R. v. McClintock, 2024 ONCJ 688

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 04 05 COURT FILE No.: NORFOLK COUNTY 22 047

B E T W E E N :

HIS MAJESTY THE KING

— AND —

VIVIAN MCCLINTOCK

Before: Justice of the Peace KW Bouchard Heard on: 3 April 2024 Reasons for Contempt Citation released on: 5 April 2024

Counsel: T. Hoogesteen ..................................................................................... counsel for the Crown The defendant V. McClintock ................................................................... on her own behalf

Reasons for Contempt Citation

JUSTICE OF THE PEACE BOUCHARD:

Overview

1The defendant, Vivian McClintock (VM), appeared before this court in Norfolk County on 3 April 2024. The purpose of the appearance was to proceed with a trial of a Part III information 22 047 with a single count under s.10(1) of the Reopening Ontario Act. For the enclosed reasons the court was unable to complete the arraignment of VM, and was forced to adjourn the trial sine die, with an arrest warrant issued for VM for direct contempt in the face of the court pursuant to s.91 of the Provincial Offences Act (POA).

2VM chose to appear by zoom, on video, as the mode of appearance for trial. The court approved of this mode of appearance and proceeded to conduct a pre-trial inquiry with VM and the Crown’s representative on preparedness to commence a self-represented trial. The court intended to confirm that disclosure had been received, that the time estimate for the trial, for 1 hour, was accurate, and that VM felt prepared to proceed to trial. As will become clear in these reasons the court was unable to receive answers to any of these questions when posed.

The Defendant's Conduct

3Unfortunately, very early on it became apparent that VM had no intention to cooperate within the norms for proper court decorum, nor the rules of civility explained by this court. VM refused to give her full legal name when requested, instead insisting to refer to herself only by her first given name. VM then proceeded to utter language reminiscent of OPCA litigants. The court became concerned with this posture and clearly articulated two rules for VM, first she was to remain civil and polite and not interrupt the court at anytime; second VM was to answer the courts questions when questions were posed and not respond with her own questions in lieu of a proper response. Unfortunately, again VM deliberately chose not to follow these instructions and instead voiced objections that questioned the ability of the court to issue such instructions, and whether the court was operating in a prosecutorial function.

4The court exercised its discretion and attempted on numerous occasions, as the transcript will show, to deescalate the inappropriate behaviour. VM was provided with several verbal warnings that her continued contemptuous behaviour could result in a citation for contempt under the POA. Further VM was directly warned that the court had authority to cite her for direct contempt in the face of the court, with potential fines of $1000 and 30 days in jail or both. Once again, these warnings were unheeded.

5The court directly ordered VM to answer several specific questions for which she subsequently refused. The court suspected that there were other individuals present in the same residence as VM who were sending messages electronically and speaking to VM in the room based on her observed behaviour. When the court required her to pivot her camera to review the room she refused with no explanation. When the court required her to confirm where she was located, she refused with no explanation.

6Ultimately the court gave a final clear warning to VM that this was her last opportunity to correct her behaviour. She was to return to civility and answer the courts questions. She was warned that the court was prepared to issue an arrest warrant for contempt. She again refused and launched into further OPCA style responses.

Jurisdiction and Authority

7The court is satisfied that it had authority to issue an arrest warrant for direct contempt for a participant on zoom for the following reasons. First this court has common law authority to control its processes and residual common law authority to cite for contempt as an inferior court. Further, this court has statutory authority pursuant to s.91(3) of the POA to cite for direct contempt. VM was in direct presence of the court, despite appearing remotely over zoom. The court had no reasonable grounds to believe, based on her behaviour, that she would honour a summons to appear for a contempt citation. Further despite being on zoom, and not in the body of the court, the intent of POA s.91(6) cannot be limited to only those circumstances where a defendant appears in persona. This would be contradictory to the evolution of the court where video proceedings are now the norm. The court therefore must have authority to arrest for contempt for video participants as well as those appearing in the courtroom.

Disposition

8The court decided to cite VM for direct contempt in the face of the court, with these written reasons to provide further explanation of the nature of the inappropriate and contemptuous behaviour recorded on the audio recording. The court decided that it was unnecessary to commence contempt proceedings on 3 April 2024 for two reasons. First, the POA under s.91(4), clearly outlines that a Justice of the Peace presiding shall adjourn the contempt proceedings if they believe it is not necessary to commence proceedings immediately to retain order and control of their court. Second, from the perspective of procedural fairness it would be beneficial for VM to have her contempt citation heard and adjudged by a provincial court judge presiding after her arrest pursuant to s.91(5). It is possible that time, reflection, and the shock of arrest may help adjust VM’s perspective on the authority of the court. VM can then be given an opportunity to purge the contempt in a manner deemed appropriate by that honourable court.

9This court has signed a s.24 arrest warrant for VM for these reasons. She is ordered to show cause for direct contempt pursuant to s.91 of the POA, she shall appear before a provincial court judge at a date to be fixed by this court subsequent to her arrest.

10The trial of information 22 047 was adjourned sine die to await the resolution of the contempt proceedings.