R. v. K. (B.), [1995] 4 S.C.R. 186

B.K. Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. K. (B.)

File No.: 24357.

1995: October 3; 1995: November 16.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for saskatchewan

Criminal law ‑‑ Contempt of court ‑‑ Summary process ‑‑ Appellant subpoenaed as Crown witness at preliminary inquiry ‑‑ Appellant insolent and abusive toward presiding judge while refusing to be sworn ‑‑ Appellant convicted of contempt of court instanter ‑‑ Whether circumstances of demonstrable necessity justified preliminary inquiry judge's decision to convict and sentence appellant without a hearing and without providing reasonable opportunity to retain and consult counsel.

The appellant was subpoenaed as a Crown witness to a preliminary inquiry involving a charge of attempted murder against two accused. He attended but refused to be sworn and was insolent and abusive toward the presiding judge. The judge convicted him of contempt of court instanter, with no notice or show cause hearing and no reasonable opportunity for him to speak with a lawyer. As a result of the appellant's refusal to testify and the victim's failure to appear to give evidence, the presiding judge discharged both accused. The Court of Appeal dismissed the appellant's appeal against conviction. It appeared to be of the opinion that the judge was justified in using the instanter contempt procedure in order to maintain jurisdiction over the appellant, since once the appellant refused to testify, the judge had no choice but to bring the preliminary inquiry to an end and therefore could not adjourn it and bring the appellant back at some later time to deal with the contempt issue.

Held (Major J. dissenting): The appeal should be allowed and the conviction for contempt quashed.

Per Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The ability of a judge to forego the formal trappings of a criminal trial and summarily punish for contempt has been recognized by this Court on a number of occasions and has received Parliamentary approval in s. 10 of the Criminal Code. The notion of citing in contempt should be used not as an expression of a finding of contempt but rather as a method of providing the accused with notice that he or she has been contemptuous and will be required to show cause why he or she should not be held in contempt. The instanter summary procedure was not justified in this case, since there were no circumstances which made it urgent and imperative to act immediately to convict and sentence the appellant instantly for contempt of court. A court's exercise of its contempt power should be restrained by the principle that only the least possible power adequate to the end proposed should be used. The preliminary inquiry judge was not operating under s. 545 of the Code, which enables a judge to adjourn the inquiry and commit the recalcitrant witness, but under s. 484, which provides a judge with "the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction". It was not the refusal to testify that the judge was dealing with in finding the appellant guilty of contempt but rather the manner in which he behaved when called as a witness. While the presiding judge was amply justified in initiating the summary contempt procedures, there was no justification for foregoing the usual steps, required by natural justice, of putting the witness on notice that he must show cause why he would not be found in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he chooses, to be represented by counsel. In addition, upon a finding of contempt there should be an opportunity to have representations made as to what would be an appropriate sentence. This was not done and there was no need to forego all of these steps.

Per Major J. (dissenting): While there must be an urgent and imperative need to treat the contempt instanter, the words "urgent" and "imperative" should be given a contextual meaning, to allow for their application in varying circumstances. The nature of the loutish and obscene behaviour of the appellant in this case demanded immediate response. While the safeguards of notice and the opportunity to speak to a lawyer occupy an important place in our jurisprudence, the deliberate and calculated conduct of the appellant makes it apparent that they would have served no purpose in this case. The preliminary inquiry judge, who was in the best position to determine the steps necessary to maintain order in the courtroom and preserve the dignity of the judicial system, decided to use the instanter procedure. The situation made it imperative to act immediately. The judge obviously concluded that the procedural steps normally required by natural justice would not be of any benefit in the situation he faced. That his decision was correct is supported by the fact that the appellant continued his disruptive behaviour during and after the finding of contempt, until he was removed.

Cases Cited

By Lamer C.J.

Referred to: Morris v. Crown Office, [1970] 1 All E.R. 1079; Sacher v. United States, 343 U.S. 1 (1952); Bloom v. Illinois, 391 U.S. 194 (1968); Baldwin v. New York, 399 U.S. 66 (1970); R. v. Vermette, 1987 CanLII 51 (SCC), [1987] 1 S.C.R. 577; Paul v. The Queen, 1980 CanLII 37 (SCC), [1980] 2 S.C.R. 169; United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901; B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214; Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; Reference re Milgaard, 1992 CanLII 97 (SCC), [1992] 1 S.C.R. 875; R. v. Martin (1985), 1985 CanLII 3618 (ON CA), 19 C.C.C. (3d) 248; R. v. Jolly (1990), 1990 CanLII 11052 (BC CA), 57 C.C.C. (3d) 389; Illinois v. Allen, 397 U.S. 337 (1970); United States v. Wilson, 421 U.S. 309 (1975).

By Major J. (dissenting)

Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283.

Statutes and Regulations Cited

Contempt of Court Act 1981 (U.K.), 1981, c. 49, s. 12.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 9 [rep. & sub. c. 27 (1st Supp.), s. 6], 10 [am. c. 27 (1st Supp.), s. 203], 484, 545.

Federal Rules of Criminal Procedure, Rule 42(a).

18 U.S.C. § 401.

Authors Cited

Black's Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990.

Borrie and Lowe's Law of Contempt, 2nd ed. By Nigel Lowe. Consultant editor, Sir Gordon Borrie. London: Butterworths, 1983.

Miller, C. J. Contempt of Court, 2nd ed. Oxford: Clarendon Press, 1989.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1994), 1994 CanLII 4634 (SK CA), 125 Sask. R. 183, 81 W.A.C. 183, dismissing the accused's appeal from his conviction for contempt of court. Appeal allowed and conviction quashed, Major J. dissenting.

R. Peter MacKinnon, Q.C., and E. Scott Hopley, for the appellant.

Graeme G. Mitchell and Sandra Folkins, for the respondent.

The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by

I. Lamer C.J.

The sole issue raised in this appeal is whether there existed circumstances of demonstrable necessity justifying the preliminary inquiry judge's decision to convict and sentence instanter the appellant of contempt of court in the absence of a hearing and without providing a reasonable opportunity for the appellant to retain and consult counsel. The broader issue of whether the common law rule which permits a judge to act in such a manner is constitutionally infirm does not arise on the facts of this case and was not raised by the appellant in oral argument. I therefore leave it for another day.

I. Factual Background

II. The appellant was subpoenaed as a Crown witness to a preliminary inquiry involving a charge of attempted murder against two other accused. The victim was also subpoenaed but failed to attend the preliminary inquiry. The appellant attended the preliminary inquiry but refused to be sworn as a witness. In expressing his refusal to testify, the appellant was insolent and abusive towards the presiding judge as the following transcript of events reflects:

CLERK: Mr. K., do you want to step into the witness box, please.

B.K.: Okay.

CLERK: You have to stand up to be sworn.

B.K.: Oh, fuck.

CLERK: Please take the Bible in your right hand. Please state your full name for the Court.

B.K.: B.C.K.

CLERK: Spell your last name.

B.K.: K.

CLERK: Do you swear that the evidence you shall give touching the matters in question shall be the truth, the whole truth, and nothing but the truth so help you God?

B.K.: Fuck it, man, I ain't testifying.

COURT: I'm sorry, I didn't hear you.

B.K.: I ain't testifying, man. Fucking charge me. Whatever you fucking want, man. I ain't testifying.

III. According to the presiding judge, in his report to the Saskatchewan Court of Appeal, the appellant then threw the Bible on the floor immediately in front of the witness box, sat down in the box, sat back, crossed his arms and put his foot up on the railing of the witness box. Following this behaviour, the judge stated:

COURT: I find you guilty of contempt of in the face of this Court.

B.K.: Up yours, you dick.

COURT: And I sentence you to a period of incarceration of six months consecutive to any --

B.K.: Fuck you, you goof.

COURT: ...time now being served.

B.K.: Goof.

COURT: Get him out of here.

B.K.: Fucking goof.

FIELD: I think that my case has not been advanced much by that witness's attendance.

COURT: That would seem to be the case.

FIELD: And I have no further evidence to call.

COURT: All right. Do you wish to address any argument?

NO AUDIBLE RESPONSE

COURT: With respect to this Information 1870787 I hereby discharge both accused.

COURT: Incidentally, for the record, he's not fit to be brought in to -- to indicate that it's closed custody by reason of his attitude, so it's not appropriate for him to be in court.

IV. As the transcript reveals the judge convicted the appellant of contempt of court instanter, that is, the conviction and sentence were instantaneous. There was no notice provided or a show cause hearing and no reasonable opportunity for the appellant to speak with a lawyer. As a result of the appellant's refusal to testify and the victim's failure to appear to give evidence, the presiding judge discharged both accused.

V. The appellant appealed his conviction and sentence to the Saskatchewan Court of Appeal. On September 6, 1994, Lane J.A. for the Court of Appeal dismissed the appeal against conviction and allowed the appeal against sentence, reducing it to three months: (1994), 1994 CanLII 4634 (SK CA), 125 Sask. R. 183, 81 W.A.C. 183. The appellant appeals his conviction to this Court.

II. Decisions Below

Saskatchewan Provincial Court (November 3, 1993)

VI. In an endorsement, Nutting J. wrote:

The witness [B.K.] is called to testify and refuses. This Court finds him in contempt [and] sentences this youth to six (6) months -- closed custody -- consecutive to any time presently serving.

Saskatchewan Court of Appeal (1994), 1994 CanLII 4634 (SK CA), 125 Sask. R. 183

VII. In dismissing the appellant's appeal, the Saskatchewan Court of Appeal appeared to be of the opinion that the judge was justified in using the instanter contempt procedure in order to maintain jurisdiction over the appellant. According to the court, once the appellant refused to testify, the judge had no choice but to bring the preliminary inquiry to an end. He therefore could not adjourn it and bring the appellant back at some later time to deal with the contempt issue. Lane J.A., for the court, held (at pp. 184-85):

The Provincial Court judge did not use the procedures established by s. 545 of the Criminal Code and we find no error in his not doing so. Once the accused refused to testify and the victim refused to attend the preliminary inquiry, the Crown had no case. In these circumstances with the accused already incarcerated, adjourning the preliminary inquiry and imprisoning the accused would not likely have served any purpose. The judge had no choice but to end the inquiry and could not adjourn it to bring the accused back at some later date as set out in that provision. As well, the accused was already incarcerated. We see no error in principle and recognize there may be exceptional circumstances requiring the judge to act to protect the dignity and authority of the court. See R. v. Cohn (1985), 1984 CanLII 43 (ON CA), 4 O.A.C. 293; 15 C.C.C. (3d) 150 (C.A.), at pp. 176-7 and R. v. Winter (1986), 1986 ABCA 173, 72 A.R. 164; 46 Alta. L.R. (2d) 393, wherein the Alberta Court of Appeal adopts the comments of Goodman J.A.... [Emphasis added.]

III. Analysis

(a) The Summary Nature of the Contempt Process

VIII. The ability of a judge to forego the formal trappings of a criminal trial and summarily, and in some cases instantly, punish for contempt is a power that is recognized in England (see Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.); C. J. Miller, Contempt of Court (2nd ed. 1989), at pp. 45-96, and s. 12 of the Contempt of Court Act 1981 (U.K.), 1981, c. 49) and for "petty" contempt offences in the United States (see Sacher v. United States, 343 U.S. 1 (1952); Bloom v. Illinois, 391 U.S. 194 (1968); Rule 42(a) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 401. According to Baldwin v. New York, 399 U.S. 66 (1970), at p. 69, a "petty" offence is one with a maximum punishment of six months' imprisonment.)

IX. On a number of occasions, this Court has also recognized the summary nature of the contempt process. (See R. v. Vermette, 1987 CanLII 51 (SCC), [1987] 1 S.C.R. 577, at pp. 582-83, and Paul v. The Queen, 1980 CanLII 37 (SCC), [1980] 2 S.C.R. 169.) In United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 924, Cory J. and I held, in dissent but not on this point, "[a] criminal contempt hearing is held as a summary proceeding" (emphasis added). In B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, at p. 238, Dickson C.J., speaking for the majority (reasons in which I concurred), approved of the following comments of Lord Denning in Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283 (C.A.), at pp. 287-88:

Gathering together the experience of the past, then whatever expression is used, a judge of one of the superior courts or a judge of assize could always punish summarily of his own motion for contempt of court whenever there was a gross interference with the court of justice in a case that was being tried, or about to be tried, or just over -- no matter whether the judge saw it with his own eyes or it was reported to him by the officers of the court, or by others -- whenever it was urgent and imperative to act at once.

This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately -- so as to maintain the authority of the court -- to prevent disorder -- to enable witnesses to be free from fear -- and jurors from being improperly influenced -- and the like. It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt.... But properly exercised, it is a power of the utmost value and importance which should not be curtailed. [Emphasis added.]

So too Parliament has approved of the summary procedure by virtue of enacting s. 10 of the Criminal Code, R.S.C., 1985, c. C-46. Section 10 states:

10. (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed.

(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed. [Emphasis added.]

(b) The Terminology of Contempt: Citation, Conviction and Punishment

X. It is perhaps important at the outset to clarify the terminology that is sometimes used in contempt cases to describe what is being done by the judge in exercising his or her contempt power. This power is commonly expressed, in the English and American jurisprudence and s. 9 of the Criminal Code, as the judge's power to punish for contempt. (See Borrie and Lowe's Law of Contempt (2nd ed. 1983), at p. 314, and Bloom v. Illinois, supra, at pp. 202-4.) What has emerged in the cases is a host of expressions to describe the process by which a judge arrives at the punishment stage. For example, it is not uncommon to see references to "cite", "hold" or "find". A commonly used phrase in the American and Canadian cases is "cite" or "citation" for contempt. This Court has also used that expression in several cases including Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 862, wherein I stated, in the context of third party appeals to this Court:

Some concern was voiced that this appeal could lead to appeals brought directly to this Court by witnesses at criminal trials. There is no need for such concern. The problem for a witness most frequently arises out of a citation for contempt for refusal to testify. It is true that pursuant to s. 9 of the Criminal Code a judge may cite persons, including witnesses, for contempt of court. Yet s. 10 of the Code sets out the procedure for bringing a conviction for contempt before a court of appeal. [Emphasis added.]

XI. In order to simplify matters, it is my opinion that we should use the notion of citing in contempt, not as an expression of a finding of contempt but instead, as a method of providing the accused with notice that he or she has been contemptuous and will be required to show cause why they should not be held in contempt. This is what I meant in Dagenais when I used the words "citation" and "cite". I did not intend them to be equated with a conviction. Indeed, in the French version these words are expressed as "assignation" and "assigner ... à comparaître". These terms, which in the French language call to mind the notion of a subpoena, indicate that the effect of a citation or "assignation" is to require the person to appear in court. This is also consistent with what occurred in Reference re Milgaard, 1992 CanLII 97 (SCC), [1992] 1 S.C.R. 875, wherein we cited a witness in contempt but later stayed the matter where it was no longer necessary to deal summarily with the witness's conduct under oath.

XII. Support for this view to equate a citation with notification comes from the definition of "cite" and "citation" in Black's Law Dictionary (6th ed. 1990), at pp. 243-44. "Citation" is defined as:

A writ issued out of a court of competent jurisdiction, commanding a person therein named to appear on a day named and do something therein mentioned, or show cause why he should not. [Emphasis added.]

while "cite" is defined as:

To summon; to command the presence of a person; to notify a person of legal proceedings against him and require his appearance thereto.

So too, it appears that in a number of Canadian jurisdictions, judges issue a citation or cite for contempt prior to holding a hearing for notification purposes. (See for example R. v. Martin (1985), 1985 CanLII 3618 (ON CA), 19 C.C.C. (3d) 248 (Ont. C.A.), at p. 251, and R. v. Jolly (1990), 1990 CanLII 11052 (BC CA), 57 C.C.C. (3d) 389 (B.C.C.A.).) This is also consistent with the American approach (Illinois v. Allen, 397 U.S. 337 (1970), at pp. 344-45).

(c) Was the "Instanter" Summary Procedure Justified in This Case?

XIII. The narrow issue raised by the appellant in this case is whether, to quote Lord Denning in Balogh, supra, at pp. 287-88, there existed circumstances which made it "urgent and imperative to act immediately" to convict and sentence the appellant instantly for contempt of court. In answering this question, I am guided by the wisdom of Burger C.J. in United States v. Wilson, 421 U.S. 309 (1975), at p. 319, who held that a court's exercise of its contempt power should be restrained by the principle that "only `[t]he least possible power adequate to the end proposed' should be used ...".

XIV. In this case, the Court of Appeal was of the view that matters were being dealt with under s. 545 of the Criminal Code, which enables a judge to adjourn the inquiry and commit the recalcitrant witness; and that since the justice was choosing to discharge the accused, he was justified in proceeding "instanter" because his jurisdiction over the witness would be spent. However, the inquiring justice was clearly not operating under that section of the Code but rather under s. 484 of the Code, which provides a judge or provincial court judge with "the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction ...". It was not the refusal to testify that the judge was dealing with in finding the appellant guilty of contempt but rather the manner in which he behaved when called as a witness.

XV. There is no doubt in my mind that he was amply justified in initiating the summary contempt procedures. I, however, find no justification for foregoing the usual steps, required by natural justice, of putting the witness on notice that he or she must show cause why they would not be found in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to be represented by counsel. In addition, upon a finding of contempt there should be an opportunity to have representations made as to what would be an appropriate sentence. This was not done and there was no need to forego all of these steps.

XVI. Having concluded that the instanter procedure was not justified in the circumstances of this case, it is my further opinion that there may be some exceptional cases, involving misbehaviour in court, where the failure to take one or all of the steps I have outlined above will be justified subject to whatever qualifications might be warranted in the context of a Charter challenge to instanter proceedings.

IV. Disposition

XVII. I am of the view that the appeal should be allowed and the conviction for contempt quashed. In light of the facts presented in this case I would normally order a hearing. However, the appellant has served his sentence and therefore I will comply with the request made by both the appellant and respondent and stay the proceedings.

The following are the reasons delivered by

XVIII. Major J. (dissenting) -- I agree with the reasons of the Chief Justice that the Saskatchewan Court of Appeal erred in holding that the jurisdiction for an immediate conviction and sentence for contempt of court was that the preliminary inquiry judge's jurisdiction to deal with the question of contempt would terminate at the conclusion of the preliminary. As the Chief Justice points out the jurisdiction of the Provincial Court judge in dealing with contempt was derived from s. 484 and not s. 545 of the Criminal Code, R.S.C., 1985, c. C-46, and would continue beyond the conclusion of the preliminary hearing. I agree as well with his outline of the procedure to be followed in the usual case of contempt.

XIX. The Chief Justice confirms the jurisdiction of courts, in certain circumstances, to treat the contempt "instanter" but concludes that, by the test enunciated in Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283, there must be an urgent and imperative need to do so. He concluded that here those ingredients were missing. It is with that conclusion that I disagree. The words urgent and imperative should be given a contextual meaning, to allow for their application in varying circumstances. The range of conduct giving rise to contempt may be as high as civil insurrection or more modestly bringing the administration of justice at a preliminary hearing into disrepute and thwarting its objectives as was the case in this appeal.

XX. The facts giving rise to the finding of contempt are set out in the reasons of the Chief Justice. The nature of the loutish and obscene behaviour of the accused demanded immediate response. It is idle in my opinion to speak of the need to provide the accused in this case with notice of possible contempt proceedings or to afford him the opportunity to speak to a lawyer.

XXI. While these safeguards occupy an important place in our jurisprudence the deliberate and calculated conduct of the accused makes it apparent that they would have served no purpose in this case.

XXII. A review of the facts amply demonstrates the absence of a single mitigating circumstance. This was not an occasion where a citizen was caught in the machinery of the state and provoked or scared into inappropriate conduct in court.

XXIII. The accused in this case was a young offender with a record of past offences. It is apparent that his abusive, vulgar and sustained response to the presiding judge was deliberate and premeditated. It was conduct contemptuous of the court and the administration of justice.

XXIV. The preliminary inquiry judge, who was in the best position to determine the steps necessary to maintain order in the courtroom and preserve the dignity of the judicial system, decided to use the instanter procedure. The situation as described made it imperative to act immediately. The judge obviously concluded that the procedural steps normally required by natural justice would not be of any benefit in the situation he faced. That his decision was correct is supported by the fact that the appellant continued his disruptive behaviour during and after the finding of contempt, until he was removed.

XXV. In my opinion the requirement of deterrence, public opprobrium and rehabilitation are factors to be considered in the penalty for contempt and the failure of the presiding judge to act as he did would have diminished all three.

XXVI. I agree with the caution expressed by Lord Denning in Balogh that the power of summary punishment is a great but necessary one that is to be used with scrupulous care. I am confident that the judiciary in Canada appreciate that requirement and in those instances where it is ignored there are remedies to correct it.

XXVII. For the foregoing reasons, I would dismiss the appeal and uphold the conviction for contempt of court.

Appeal allowed and conviction for contempt quashed, Major J. dissenting.

Solicitors for the appellant: Hnatyshyn Singer, Saskatoon.

Solicitor for the respondent: W. Brent Cotter, Regina.