In the last episode, we discussed how codification of Canadian criminal law replaced the common law by prohibiting common law offences but with the exception for the common law offence of contempt of court. Section 10 continues this conversation by providing a mechanism for appealing this lone common law offence to the applicable provincial appellate court. This is therefore a procedural section to ensure that the common law offence, which sits outside of the Criminal Code, is nevertheless subject to the rules of fundamental justice as found in the Code. As straightforward as this section may be, there are two items of interest to point out. Section 10 (1) and (2) read as follows:
(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.
There are two contrasts in this section: first, subsection 1 speaks of “contempt committed in the face of the court,” while subsection 2 refers to contempt “not committed in the face of the court” and second, subsection 1 applies to a “court, judge, justice or provincial court judge,” while subsection 2 applies to a “court or judge.” So, what do these differences mean?
Let’s work through the second contrast first. In order to understand the different wording, we must look to the definitions of these words. Obviously, subsection (1) is broader than subsection (2) as subsection (1) not only refers to “court” and “judge” as does subsection (2), but it also applies to a “justice or provincial court judge.” As we already know from the beginning of these podcasts, section 2 of the Criminal Code is the general definitional section. According to that section, “justice” is:
justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction;
“provincial court judge” is:
a person appointed or authorized to act by or pursuant to an Act of the legislature of a province, by whatever title that person may be designated, who has the power and authority of two or more justices of the peace and includes the lawful deputy of that person.
“Judge” and “court” are not defined under s. 2 but they are general terms used throughout the Criminal Code. When the Code speaks of a specific level of court, then the specific term such as “provincial court judge” or “judge of a superior court of criminal jurisdiction,” which in Alberta would be the Court of Queen’s Bench, is used, or a specific section is referred to such as “a judge as defined in section 552.” However, once that primary designation is given, the Code may then further refer to the entity as simply a “judge.” So “judge” may be interchangeable with any level of judges, except a justice of the peace, who is referred to as “justice” and never “judge.” I would therefore suggest that the meaning of “judge” depends on the context of the section.
The context for our purposes is supplied by the other difference between these subsections, the concept of contempt committed in the face of the court and contempt not committed in the face of the court. We have, in fact, visited this issue already. You may recall in the previous episode, I discussed the differing jurisdiction between the provincial courts and the superior courts. The provincial court derives its jurisdiction from statute, which is the source of its power. Conversely, the superior courts such as the Court of Queen’s Bench of Alberta have inherent jurisdiction or intrinsic powers outside of statute, conferred through the common law. There is no exact description or even limitation of these inherent powers. Legal scholars have been singularly unable to give an all-encompassing definition of the inherent jurisdiction enjoyed by the superior courts but the procedural jurist Sir Jack Jacobs, Q.C (Senior Master of the Supreme Court – England, who was a visiting professor at Osgoode Hall Law School) comes closest in his 1970 article entitled "The Inherent Jurisdiction of the Court" wherein he mused that:
For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law is that which enables it to fulfill itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner.
Thus this inherent jurisdiction, which cannot be abrogated by the government, is, I submit, the reason the Criminal Code protects the common law contempt of court process. But it is also the uniqueness of the common law offence of contempt of court, which results in the Code exception. Common law contemptdoes have a Criminal Code equivalent in s. 708 contempt of court. But this equivalency is in name only. Section 708 is specifically limited to a witness who fails to attend or remain in court in order to give evidence. Conversely, the common law offence of contempt of court, although not specifically delineated, can be any act, which interferes “with the due administration or course of justice” as found in the 1983 Alberta Court of Appeal Vermette case, which was upheld by the SCC. There are, however, different classifications of the common law offence and that is where the concept of contempt in the face of the court and contempt not in the face of the court arise. This is also where the differences between inherent jurisdiction and inferior jurisdiction intersect with the differing kinds of common law contempt.
The SCC Vermette case helps to explain these differences. According to the decision, although the provincial court has some jurisdiction to control its own process through a common law contempt charge, this jurisdiction is limited to contemptuous acts within the four walls of the courtroom. Thus, inappropriate acts committed in the presence of the provincial court judge or “in the face” of the court could form the basis of a common law contempt charge. On the other hand, the superior courts by virtue of their ancient and essential inherent jurisdiction had the additional power to cite an individual for contempt ex facie or not in the face of the court, meaning outside of the presence of the judge. It is important to note however that even for those acts committed outside of the court’s presence, the acts must connect to the court’s process. There is no common law contempt without the court as the aggrieved party.
Looking back to section 10, we can now understand why the section refers to both categories of common law contempt to ensure a mode of appeal for both.
I would like to make one more comment on the section as it relates to a judge “summarily” convicting the accused of the common law offence. This refers to the immediacy of the procedure as the court deals with the matter as soon as the judge cites the person for the contempt. There is no formal arrest and the accused does not follow the usual paths of the criminal justice system. There is no right to a jury trial. For more information on this summary process, see the 2003 SCC Arradi case.