Supreme Court of Canada

Vaillancourt v. The Queen, [1981] 1 S.C.R. 69

Date: 1981-01-27

Serge Vaillancourt Appellant;

and

Her Majesty The Queen Respondent;

and

Evans Ward Accused.

1980: December 16; 1981: January 27.

Present: Dickson, Beetz, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC.

Criminal low—Refusal of a child to testify—Conviction for contempt of court—Juvenile Delinquents Act, R.S.C 1970, c. J-3, ss. 8, 28—Criminal Code, ss. 8, 9.

Appellant, who was then fifteen years old, was called as a witness in the trial of the accused before a judge and twelve jurors. As a result of his refusal to testify, the judge of the Superior Court, criminal side, hearing the case, sentenced him to two months’ detention. The judge had previously dismissed the preliminary objection regarding his jurisdiction ratione personae: appellant argued that he was a child within the meaning of the Juvenile Delinquents Act, and that his case could only be heard by a judge of the Youth Court. The Court of Appeal upheld the judgment: hence the appeal to this Court.

Held: The appeal should be dismissed.

It was admitted that if the refusal by the child to testify constituted a Criminal Code offence, the Youth Court had sole jurisdiction. However, in the case at bar, no charge was laid against appellant for a breach of any provision of the Criminal Code or for any other offence making him liable to be committed to an industrial school or juvenile reformatory. Appellant was not prosecuted under s. 8 of the Juvenile Delinquents Act. As he pointed out himself, the judge acted in accordance with the inherent power of the Court to impose penalties for contempt committed “in the face” of the Court. In the case at bar, the judge was exercising this power by imposing a penalty for the refusal by appellant to testify, and the power may be exercised even with respect to a witness covered by the Juvenile Delinquents Act.

Re Gerson, Re Nightingale, 1946 CanLII 16 (SCC), [1946] S.C.R. 538; R. v. Almon (1765), 97 E.R. 94; In re Johnson (1887), 20

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Q.B. 68; Morris v. The Crown Office, [1970] 1 All E.R. 1079; In the matter of Lewis Duncan, 1957 CanLII 90 (SCC), [1958] S.C.R. 41, referred to; Re B. (1976), 1976 CanLII 1338 (NWT SC), 30 C.C.C. (2d) 524, applied; Simard v. Corriveau, No. 200-38-000-003-765, judgment of the Superior Court of Quebec, unpublished, Oct. 12, 1976, applied.

APPEAL from a judgment of the Court of Appeal for Quebec, affirming a conviction for contempt of court by a judge of the Superior Court, criminal side. Appeal dismissed.

Guy Roy, for the appellant.

Paul Chevalier, for the respondent.

The judgment of the Court was delivered by

CHOUINARD J.—Appellant, who was then fifteen years old, a child within the meaning of the Juvenile Delinquent Act, R.S.C. 1970, c. J-3, was given two months’ detention for contempt of court as a result of his refusal to testify.

The question is whether the judge of the Superior Court, criminal side, could impose such a penalty or whether appellant should have been tried in the Social Welfare Court, now the Youth Court.

Counsel for the appellant submitted the following summary, which counsel for the respondent described as “scrupulously in accordance with the facts”:

[TRANSLATION] On November 22, 1976 appellant, Serge Vaillancourt, was convicted of contempt of Court by Jean Moisan, J.S.C., as a result of his refusal to answer certain questions put to him by counsel for the prosecution and the judge during his testimony in the case of Evans Ward.

Mr. Evans Ward was charged with rape and tried before a judge and twelve jurors in the district of Mingan. Appellant was called as a witness by the Crown counsel and asked to testify concerning events involving Mr. Ward. When he appeared in court, appellant answered a number of questions put by the Crown counsel. However, at some point, appellant refused to answer any more questions. In view of this situation, Jean Moisan, J.S.C. cited appellant for contempt of court and deferred the hearing on this contempt to October 28, 1976, to allow appellant to obtain counsel.

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On October 28, 1976 appellant appeared before Jean Moisan J.S.C., accompanied by his counsel, to be tried on the charge of contempt of court. At this appearance counsel for the appellant raised a preliminary objection to the honourable trial judge’s jurisdiction ratione personae. This objection was debated at length and the judgment on the objection handed down on November 22, 1976.

Finally, on November 22, 1976 the trial judge rendered judgment on the objection made by counsel for the appellant and dismissed the Iatter’s arguments regarding his jurisdiction ratione personae.

Following this dismissal appellant was convicted of contempt of court and representations were made on either side as to his sentence.

As a result of the representations on sentencing, appellant was ordered to serve two (2) months in prison, with a recommendation that this sentence be served at the Foyer Richelieu in the Town of Hauterive, an institution specializing in youth below the age of eighteen (18).

Appellant’s argument is that as he is a child within the meaning of the Juvenile Delinquents Act, his case could only be heard by a judge of the Youth Court. He maintained that his refusal to testify constitutes a criminal offence, one that is covered by the definition of juvenile delinquent. Accordingly, under s. 8(1) of the Juvenile Delinquents Act, and aside from the exception in s. 9 authorizing referral to the ordinary courts, he can only be tried before the Youth Court.

Section 2(1) of the Juvenile Delinquents Act defines juvenile delinquent as follows:

“Juvenile delinquent” means any child who violates any provision of the Criminal Code or of any federal or provincial statute, or of any by-law or ordinance of any municipality, or who is guilty of sexual immorality or any similar form of vice, or who is liable by reason of any other act to be committed to an industrial school or juvenile reformatory under any federal or provincial statute.

Respondent admitted that the Youth Court has sole jurisdiction if, as appellant maintained, his refusal to testify made him a “child who violates

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any provision of the Criminal Code…” within the meaning of this subsection, or in the French version of the same subsection “un enfant qui commet une infraction à quelqu’une des dispositions du Code criminel…”.

However, respondent submitted that appellant’s sentence did not result from a conviction for a Criminal Code offence, or any other offence, but from the inherent power of the Court [TRANSLATION] “to punish any action likely to detract from the respect due to the Court or interfere with the administration of justice”.

The power enjoyed by a court at common law to impose a penalty for contempt of court was preserved when, in 1953-54, the Criminal Code was amended to abolish common law offences. It is contained in s. 8 Cr. C., which reads as follows:

8. Notwithstanding anything in this Act or any other Act no person shall be convicted

(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 a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before the 1st day of April 1955, to impose punishment for contempt of court.

As the trial judge observed:

[TRANSLATION] The first point to be noted from reading this section is that the legislator makes a very clear distinction between an offence contained in the Criminal Code or in an Act or ordinance in force, and the power, jurisdiction or authority of a Court to impose a penalty for contempt of court. He has accordingly created a very clear distinction between offences and crimes on the one hand, and the power to impose a penalty for contempt of court on the other.

There is no question that the refusal to be sworn or testify constitutes a contempt of court committed “in the face” of the Court according to the

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wording of the Criminal Code (s. 9). See Re Gerson, Re Nightingale[^1].

There is no question in the case at bar that the contempt of court was committed “in the face” of the Court.

It is possible that appellant could have been charged with disobeying an order of the Court under s. 116 Cr.C., or with obstructing justice under s. 127, and that in such a case only the Youth Court would have had jurisdiction, in accordance with the Juvenile Delinquents Act. However, it is not necessary to decide this point because that is not the case.

No charge was laid against appellant for a breach of any provision of the Criminal Code or of any federal or provincial statute, or of any by-law or ordinance of any municipality,… or for any other offence making him liable to be committed to an industrial school or juvenile reformatory. Appellant was not prosecuted under s. 8 of the Juvenile Delinquents Act. As he pointed out himself, the judge hearing the case at bar acted in accordance with the inherent power of the Court to impose penalties for contempt committed “in the face” of the Court.

In Re Gerson, Re Nightingale, supra, Kerwin J., as he then was, commenting on ss. 165 and 180 Cr. C., now ss. 116 and 127 respectively, said for the Court at p. 549:

The argument on this point was that the applicant could be prosecuted under either of these sections and that these proceedings being available the right of the Court to punish for a contempt had been abrogated. Without deciding whether either of these sections would apply in the circumstances, we are of opinion that even if that were so it is a necessary incident to every superior Court of justice to imprison for a contempt of Court committed in the face of it.

This inherent power has been recognized for

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several hundred years. In R. v. Almon[^2], Wilmot J. expressed the following opinion at p. 99:

The power which the Courts in Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it, 1 Vent. 1. And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempts out of Court, stands upon the same immemorial usage as supports the whole fabrik of the common law; it is as much as the “lex terrae”, and within the exception of Magna Charta, as the issuing any other legal process whatsoever.

In In re Johnson[^3], Bowen J. of the British Court of Queen’s Bench observed at p. 74:

The law has armed the High Court of Justice with power and imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice.

In Morris v. The Crown Office[^4], Lord Denning noted at p. 1081:

The phrase “contempt in the face of the Court” has a quaint old-fashioned ring about it: but the importance of it, is this: of all places where law and order must be maintained, it is here, in these courts. The course of Justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power—a power instantly to imprison a person without a trial—but it is a necessary power. So necessary indeed that until recently the judges exercised it without any appeal.

In In the matter of Lewis Duncan[^5], Kerwin C.J., speaking for the Court, said at p. 43:

The objection taken by Mr. Duncan to our jurisdiction to cite him for contempt has no foundation. By the provisions of the Supreme Court Act, R.S.C. 1952, c. 529, this Court is a common law and equity Court of record and its power to cite and, in proper circumstances, find a barrister guilty of contempt of Court for words uttered in its presence is beyond question. That

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power has been exercised for many years and it is not necessary that steps be taken immediately.

And Kerwin C.J. cited the 3^rd edition of Halsbury, vol.8 (1954), at p. 5:

The power to fine and imprison for a contempt committed in the face of the Court is a necessary incident to every court of justice.

The Court was referred to two Canadian cases, in which the power to impose penalties for contempt of court, namely the refusal to testify, was admitted even with respect to a witness covered by the Juvenile Delinquents Act.

The first case is that of Daniel Simard v. M. le juge Anatole Corriveau et al., No. 200‑38‑000‑003-765, from the Superior Court of Quebec, decided on October 12, 1976. It concerned an application for certiorari against a decision of a judge of the Court of Sessions of the Peace who, acting as a justice and presiding over a preliminary inquiry, sentenced applicant to seven days in prison for refusing to testify. Dismissing the application, Roberge J. of the Superior Court said, inter alia:

[TRANSLATION] AS mentioned above, a judge at a preliminary inquiry has powers to impose punishment, when necessary, and it matters little whether the recalcitrant witness is a minor or not; to hold the contrary would be to decide in favour of chaos in the administration of justice.

The other case is Re B.[^6] from which I reproduce the headnote:

The refusal of a witness to testify after having been sworn may constitute contempt of Court and a superior Court of record has inherent power to commit such a person for contempt. Where the witness is a juvenile the fact that the act of refusing to testify may also constitute an offence under the Criminal Code which, pursuant to s. 4 of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, must be tried by a Judge of the juvenile Court does not abrogate from the superior Court’s jurisdiction, which is preserved by s. 8 of the Criminal Code, to punish the witness for contempt and the Judge of the superior Court may so deal with the contempt if he prefers.

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My conclusion is the same. The judge in the case at bar had the power to impose a penalty for contempt committed “in the face” of the Court, namely appellant’s refusal to testify.

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Hamel, Bernatchez & Associates, Quebec.

Solicitor for the respondent: Paul Chevalier, Sept-Îles.

[^1]: 1946 CanLII 16 (SCC), [1946] S.C.R. 538.

[^2]: (1765), 97 E.R. 94.

[^3]: (1887), 20 Q.B. 68.

[^4]: [1970] 1 All E.R. 1079.

[^5]: 1957 CanLII 90 (SCC), [1958] S.C.R. 41.

[^6]: (1976), 1976 CanLII 1338 (NWT SC), 30 C.C.C. (2d) 524.