Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Royal, 2022 ABCA 330, October 11, 2022, “a practicing barrister, had an exchange with a Provincial Court Judge over the wearing of masks in court during the Covid pandemic. The Provincial Court Judge directed that the appellant show cause why he should not be found in contempt…The contempt hearing was held by another Provincial Court Judge who found that the appellant had been in contempt”.

On appeal, the Alberta Court of Appeal held that the second Provincial Court Judge did not have jurisdiction to hear the contempt proceeding (at paragraphs 3):

A similar situation arose in R. v Doz, 1987 CanLII 32 (SCC), [1987] 2 SCR 463, reversing (1985), 1985 ABCA 71 (CanLII), 37 Alta LR (2nd) 253, 59 AR 185, where the Supreme Court ruled:

BEETZ J. (orally)

1   We are all of the view that the Provincial Court Judge had no jurisdiction to entertain a proceeding for contempt before another judge.

2  The appeal is allowed, the judgment of the Alberta Court of Appeal is set aside and the conviction entered by the trial judge is quashed.

This binding authority, which was not brought to the attention of the Provincial Court Judges, confirms that the second Provincial Court Judge proceeded without jurisdiction.

The contempt proceeding had been “taken charge” of by the Crown.  The Court of Appeal suggested that the Crown should have referred the matter to the Superior Court.

Questions?  What if the Crown had not intervened?  Would the judge who had the “exchange” with counsel have to conduct the proceeding? How would a PCJ have the matter transferred to a Superior Court?

In R. v. Lavallee, 2022 MBCA 79, October 6, 2022, a witness failed to appear in court.  She was found to be in contempt and sentenced to a period of ten months of imprisonment.  Her appeal from conviction was dismissed.

The Manitoba Court of Appeal indicated that a “number of safeguards to prevent a misuse of criminal contempt powers exist.  The alleged contemnor is entitled to fair notice of the alleged contempt, time to answer the allegation with the assistance of counsel (absent the need for immediate action because 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 an independent and impartial tribunal, and to be presumed innocent until proven guilty beyond a reasonable doubt” (at paragraph 12).

The accused pleaded guilty to contempt, but argued that she had “purged” the contempt by apologizing.   The Court of Appeal noted that “the concept of purging one’s contempt is ‘rooted in quasi-religious concepts of purification, expiation and atonement’…While a lot of attention was paid to this idea in this case and to civil cases which discuss ‘purging’, we would emphasize that, in a criminal contempt proceeding, it is fundamental not to lose focus on the key attribute of the offence of criminal contempt:  ‘the element of public defiance”’ (at paragraph 16).

The Court of Appeal also noted that the “jurisprudence is rich with instances where, as the law requires, a person is given the opportunity to answer for their potentially 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…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” (at paragraphs 17 and 18).

In this case, in dismissing the appeal from conviction, the Court of Appeal indicated that the “significance of the contemnor’s guilty plea at the commencement of the criminal contempt hearing cannot be understated.  In our view, for the trial judge, it ended any debate as to whether he should make a finding of criminal contempt…In light of the guilty plea, the trial judge was entitled to consider the contemnor’s motivation for not attending court which he said was “only relevant” for the purpose of sentencing to assess her moral culpability” (at paragraphs 13 and 14).