as opposed to its common law power preserved in

section 9 of the Code . Finally, as noted above, he seeks leave to appeal and, if successful, appeals his sentence of nine months’ incarceration. [ 3 ] For the reasons that follow, I would dismiss his appeal. There was sufficient information before the Court to grant the material witness warrant. In any event, the appellant was properly detained and before the Court on the contempt proceeding.

Section 708 did not prevent the trial judge from proceeding pursuant to his common law power of contempt. [ 4 ] The sentence imposed should be guided by sentences imposed on similarly situated individuals in similar situations. In this case, those situations include persons who refuse to be sworn or testify in murder trials or trials for serious violent offences. The trial judge imposed a sentence well within the range. He did not commit any error in law or principle and the sentence is not unfit.

Background and Proceedings [ 5 ] The appellant was subpoenaed as a witness in the jury trial of Naomi Ross (Ms Ross) for second degree murder. He had previously given two statements to the police and testified at Ms Ross’s preliminary hearing. After receiving his subpoena, a series

of emails between representatives of the Crown’s office and the appellant were exchanged wherein the appellant indicated that he wouldnot meet with the Crown assigned to prosecute the matter, nor would he attend court to testify at the murder trial. The trial judgedescribed the appellant’s responses to attempts by the Crown to speak with him as follows (at para 7): • he first said he “was not available to go at all and not interested either… Sorry.

Good luck with the trial”; • he next communicated that he would be on vacation that week and would not attend, stating, “… So if you have to put [out] awarrant for my arrest… Go for it. Nothing I can do, but if a warrant is issue[d] well I won’t be helping you in court… That is apromise”. I pause to reiterate that the trial was taking place over two weeks; and • he last replied stating, “I told the truth the first [time] can’t afford to [lose] wages anymore. You do what you have to [M]iss [theCrown].

Sorry but i ain’t showing up.” [sic] [6] In response to the apparent refusal of the appellant to attend court, the Crown filed a notice of motion requesting awarrant in Form 17 pursuant to section 698(2) of the Code. The Queen’s Bench judge who granted the material witness warrant (theissuing judge) was not the trial judge.

Despite efforts to execute the warrant, the appellant was not arrested until after the murder trialhad been completed and Ms Ross had been acquitted. [7] As I will later explain, while the process that followed the appellant’s arrest was not perfect, the appellant wasadvised at his first appearance in court that he was being detained as a result of contempt proceedings. At his next appearance, he wasbrought before the trial judge and the matter was adjourned for him to have his counsel appear.

At the first appearance with counsel, thetrial judge made it clear that the appellant was in custody based on the alleged contempt and that he anticipated that the matter wouldproceed by way of a

summary process without any indictment or charges being laid. At that time, the Crown indicated that it wasrequesting that the Court exercise its common law power to impose punishment for contempt pursuant to

section 9. By his nextappearance, the appellant had filed an application requesting habeas corpus with certiorari in aid to quash the material witness warrant. The parties discussed whether the contempt proceedings should proceed pursuant to the common law, as found in

section 9, orsection 708, which specifically provides for contempt proceedings with an accompanying maximum penalty in situations such as this. As there was to be a contested hearing regarding the issue, a date was set for an application for judicial interim release which wassubsequently granted.

The appellant’s application to quash the warrant and for habeas corpus was not dealt with. [8] At his contempt hearing, the appellant argued that the material witness warrant was wrongly issued for his arrestbecause the affidavit filed by the Crown in support of its motion was insufficient in that it failed to demonstrate that he was likely to givematerial evidence as required by section 698(2). The trial judge summarily rejected the appellant’s argument, describing it as a“mischaracterization of the evidence before the [issuing judge]” (at para 4).

In his view, the issuing judge had an affidavit before himindicating that the appellant had given “two statements to police describing hearing a physical altercation at a location that led to policegoing to the scene” (ibid). He found that, while the affidavit did not state that the evidence was material, it was clear that it was. Hefurther noted that the subpoena itself indicated that the charge was murder and stated ‘“it has been made to appear that you are likely togive material evidence for the prosecution”’ (ibid).

He rejected the testimony of the appellant regarding his proffered lawful excuses fornot attending in response to the subpoena and convicted him of common law contempt. [9] In relation to the sentence, the issue was whether, as a superior court judge, the trial judge retained his common lawauthority to sentence the appellant for contempt, as preserved by

section 9, or whether he was limited to sentencing the appellantpursuant to

section 708. That

section provides for a maximum penalty of 90 days of incarceration for failing to attend court whensubpoenaed to do so. The trial judge found that his ability to deal with the matter pursuant to

section 708 did not “oust or trump” hisability to deal with the contempt pursuant to

section 9 (at para 17) and that “this court’s inherent power to punish for contempt under s. 9is available” (at para 21). [10] Not being bound by the limit prescribed by

section 708, the trial judge sentenced the appellant to nine months’incarceration and credited him with one and one-half months of pre-sentence custody, leaving a go-forward sentence of seven and one-half months. Grounds of Appeal [11] The appellant raises three grounds of appeal. First, he submits that the trial judge erred in finding that there wassufficient evidence to show that he was a person who was likely to give material evidence as required by section 698(2). In this regard,he argues that the trial judge erred in failing to quash the order and Form 17 warrant that resulted from those proceedings. Next, heargues that the trial judge erred in determining that

section 708 did not apply to limit his ability to sentence the appellant. Finally, hesubmits that, should he be unsuccessful in his

section 708 argument, his sentence of nine months is essentially unfit and that he shouldnot receive a period of incarceration totalling more than 60 days. Ground 1―Did the trial judge err in finding there was sufficient evidence to show that the appellant was a material witness at the timethe warrant issued? [12] As indicated earlier, after being arrested, the appellant made an application for habeas corpus with certiorari in aid,requesting that the material witness warrant be quashed.

He did not challenge the original subpoena that had been issued and served onhim pursuant to section 698(1) of the Code, which formed the basis for the alleged contempt. The appellant contends that, because thewarrant was issued absent sufficient evidence, the entire process was flawed, including rendering his detention and the entire contemptproceeding a nullity. In support of his argument, he relies on the case of R v Singh (1990), (AB KB), 57 CCC (3d)444.

In that case, Medhurst J of the Alberta Court of Queens Bench quashed a Form 17 warrant on the basis that there was no evidencepresented to the justice of the peace that Singh was a person likely to give material evidence. Having quashed the warrant, the Court

declared all orders of detention made in relation to the warrant to be invalid. [13] The Crown argues that the trial judge did not err in finding that the information before the issuing judge disclosed thatthe appellant had material evidence to give at the trial.

It also argues that the fact that the warrant had been executed and the trial judgehad granted the appellant judicial interim release rendered moot his application for habeas corpus with certiorari in aid to quash thematerial witness warrant. [14] There is no allegation that the trial judge erred in his determination of the correct legal test to be applied in determiningthe validity of the warrant.

The question for the reviewing judge (in this case the trial judge) was whether there was sufficient andcredible evidence that could permit the issuing judge to authorise the material witness warrant (see R v Morelli, 2010 SCC 8 at para 40). The facts and inferences drawn by the issuing judge in reaching that determination are subject to review on the deferential standard ofpalpable or overriding error (see Canadian Broadcasting Corp v Manitoba (Attorney General) et al, 2009 MBCA 122 at para 22). In thiscase, the trial judge did not enunciate a standard of review.

Nonetheless, his finding that the issuing judge “clearly . . . had evidencebefore him” (at para 4) of the materiality of the appellant’s evidence demonstrates that he was aware that he was reviewing the decisionof the issuing judge in light of the evidence that was before that judge and that he found that it could meet the required standard. [15] In this case, unlike in Singh, there was evidence from which the issuing judge could have concluded that the appellantwas a material witness, including affidavit evidence that he had given two statements to the police regarding the murder, that hedescribed hearing an altercation and that he ultimately led the police to the scene of the crime.

It was open to the issuing judge to inferthat the events were connected. [16] In addition, in my view, the appellant’s argument conflates the issue of his arrest pursuant to the material witnesswarrant with the contempt proceedings. The warrant was not part of the contempt process. It was based on the appellant’s anticipatedfailure to attend court to answer a subpoena that he never challenged. The warrant simply provided a means for the Crown to attempt tohave him arrested and appear in court at the murder trial before the contempt occurred.

In this case, the contempt occurred only after theappellant failed to attend the murder trial in accordance with the subpoena. It was always the position of the Crown and the Court thatthe appellant was being held separately on the contempt proceedings.

As it turned out, the material witness warrant was the process bywhich the appellant was brought before the Court and provided the Crown with the opportunity to initiate the contempt proceedings. [17] At his first appearance in court, after briefly describing the circumstances and offering disclosure to the appellant, theCrown clearly indicated that it was asking for him to be detained in custody on the section 698(2) warrant, as well as on the contemptproceedings.

At that point, the presiding superior court judge possessed the common law authority to order the appellant to be remandedin custody for contempt and adjourn the matter for him to obtain counsel (see R v K (B), (SCC), [1995] 4 SCR 186 atparas 10-11). Contrary to the position of the appellant, there was no requirement for an additional warrant to have been issued when hefailed to appear at the murder trial in order for him to have been lawfully detained for contempt. [18] Having stated the above, an alleged contemnor must be provided with proper notice.

In my view, it would have beenpreferable if the Crown would have filed and served a notice of motion or indictment asking that the appellant be held in custody,specifying the basis on which it was intending to proceed and the nature of the relief that it sought. [19] In addition, written notice is preferable when, as was found by the trial judge in this case, the contempt is ex facie of theCourt or was committed outside of the Court’s knowledge, as opposed to one committed in facie where all the facts of the contempt arewithin the knowledge of the Court. (For a fuller explanation of in facie versus ex facie contempt, see Jeffrey Miller, The Law ofContempt in Canada, 2nd ed (Toronto: Carswell, 2016) at 25-26.) In my view, such notice would have also clarified that the Crown wasinitiating the proceedings, as opposed to the Court. [20] In its advisory paper, “Some Guidelines on the Use of Contempt Powers” (May 2001), online (pdf): Canadian JudicialCouncil <www.cjc-ccm.gc.ca/cmslib/general/Contempt_Powers_2001_with_Header.pdf> (the CJC and the CJC Guidelinesrespectively), the CJC specifically approves of the use of such notice (see pp 13-14, 28; also see Regina v Froese and BCTVBroadcasting System Ltd (No 3) (1980), (BC CA), 54 CCC (2d) 315 at para 19 (BC CA)).

In this case, formal noticecould have avoided confusion regarding the procedure and penalty sought by the Crown. [21] On the other hand, the CJC Guidelines summarise that, in Regina v Cohn (1984), (ON CA), 15 CCC(3d) 150 (Ont CA), the Court addressed the issue of the right of a contemnor to know what is charged, stating (at p 28): It is important, however, that an alleged contemnor be informed precisely what is alleged against him or her, i.e. for refusing to be swornor refusing to give evidence, or for disobeying a court order, etc., and he or she should be given all reasonable particulars, especiallywhen contempt out of the face of the court is alleged.

These particulars need not be in writing, for in most cases the issue can be statedorally with sufficient precision. [emphasis added] [22] Thus, while advisable, the failure to file a formal notice of motion or indictment was not fatal. The notice of contempt,the intended procedure and the underlying facts were disclosed verbally. Written particulars were also provided. [23] In my view, the appellant was properly before the Court and detained on the contempt charge.

While I have declinedhis invitation to find that the trial judge erred in refusing to quash the material witness warrant, to do so in the circumstances of this casewould not have changed the fact that he was subject to the contempt proceedings. Contempt Pursuant to the Common Law and

Section 9 Versus

Section 708 The Legislation

[24]

Section 9 provides: Criminal offences to be under law of Canada 9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under

section 730 (

a) of an offence at common law, (

b) of an offence under

an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland,or (

c) of an offence under

an Act or ordinance in force in any province, territory or place before that province, territory or place became aprovince of Canada, but nothing in this

section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had,immediately before April 1, 1955, to impose punishment for contempt of court. [25] Willfully disobeying a court order such as a subpoena may constitute contempt of court at common law.

In UnitedNurses of Alberta v Alberta (Attorney General), (SCC), [1992] 1 SCR 901, McLachlin J (as she then was), writing onbehalf of a majority of the Court, stated (at p 933): To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus),with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (themens rea) [26] The “general rule” is that the state is entitled to every person’s evidence (R v S (RJ), (SCC), [1995] 1SCR 451 at paras 2, 277, 303; also see Re Spencer and The Queen (1983), (ON CA), 2 CCC (3d) 526 at 533 (OntCA), aff’d (SCC), [1985] 2 SCR 278). [27] In R v Abdullah (

G) et al, 2010 MBCA 79 at paras 65-79, Hamilton JA held that service of a subpoena compels bothattendance at court and the provision of testimony. [28]

Section 708 provides: Contempt 708(1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawfulexcuse, to attend or remain in attendance accordingly is guilty of contempt of court.

Punishment 708(2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under thissection and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or toboth, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any. The Positions of the Parties [29] The appellant argues that the common law power to punish for the offence of contempt of court has been circumscribedby

section 708. In his view, the entire proceedings against him should have been taken pursuant to that

section and the provision ofauthority to “[a] court, judge, justice or provincial court judge” to deal with a person to whom the

section applies clearly indicates that itis applicable to a provincial superior court judge. [30] In support of his position, the appellant relies on the Alberta Supreme Court decision of Regina v McKenzie (1978),1978 ALTASCAD 185 , 41 CCC (2d) 394 (AD), wherein the Court overturned a conviction for contempt of a witness whorefused to testify at a preliminary hearing. In obiter, Sinclair JA questioned whether the Crown could indict the accused for contempt asopposed to proceeding pursuant to

section 472 of the Code (as it then was). In his view, that

section prescribed the only way in which arecalcitrant witness at a preliminary hearing could be dealt with. [31] Next, relying on R v Clement, (SCC), [1981] 2 SCR 468, the appellant argues that

section 708 must begiven meaning. In his view, to allow for common law contempt in a situation such as this renders

section 708 meaningless and contraryto the

interpretation of section 116(1) (now section 127(1)) provided in Clement. In support of his position, the appellant relies onAbdullah, which dealt with a charge of disobeying a court order pursuant to section 127(1) of the Code. Section 127(1) permits its use“unless a punishment or other mode of proceeding is expressly provided by law” (the proviso). In that case, Hamilton JA stated that, ifthe accused had failed to attend court instead of refusing to testify, it seemed the proviso would apply to prohibit a prosecution pursuantto section 127(1) in light of

section 708 (see para 99).

[32] The Crown argues that

section 708 is an inclusive provision that does not exclude the power of a judge of the superiorcourt to proceed. Rather, it conveys powers to a number of levels of court that might not otherwise have them. It distinguishes the casesthat the appellant relies on in dealing with the exclusionary proviso found in section 127(1).

It relies on R v Vermette, (SCC), [1987] 1 SCR 577; R v Publications Photo-Police Incorpore (1988), (QC CA), 42 CCC (3d) 220 (Qc CA)(Publications Photo-Police (CA)); and Quebec (Attorney General) v Publications Photo-Police Inc, (SCC), [1990] 1SCR 851 (Publications Photo-Police (SC)), as authority for the proposition that the provisions of the Code that deal with contemptuousbehaviours do not oust the inherent power of the superior court to deal with those behaviours pursuant to the common law offence ofcontempt. [33] As indicated earlier, the trial judge agreed with the Crown. He stated that

section 708 “does not control theseproceedings and that this court’s inherent power to punish for contempt under s. 9 is available” (at para 21). Analysis Standard of Review [34] The parties agree, as do I, that the trial judge’s decision is to be reviewed on a standard of correctness. In my view, ithas not been shown that the trial judge erred in his

interpretation of the common law power of a superior court to punish for contempt. The Jurisprudence―The Common Law and the Code [35] The Supreme Court of Canada has had the opportunity to consider the interplay between the common law offence ofcontempt and various provisions in the Code that address contemptuous behaviour.

It has consistently found that those types ofprovisions do not oust the power of a superior court to deal with contempt pursuant to the common law. [36] For example, in In Re Gerson/In Re Nightingale, (SCC), [1946] SCR 538, two witnesses refused totestify in a trial where they claimed that their testimony might incriminate them regarding charges on which they were awaiting trial. Inthat case, the superior court judge held them in contempt and sentenced them to a period of incarceration. In their application for habeascorpus, they argued that, rather than being held in contempt and subject to a

summary proceeding, they should have been charged andtried under the applicable provisions of the Code, thereby entitling them to the right to make full defence. In summarily dismissing theargument, Rinfret CJC, in chambers, stated, “The power to punish for contempt is inherent in courts of superior original jurisdiction,quite independent of enactments in codes or statutes relating to their disciplinary powers” (at p 544). [37] In Vermette, the Court considered whether, in light of the abolishment of the common law offences found in

section 8 ofthe Code (now

section 9), the Crown could proceed by indictment where the accused threatened a witness outside of court, therebycommitting an ex facie contempt. The Court held that the power to deal with contempt constituted “part of the inherent and essentialjurisdiction of the courts” (at p 581). It further held that proceeding by indictment for contempt ex facie in the superior court had notbeen abolished by

section 8 but, rather, was preserved by it (see paras 8-11). On the other hand, it found that proceeding by indictmentpursuant to the common law power for contempt was not an offence created by the Code. Further, an accused could not elect to be triedbefore a provincial court as, unlike the superior court, that court only had jurisdiction over in facie contempt and not ex facie contempt.

The Court concluded by quoting In Re Gerson and re-enforcing that the fact that the accused could have been charged with obstructionof justice under the Code did not preclude the Court from exercising its common law power of contempt. [38] The McKenzie case relied on by the appellant involved circumstances where the Crown filed an indictment alleging acriminal contempt against a witness for refusing to testify at a preliminary inquiry in the Provincial Court (an in facie contempt).

In thatcase, the Alberta Supreme Court questioned whether the Crown had jurisdiction to do so but decided it need not determine the matter. Instead, it found that section 472(1) (now

section 545) exclusively governed the situation. That

section provides the circumstances underwhich a person may be imprisoned for refusing to testify at a preliminary hearing. [39] McKenzie was decided before Vermette. In McKenzie, the Court did not discuss the inherent and constitutionaljurisdiction of a superior court to exercise its common law powers of contempt. Neither did it consider the inherent powers of theProvincial Court to deal with in facie contempt.

Based on the above, in my view, McKenzie is of limited assistance and distinguishableon the facts of this case. [40] Next, in MacMillan Bloedel Ltd v Simpson, (SCC), [1995] 4 SCR 725, the Court considered theconstitutionality of section 47(2) of the Young Offenders Act, RSC 1985, c Y-1 (since repealed and replaced with the Youth CriminalJustice Act, SC 2002, c 1). That

section purported to transfer exclusive jurisdiction to the youth court in respect of every ex faciecontempt committed “against any other court” (at para 6). In characterising the nature of criminal contempt of court, Lamer CJC,writing for a majority of the Court, found that it had distinct characteristics from other crimes and could be “distinguished from othercriminal offences” (at para 24).

He said, “While other crimes occur in society and the law merely defines or criminalizes them, contemptof court does not occur in the absence of a court” (ibid). [41] After considering that Parliament had the power to confer jurisdiction over ex facie contempt to the youth court, LamerCJC then considered the constitutionality of the “exclusive” grant of power (at para 27) and whether it could remove the inherentjurisdiction of the superior court to exercise its power of contempt. He emphasised (at paras 37-38): In the constitutional arrangements passed on to us by the British and recognized by the

preamble to the Constitution Act, 1867, theprovincial superior courts are the foundation of the rule of law itself. Governance by rule of law requires a judicial system that canensure its orders are enforced and its process respected. In Canada, the provincial superior court is the only court of general jurisdictionand as such is the centre of the judicial system. None of our statutory courts has the same core jurisdiction as the superior court andtherefore none is as crucial to the rule of law.

To remove the power to punish contempt ex facie by youths would maim the institutionwhich is at the heart of our judicial system. Destroying part of the core jurisdiction would be tantamount to abolishing the superiorcourts of general jurisdiction, which is impermissible without constitutional amendment.

The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and themaintenance of the rule of law. It is unnecessary in this case to enumerate the precise powers which compose inherent jurisdiction, asthe power to punish for contempt ex facie is obviously within that jurisdiction. The power to punish for all forms of contempt is one ofthe defining features of superior courts. The in facie contempt power is not more vital to the court's authority than the ex facie contemptpower.

The superior court must not be put in a position of relying on either the provincial attorney general or an inferior court acting atits own instance to enforce its orders. Furthermore, ex facie contempt is not limited to the enforcement of orders. It can includeactivities such as threatening witnesses or refusing to attend a proceeding (see R. v. Vermette, (SCC), [1987] 1 S.C.R.577).

In addition, the distinction between in facie and ex facie contempt is not always easily drawn (see B.C.G.E.U. [v British Columbia(Attorney General), (SCC), [1988] 2 SCR 214], supra), increasing the difficulty of saying one is more essential to thecourt’s process than the other. [emphasis added] [42] Finally, as mentioned by the trial judge, the authors in The Hon EG Ewaschuk, Criminal Pleadings & Practice inCanada, 2nd ed (Toronto: Thomson Reuters, 2017) vol 4 (loose-leaf updated May 2017), ch 27 at paras 29:0180, 29:0272, note that theSupreme Court of Canada case of Publications Photo-Police (SCC) reinforced the notion that the fact that a contemptuous act mayconstitute a criminal offence does not prevent the Court from citing a person for contempt.

In Publications Photo-Police (CA), theQuebec Court of Appeal held that the fact that

section 442 (now

section 486) provided that a violation of a non-publication order of theidentity of a complainant constituted a specific offence meant that the superior court did not have jurisdiction to hold the offender incontempt pursuant to its common law power to do so. In a one-line decision, relying on the reasons as stated in Vermette, the SupremeCourt of Canada overturned the appellate court and restored the contempt convictions of the superior court. [43] In my view, the above jurisprudence clearly establishes that the provisions of the Code dealing with various aspects ofcontempt do not oust the common law power of the superior court to deal with contempt pursuant to

section 9. This conclusion appliesequally to situations where a witness fails to appear in answer to a subpoena as contemplated in

section 708. I agree with the Crown thatthat

section should be read as inclusive, rather than exclusive. That is, it provides the powers contained therein to a number of levels ofcourt as opposed to constituting an attempt to exclude the common law power of the superior court exercisable pursuant to

section 9. Disobey Court Order―Section 127(1) [44] The Clement decision relied on by the appellant dealt with the

interpretation of section 116(1) (now section 127(1) ofthe Code). As stated earlier, that

section provides that a person may be charged with disobeying a court order, subject to the proviso,which is “unless a punishment or other mode of proceeding is expressly provided by law”. In that case, the Supreme Court of Canadaheld that the proviso did not operate to oust the common law jurisdiction to deal with contempt of court. In Abdullah, Hamilton JAsummarised the findings in Clement as follows (at para 92): In R. v.

Clement, (SCC), [1981] 2 S.C.R. 468, the Supreme Court of Canada held that for the punishment or mode ofproceeding to be “expressly provided by law,” the punishment or other mode of proceeding must be enacted by statute law and it cannotoriginate from common law. Thus, a charge of common law contempt does not fall within the proviso. Section 127(1) will be “availableas the basis for a charge for disobedience of a lawful court order whenever statute law (including regulation) does not expressly provide apunishment … or other mode of proceeding, and not otherwise” (Clement, at p. 477).

On the other hand, resort cannot be had to s.127(1) where the Code expressly provides a punishment or other proceeding for the disobedience of a court order. [45] In Clement, when holding that the proviso in section 127(1) prohibits prosecution where other provisions of the Codeexist that expressly provide for punishment, Estey J stated at (pp 478-79): It is an ancient rule of

interpretation of all statutes, criminal and civil alike, that where possible a meaning should be assigned to wordsemployed by the Legislature which will render the enactment useful or of some meaning in the practical workings of the state. Inresponse to the submission of the respondent, it must be pointed out that there are other provisions in the Criminal Code, supra, whichare indeed instances of other punishment or proceedings being “expressly provided” such as s. 472 which provides for punishment ofpersons refusing to give evidence at a preliminary enquiry.

In such a circumstance, s. 116(1) would have no application as it would beexcluded by its own parenthetical expression to which, in that circumstance, a meaning would be assigned. [46] Based on the above passage, the appellant argues that, in order to ascribe meaning to

section 708, it must be read asexcluding the common law power of a judge to proceed with contempt proceedings when a witness fails to answer a subpoena. In thisregard, he also relies on Abdullah. [47] In Abdullah, the accused were charged with attempting to obstruct justice and disobeying a court order (subpoena) incircumstances where they attended court in response to a subpoena but refused to be sworn. Hamilton JA found that the proviso insection 127(1) did not operate to prevent concurrent prosecutions for attempting to obstruct justice (see section 139(2) of the Code) anddisobeying a court order.

She observed that Clement and other jurisprudence that would apply the proviso did so where the ‘“other”’offences “refer or allude specifically to breaches of court orders” (at para 97).

Unlike those “other” charges, she found that the offenceof attempting to obstruct justice “contemplates many different types of conduct” (ibid). [48] In order to exemplify a situation where the proviso in section 127(1) might have applied, Hamilton JA stated, “I simplyobserve that if Abdullah or Amyotte had failed to attend court, rather than refused to testify, as required by the subpoena, it seems thatthe proviso would apply given s. 708” (at para 99). [49] In my view, the argument of the appellant must fail.

The appellant conflates the jurisprudence regarding the proviso insection 127(1) with the inherent common law power of a superior court to punish for contempt. The proviso is a discrete provision in the

Code. When Hamilton JA made the above statement, she was referring to the proviso and

section 708 and not the ability to proceed bycontempt under the common law. Indeed, in that case, the Court was careful to distinguish between contempt proceedings and aprosecution under the Code (see paras 86-89). There is nothing in the language of

section 708 that purports to oust the common lawjurisdiction of the court over contempt proceedings. I would therefore decline to interpret

section 708 in the manner suggested by theappellant. [50] Based on all of the above, I would therefore dismiss this ground of appeal. Sentence Appeal [51] The appellant’s original argument was that the sentence of nine months’ incarceration imposed by the trial judge wasillegal as it exceeded the maximum 90-day period of incarceration provided for in

section 708. Alternatively, in oral argument, he askedthe Court to consider a period of incarceration totalling 90 days (including the time that he spent in pre-sentence custody). He submittedthat he should have been sentenced to a period of incarceration guided by the maximum set in

section 708. He referred to sentencesimposed in R v Skiline, 1994 CarswellSask 364 (CA); and R v Ticknovich, 2003 ABQB 938. In Ticknovich, the accused was sentenced to15 days’ incarceration to be served intermittently, plus three months’ probation for contempt of court for failing to appear in answer to asubpoena pursuant to the procedure set out in

section 708. In Skiline, the accused was convicted of contempt pursuant to

section 708 bya Provincial Court judge and sentenced to 10 days’ incarceration.

His conviction appeal was dismissed by the Saskatchewan Court ofAppeal. [52] The Crown argues that the appellant did not appeal on the basis of fitness of sentence but that, in any event, thesentence was fit. [53] Burnett JA succinctly described the standard of review on a sentence appeal in R v Rose, 2019 MBCA 40, as “absent anerror in law or in principle that had an impact on sentence or the imposition of a demonstrably unfit sentence, an appellate court mustshow deference” (at para 19). [54] First, I would decline to follow the Ticknovich and Skiline cases as suggested by the appellant.

Each of those casesdealt with

section 708 of the Code and neither contained an analysis of the significance of the offence or sentencing ranges. In my view,a sentence such as the ones imposed in those cases would not reflect the high level of moral blameworthiness of the appellant in thiscase.

In light of the facts of this case, including the planned and deliberate nature of the appellant’s contempt, an appropriate sentencingrange for this case should be similar to situations where contempt has been committed by a person who refuses to be sworn or providetestimony. [55] In the case of Regina (City) v Cunningham, 1994 CarswellSask 233, the Saskatchewan Court of Appeal described someof the factors to consider (albeit in the context of a different form of contempt) (at para 18): In imposing a sentence for criminal contempt the sentencing judge may properly take into consideration the extent of the wilful anddeliberate defiance of the Court’s order, the seriousness of the consequences of the appellant’s contemptuous behaviour, the necessity ofeffectively terminating the appellant’s defiance as required by the public interest as well as the importance of deterring such conduct inthe future.

Given these standards or criteria, an appellate court should respect the discretion of the sentencing judge unless error isdemonstrated in balancing the various considerations. We find no such error in this case. [56] In R v Jacob, 2008 MBCA 7, Scott CJM, writing for the Court, stated (at paras 25-26): The purpose of criminal contempt is explained by Mr. Justice E. G.

Ewaschuk¸ Criminal Pleadings & Practice in Canada, 2nd ed.,looseleaf (Aurora: Canada Law Book, 2007) as follows (at para. 29:0040): Criminal contempt is aimed at punishing public acts which tend to bring the administration of justice into disrepute and interfere with thedue administration of justice. It is directed at the protection of the integrity of the administration of justice. Its general purpose is toprotect the fairness of the trial process. General deterrence is the principal factor to be considered when a witness refuses to testify. See Neuburger [R v Neuburger, 1995CarswellBC 1682 (CA)].

The highest custodial sentences for contempt are imposed when a witness refuses to be sworn or to give evidence. See Clayton C.

Ruby, Sentencing, 6th ed. (Markham: LexisNexis Canada Inc., 2004) at para. 23.445. [57] A brief review of sentences for similar offences demonstrates a range of 12 months to three years’ incarceration for afirst offence of contempt by persons who refuse to be sworn or testify in murder or serious violent-offence trials (see, for example,Regina v Lamer (1973), (QC CA), 17 CCC (2d) 411 (Qc CA) (one year―murder); R v Neuburger, 1995 CarswellBC1682 (CA) (15 months―murder); Jacob (two years―murder); R v Amyotte and Abdullah, 2008 MBCA 48 (36 months―murder); R vYegin, 2010 ONCA 238 (three years―murder); R v McMillan, 2011 BCSC 1537 (18 months—kidnapping and significant assault); and Rv Bidesi, 2016 BCSC 171 (24 months―murder)). [58] In this case, the trial judge described the aggravating factors as including the fact that the trial was for a “grave personalviolence offence” and the appellant’s “brazen comments and attitude to prosecutors” (at para 26).

He noted that the appellant effectively“dared” (ibid) the prosecutors to have him arrested. On the other hand, he recognised that the offence was committed out of foolishdisregard for the appellant’s legal and moral duty as opposed to loyalty to a gang or an individual (see para 27). In mitigation, heconsidered the appellant’s personal history, finding him to be a contributing member of the community. He stated that he was notconsidering the appellant’s previous criminal record as a factor.

He also did not consider the potential impact of the appellant’s refusalto testify as he did not have evidence regarding that issue.

[ 59 ] In light of all of the above, the trial judge did not err in principle or law and the sentence of nine months’ incarceration is not unfit. Decision [ 60 ] Based on all of the above, I would dismiss the appellant’s conviction appeal. While I would allow leave to appeal sentence, I would dismiss the sentence appeal. JA I agree: JA I agree: JA