R v Lavallee, 2022 MBCA 79

Citation: R v Lavallee, 2022 MBCA 79 Date: 20221006 Docket: AR21-30-09697 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN: ) O. G. PlotnikHis majesty the king ) for the Appellant ) Respondent ) D. Sahulka ) for the Respondent- and - ) ) Appeal heard andSEASON LAVALLEE ) Decision pronounced: ) September 21, 2022 (Accused) Appellant ) ) Written reasons: ) October 6, 2022 mainella JA (for the Court): Introduction [1] The contemnor was convicted of contempt in the face of the Court: refusing to attend court for the purpose of givingevidence at a murder trial (see

section 9 of the Criminal Code; and R v Asselin, 2019 MBCA 94 at paras 25, 43). She received a sentenceof 10 months’ imprisonment taking into account time in custody. She appeals her conviction and also seeks leave to appeal and, ifgranted, appeals her sentence. [2] After a hearing, we dismissed the conviction appeal with reasons to follow and reserved the sentence appeal. Theseare our reasons in relation to the conviction appeal. Background [3] The contemnor is a 28-year-old Indigenous woman. She has lived a difficult and traumatic life.

She struggles withdrug addiction, is often homeless and has a day-to-day subsistence lifestyle. In 2018, she was an eyewitness to a brutal beating andstabbing murder. Although reluctant, she assisted the police who used her cooperation to arrest and charge five individuals in connectionwith the murder. Afterwards, she was the subject of several threats and ultimately a beating for assisting authorities. [4] On June 19, 2020, the contemnor was personally served with a subpoena directing her to attend to testify at themurder trial on September 14, 2020, and to be available through to October 9, 2020.

Prior to the murder trial, despite being offeredsupports, she told the Crown attorney and the police that she was scared, would not testify and was prepared to go to jail for not doing so. [5] When the murder trial began, the contemnor did not appear in court to testify. A warrant for her arrest was issued. The jury was excused and the trial was delayed for a voir dire as to whether the Crown would be permitted to admit the contemnor’sout-of-court statement to police. On September 25, 2020, before the voir dire concluded, the contemnor was arrested on an unrelatedmatter.

She ultimately agreed to testify at the murder trial and did so on September 28, 2020. [6] The contempt of court was dealt with by a

summary process after the conclusion of the murder trial. The record is alittle unclear as to exactly how and when the trial judge cited the contemnor for contempt, but what is clear is that she had fair notice ofthe alleged contempt and was represented by counsel throughout the contempt proceedings; no procedural fairness concerns are raised(see R v K (B), (SCC), [1995] 4 SCR 186 at para 11).

[7] After several appearances, the criminal contempt hearing was set for February 5, 2021. At the commencement of thehearing, counsel for the contemnor stated: . . . [COUNSEL FOR THE CONTEMNOR]: What I can tell you, My Lord, is that it’s our intention today for [the contemnor] to be enteringa guilty plea to the offence of contempt, and to essentially argue about whether or not, in all the circumstances, she has purged thatcontempt and to seek a decision from Your Lordship on that matter.

In the event that Your Lordship concludes that this has not been purged we would be seeking preparation of a pre-sentence report with aGladue [R v Gladue, (SCC), [1999] 1 SCR 688] component to assist with fulsome sentencing submissions. . . . [8] The trial judge did a plea inquiry and accepted the guilty plea. No issue is taken as to that inquiry or as to whether theguilty plea was voluntary, unequivocal and informed. An evidentiary record was filed by consent and the contemnor testified.

In herevidence, she admitted that it was a “deliberate decision” not to testify because she was “scared.” She apologized for her reluctance totestify. No defence of duress or necessity was advanced to excuse her refusal to attend court to testify. [9] The trial judge was not satisfied that the contemnor had purged her contempt. In his view, although she wasgenuinely fearful, her failure to attend court to testify was a deliberate and intentional decision.

In his view, the contemnor’s “failure toattend court in answer to her subpoena was a contemptuous act which interfered with the conduct of the trial and, as a result, the properadministration of justice”. He said that the contemnor had “demonstrated indifference” to the various officials who offered assistance toher. However, he said he would consider her motivation for not testifying and her personal circumstances in assessing her moralblameworthiness for the purposes of sentence.

Discussion [10] The contemnor challenged her conviction, arguing that the trial judge made errors as to the legal standard he applied indeciding whether the contemnor had purged her contempt and that his finding was unreasonable.

In our view, there is no basis to disturbthe contemnor’s conviction for contempt in the face of the Court. [11] Because criminal contempt is a rare exercise of the Court’s “coercive powers”, it must be exercised with “‘scrupulouscare’ and restraint” in order to preserve public confidence in the administration of justice (R v Bunn (1994), (MBCA), 94 CCC (3d) 57 at 59 (Man CA); see also “Some Guidelines on the Use of Contempt Powers” (May 2001), online (pdf): CanadianJudicial Council <cjc-ccm.ca/cmslib/general/Contempt_Powers_2001_with_Header.pdf> (date accessed 6 October 2022). [12] A number of safeguards to prevent a misuse of criminal contempt powers exist.

The alleged contemnor is entitled tofair notice of the alleged contempt, time to answer the allegation with the assistance of counsel (absent the need for immediate actionbecause of their disruptive conduct), and a fair and public hearing where they enjoy the typical protections afforded any accused person,including the right to silence, the right to non-compellability, the right to make full answer and defence, the right to be tried by anindependent and impartial tribunal, and to be presumed innocent until proven guilty beyond a reasonable doubt (see Regina v Cohn(1984), (ON CA), 15 CCC (3d) 150 at 157-58, 162, 165-66 (Ont CA); and Regina v Ayres (1984), (ON CA), 15 CCC (3d) 208 at 215 (Ont CA)). [13] The significance of the contemnor’s guilty plea at the commencement of the criminal contempt hearing cannot beunderstated.

In our view, for the trial judge, it ended any debate as to whether he should make a finding of criminal contempt. As wasstated in R v Wong, 2018 SCC 25 (at para 62): . . . A guilty plea constitutes a formal admission of guilt to the crime with which the accused is charged. It relieves the Crown of itsburden to prove guilt beyond a reasonable doubt and constitutes a waiver of essential procedural safeguards.

An accused who pleadsguilty forfeits such constitutionally enshrined protections as the right to make full answer and defence, the right to silence, the rightagainst self-incrimination and the presumption of innocence. [14] In light of the guilty plea, the trial judge was entitled to consider the contemnor’s motivation for not attending courtwhich he said was “only relevant” for the purpose of sentencing to assess her moral culpability. [15] One final comment.

Significant time was spent before the trial judge and on the appeal on the topic of “purgingcontempt” and its relevance to the offence of criminal contempt. [16] As was noted in Harris v Harris, [2001] EWCA Civ 1645 (BAILII), the concept of purging one’s contempt is “rootedin quasi-religious concepts of purification, expiation and atonement” (at para 21).

While a lot of attention was paid to this idea in thiscase and to civil cases which discuss “purging”, we would emphasize that, in a criminal contempt proceeding, it is fundamental not tolose focus on the key attribute of the offence of criminal contempt: “the element of public defiance” (Carey v Laiken, 2015 SCC 17 atpara 31). [17] The jurisprudence is rich with instances where, as the law requires, a person is given the opportunity to answer for theirpotentially contemptuous conduct and they choose to waive their right to silence and provide an explanation or apology, such that they

are not cited for criminal contempt in the first place, there is not sufficient proof of their guilt for criminal contempt or their answer becomes a mitigating factor on sentencing (see, for example, Ayres ; Bunn ; R v Devost , 2010 ONCA 459 ; and R v DaFonte , 2016 ONCA 532 ). [ 18 ] Generally speaking, in a criminal contempt proceeding, the relevance of a person’s attempt to explain away or apologize for their actions (what was euphemistically referred to in this case as “purging”) will turn on the given facts. In some cases, it may improve the person’s situation—in other cases, not.

For the contemnor, given her formal admission of guilt, the only relevance to her explanation for why she didn’t initially come to court to testify at the murder trial (and her personal circumstances) was, as the trial judge correctly found, to potentially mitigate her sentence for criminal contempt. Disposition [ 19 ] In the result, the conviction appeal is dismissed. JA JA JA