R. v. BURLES, 2022 NWTCA 3, OCTOBER 31, 2022.

FACTS:  During a trial, the accused sought to call Mr. Burles as a witness. He was in-custody and did not want to appear.  He subsequently did so and testified.  At the completion of his evidence, the following exchange occurred:

THE COURT: Mr. Burles, I understand, Sir, you refused to come to court this morning?

A: Yeah.

THE COURT: Why?

A: I had an exam to take this afternoon, which I missed, so…

THE COURT: When do you get out of jail?

A: I don’t know, probably October.

THE COURT:  Would you like another 90 days?

A:  If you want to slap it on, go ahead.

THE COURT: Well, I tell you now, and you tell your buddies over at the pen, if you do not come to court when you are required, you will get 90 days tacked on to your sentence.

A: That’s fine with me, man.

THE COURT: All right. Well, then you —

A: The last thing I need is a lecture from you, you know.

THE COURT: You can have an extra 90 days.

A: Okay. That’s fine. No worries.

THE COURT: Take him out. Under 708(2).

The accused appealed from conviction.

HELD: The appeal was allowed and the conviction for contempt was set aside.  The Court of Appeal indicated that the “law is clear: a court has authority to summarily deal with contempt. However, before the court proceeds summarily, the circumstances must make it urgent and imperative to act immediately to convict and sentence a party for contempt of court, understanding that the use of a court’s contempt power ‘should be restrained by the principle that ‘only [t]he least possible power adequate to [end the contempt]’ should be used’…If a court uses the summary procedure, and in the absence of exceptional circumstances, natural justice requires that: 1) the party be cited for contempt in that the party be advised they must show cause why they should not be found in contempt; 2) the party be given an opportunity to be advised by counsel, and if they choose to be represented by counsel; and 3) if the party is found in contempt, the party must have an opportunity to make submissions as to an appropriate sentence” (at paragraphs 6 and 7).

The Court of Appeal indicated that there were “a number of concerning elements in this case” (at paragraphs 9 to 13):

The process followed by the trial judge was inquisitorial about past facts, and the facts he relied upon were based on multiple forms of hearsay. The conscriptive inquiry by the trial judge denied the witness a right to choose whether to speak: compare R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, 59 CCC (3d) 321. The approach followed was inconsistent with the entitlement of the appellant to have allegations of misconduct explained to him and once familiarized with the allegations to choose to have the misconduct proven against him.

It is not open to a trial judge to impose a guilty plea for contempt upon a witness who is merely reticent about coming to court: compare R v Wong, 2018 SCC 25 at para 3. Here, the appellant was offering some sort of explanation when his ability to do so was interrupted by the trial judge. Further, it is not open to a trial judge to truncate the opportunity of the witness to explain the alleged contempt, or to purge the alleged contempt, or to argue the alleged contempt was purged, or to speak in mitigation of the alleged contempt. As the appellant attended court and did in fact give evidence in the trial of his friend, there was a live issue whether the contempt, if it happened, was purged. The trial judge short circuited all of that.

To summarize, there were no circumstances that justified use of the summary procedure. The appellant, when called as a witness, entered the courtroom, was sworn, and testified. The appellant demonstrated no contemptuous behaviour while in the courtroom. The only issue was whether the appellant, by stating earlier in the day that he would not appear in court, was in contempt. This issue was not urgent or imperative to the proceeding itself. Further, the trial judge erred in that he did not afford the appellant any of the procedural guarantees as required.

The conviction for contempt was a miscarriage of justice.

Accordingly, we allow the appeal and quash the conviction for contempt. As the appellant has served his sentence, we stay the proceedings. We also note that on the facts of this case, a prerogative writ may have been available to the parties.