Supreme Court Judgments

Supreme Court of Canada

McKeown v. The Queen, [1971] S.C.R. 446

Date: 1971-02-01

C. G. Stewart Mckeown Appellant;

and

Her Majesty he Queen Respondent.

1970: November 19; 1971: February 1.

Present: Fauteux C.J. and Martland, Judson, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Contempt of Court—Failure of counsel to appear for client charged as an habitual criminal—Summary conviction for contempt of Court—Whether contempt in face of Court or not—Whether appeal lies—Criminal Code, 1953-54 (Can.), c. 51, s. 9.

The appellant, who had failed to appear as counsel for a client charged as an habitual criminal, was directed by the judge to appear before him to show cause why he should not be held in contempt of Court. The judge called and examined witnesses, cross-examined witnesses for the appellant and also acted upon his own asserted knowledge of facts bearing on the citation for contempt. The judge found the appellant guilty of contempt in the face of the Court. An appeal was taken from the conviction to the Ontario Court of Appeal which quashed the appeal. Pursuant to leave granted by this Court, the appellant appealed from the judgment of the Court of Appeal.

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Held (Spence and Laskin JJ., dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Martland and Judson JJ.: There was evidence upon which the trial judge's finding that the contempt of Court was committed in the face of the Court could properly be made, and under s. 9(1) of the Criminal Code there was an appeal only against the punishment imposed, and not against the conviction itself. The appellant appealed only against the conviction. That being so, the Court of Appeal was right in quashing the appeal.

Per Spence J., dissenting: The appellant in the charge had a right to have his guilt shown beyond reasonable doubt. It had to be proved as against him not only that he did not appear at the time and place set by the trial judge's order but that he did not appear without justifiable excuse. Therefore, before the appellant could have been convicted there were circumstances which had to be proved which were not in the presence of the Court and which were not to the knowledge of the Court. Hence the contempt was not a contempt "in the face of the court" within the meaning of those words as used in s. 9 of the Criminal Code and, therefore, an appeal lay to the Court of Appeal for Ontario as to both conviction and sentence.

When a contempt is "in the face of the court", in most cases it cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the contempt was committed. When, however, the contempt is not "in the face of the court" then it can be dealt with subsequently before any other tribunal, the attorney general or his representative representing the interests of the state in the administration of justice with the accused being permitted all the protections of an ordinary trial for an ordinary offence.

The latter procedure would have avoided the trial judge unnecessarily placing himself in the most invidious position of being an accuser, what amounted to a witness, and also a judge. The Court of Appeal should have referred the matter to the Attorney General for Ontario in order that he might consider the taking of proceedings by way of indictment for the alleged contempt.

Per Laskin J., dissenting: The quality of a criminal contempt, which had historically been an indictable offence, and as well one that could be prosecuted by criminal information, was not changed by the development and general use of the summary

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procedures of committal and attachment. Although resort to indictment and criminal information became infrequent, these procedures remained, and indictment was still available in this country for the trial of criminal contempts (Criminal Code, ss. 8, 108). It followed that no appeal lay in this case under s. 41 of the Supreme Court Act, and, the matter having been dealt with summarily, the right of appeal must be found through s. 9 of the Criminal Code. Having regard to the provisions of that section, it remained to be determined whether the alleged contempt was committed in the face of the Court or not.

Contempt in the face of the Court is distinguished from contempt not in its face on the footing that all the circumstances of the alleged contempt are in the personal knowledge of the Court. The presiding judge can then deal summarily with the matter without the embarrassment of having to be a witness to issues of fact which may be in dispute because of events occurring outside.

The contempt alleged against the appellant (i.e., unjustified failure to appear on behalf of a client) was not one in the face of the Court, or, at worst, not one wholly in the face of the Court so as to deprive him of a right of appeal against conviction. Assuming that the trial judge had the power to punish summarily for a contempt not in the face of the Court, the appellant was not properly convicted of a contempt in the present case.

The hearing was not conducted according to the cardinal principles of fair process. Also, the case was not one in which the facts surrounding the alleged contempt were so notorious as to be virtually incontestible, nor was it one where the events upon which the contempt was based took place in the full view and appreciation of the Court. It would have been the prudent course either to have the attorney general assume the carriage of the proceedings before another judge or to invoke the jurisdiction of the Supreme Court of Ontario to punish summarily an alleged contempt of an inferior Court; or if they were to take place before the same trial judge, then only before him acting as a purely disinterested adjudicator, passing on evidence adduced by others through witnesses called by others.

There were fatal defects beyond those residing in a denial of natural justice. The presumption of innocence applies in criminal contempts not in the face of the Court, and the alleged contemnor must be proved guilty beyond a reasonable doubt. The

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trial judge failed to apply this standard. Also, in his findings of fact he relied on an exaggerated estimate of power to pass on credibility without providing any rational basis for so doing.

On the assumption that the appellant's conviction was for a contempt in the face of the Court, he would have no right of appeal under s. 9 of the Criminal Code, and his only recourse would be by certiorari to quash the conviction. In this respect he would be governed by the scope of that remedy, but it would reach a conviction made in violation of natural justice or fair process.

[Poje v. A.G. for B.C., [1953] 1 S.C.R. 516; R. v. Gray, [1900] 2 Q.B. 36; Re Tilco Plastics Ltd. v. Skurjat et al., A.-G. for Ontario v. Clark et al., [1962] 2 O.R. 547; Izuora v. The Queen, [1953] A.C. 327; Parashuram Detarum Shamdasani v. King-Emperor, [1945] A.C. 264; Re O'Brien (1889), 16 S.C.R. 197; Chula v. Superior Court of California (1962), 368 P. 2d 107; Ex. p. Hill (1932), 52 S.W. (2d) 367; District Attorney for Alamosa County v. District Court of Alamosa (1962), 371 P. 2d 271, referred to.]

APPEAL, with leave, from a unanimous judgment of the Court of Appeal for Ontario, quashing the appellant's appeal against his summary conviction for contempt of Court. Appeal dismissed, Spence and Laskin JJ. dissenting.

D. O'Connor, for the appellant.

A. Campbell, for the respondent.

The judgment of Fauteux C.J. and Martland and Judson JJ. was delivered by

MARTLAND J.—This is an appeal, with leave, from the unanimous judgment of the Court of Appeal for Ontario, which quashed the appellant's appeal against his summary conviction for contempt of Court. The learned trial judge held that the appellant had been guilty of contempt of Court in the face of the Court. In my opinion there was evidence upon which that finding could properly be made.

Section 9 of the Criminal Code provides as follows:

9. (1) Where a court, judge, justice or magistrate summarily convicts a person for a contempt of

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court committed in the face of the court and imposes punishment in respect thereof, that person may appeal 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.

(3)An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XVIII apply, mutatis mutandis.

If, as the learned trial judge found, the contempt of Court was committed in the face of the Court, subs. (1), quoted above, only permits an appeal against the punishment imposed, and not against the conviction itself. The appellant appealed only against the conviction. That being so, in my opinion, the Court of Appeal was right in quashing the appellant's appeal, and the appeal from its judgment fails.

I would dismiss the appeal.

SPENCE J. (dissenting)—I have had the advantage of reading the reasons for judgment of Mr. Justice Laskin and I am grateful to him for his most complete analysis of all the facts, which I therefore need not repeat, and discussion of the legal principles involved. I feel, however, that I must express in these reasons a conclusion which differs somewhat from that arrived at by my learned brother.

The first problem which must be solved is whether the alleged contempt was a civil contempt or a criminal contempt.

Kellock J., in this Court in Poje v. Attorney General for British Columbia[1], adopted the statement in Oswald on Contempt of Court, 3rd ed., at p. 36, as carefully distinguishing civil and criminal contempts. That statement was:

And, generally, the distinction between contempts criminal and not criminal seems to be that con-

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tempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt in disregarding orders or judgments of a Civil Court, or in not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is committal—but where the contempt involves a private injury only it is not criminal in its nature.

Adopting that principle, I am of the opinion that the contempt alleged in the present case was a criminal contempt in that what was alleged involved a public injury or offence as the conduct charged against the appellant amounted to an unjustifiable interference with the due administration of justice.

The alleged contempt in the present case being a criminal contempt, then was such an alleged criminal offence an indictable or merely a nonindictable offence? Mr. Justice Laskin has pointed out the provisions of s. 108 of the Criminal Code which reads:

108. Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money is, unless some penalty or punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and is liable to imprisonment for two years.

In the sense that His Honour Judge Martin ordered that the application for declaration that a convicted person was an habitual criminal should proceed on the 9th of September and that the appellant having been ordered to appear on that date as counsel for the said convicted person did not so appear, the alleged contempt might be disobeying, without lawful excuse, an order made by a Court, and so be a breach of s. 108 of the Criminal Code and, therefore, an indictable offence. Moreover, it would seem quite plain that historically contempt of Court has been an indictable offence and in the present case proceedings might well have been taken by way of an indictment. Had such proceedings by way of in-

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dictment been instituted and carried out then surely the verdict thereon would have been subject to an appeal to the Court of Appeal for Ontario under the provisions of s. 583 of the Criminal Code and that appeal could have been taken against either conviction or sentence, or both. The proceedings, however, were not carried on by way of indictment but were carried on summarily and then the provisions of s. 9 of the Criminal Code apply thereto. That section was only enacted by Statutes of Canada, 1953-54 (Can.), c. 51, and prior thereto no appeal lay from a summary conviction for contempt of Court: Poje, supra, per Kellock J., at p. 527.

Section 9 of the Criminal Code provides:

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

(3) An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XVIII apply, mutatis mutandis.

Therefore, it must be decided whether the alleged contempt, the subject of the summary conviction by the judge, was a contempt "in the face of the court" and, therefore, governed by subs. (1) of s. 9 or was a contempt "not committed in the face of the court" and, therefore, governed by subs. (2) of s. 9.

Subsection (1) provides that a conviction for contempt "in the face of the court" may be appealed on the issue of punishment only while subs. (2) permits an appeal in the case of a contempt not committed "in the face of the court" both from conviction and from punishment.

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It was apparent throughout that the alleged contempt here was considered as a contempt "in the face of the court". His Honour Judge Martin, in directing that the appellant appear before him to show cause and in his disposition, expressly treated the contempt as one in the face of the Court and it must be presumed that the Court of Appeal for Ontario in quashing the appeal did so because the appeal was only against conviction and was, therefore, barred by subs. (1) of s. 9.

Mr. Justice Laskin has referred to a number of decisions in United States Courts which certainly show a strong difference of opinion between the Courts of the various states. I need not review these decisions but I wish to adopt the words of Gibson J. in Chula v. Superior Court of California[2], that the situation was a hybrid one in that "the charge of contempt arose from events occurring in the presence of the court which it is claimed should be excused by matters taking place outside the courtroom". In determining this most difficult issue, one must be careful to consider the exact contempt alleged and that contempt was that the appellant without justifiable excuse failed to appear as ordered by the learned trial judge on the 9th of September and again on the 10th of September for the consideration of the application to determine the convicted person an habitual criminal.

The appellant in the charge had a right to have his guilt shown beyond reasonable doubt. Therefore, it had to be proved as against him not only that he did not appear at the time and place set by the learned trial judge's order but that he did not appear without justifiable excuse. As an example, if the appellant had been struck by an automobile as he crossed University Avenue on the way to the court-house and had been carried off to a hospital, there would have been no contempt of Court. Therefore, I say that before the appellant could have been convicted there were circumstances which had to be proved which were

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not in the presence of the Court and which were not to the knowledge of the Court. It is quite plain that much evidence was considered by His Honour Judge Martin as to the circumstances which took place out of the presence of the Court, and certainly the circumstances were not such as would have led to any irrebuttable presumption that there was no justifiable excuse for the non-appearance.

His Honour Judge Martin, as I have said, concluded that the alleged contempt was "in the face of the court". Such a conclusion, of course, can not preclude an examination of the circumstances on review in a higher Court as it is axiomatic that no inferior tribunal by a wrong conclusion of facts can give itself jurisdiction which it does not possess and, in my opinion, equally could not by such incorrect decision as to facts bar an appeal which would have been possible in the event of a correct decision therein. Since it would appear that in order to have found a conviction for the alleged contempt there must have been proof of circumstances which were not in "the face of the court" and "the court cannot have so perfect a knowledge, unless by confession of the party or the testimony of others", to use the words of Blackstone in 4 Commentaries on the Laws of England, 18th ed., at p. 286, I am of the opinion that the contempt was not a contempt in "the face of the court" within the meaning of those words as used in s. 9 of the Criminal Code and, therefore, an appeal lay to the Court of Appeal for Ontario as to both conviction and sentence. With respect, therefore, I believe that the Court of Appeal for Ontario should not have quashed the appeal. In doing so, it affirmed a conviction of the appellant for an indictable offence and under the provisions of s. 597(1) of the Criminal Code an appeal lay to this Court on a question of law if leave to appeal is granted by this Court when no judge of the Court of Appeal for Ontario has dissented. Leave to appeal was granted by this Court on March 19, 1970. Application for such leave to appeal had been made pursuant to the provisions of both s. 597 of the Criminal Code

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and s. 41 of the Supreme Court Act and the order granting leave did not limit such leave to the provisions of either of the sections. Therefore such leave is effective to permit an appeal under s. 597 of the Criminal Code.

The power of this Court on an appeal is set out in s. 46 of the Supreme Court Act. By that section the Court may dismiss the appeal or give the judgment and award the process or other proceedings that the Court whose decision is appealed against should have given or awarded. By s. 47 of the statute the Court may, in its discretion, order a new trial if the ends of justice seem to require it.

Mr. Justice Laskin having determined, as I have, that an appeal lay to the Court of Appeal for Ontario from the appellant's conviction by His Honour Judge Martin for the alleged contempt, and having further determined that an appeal lay from the Court of Appeal for Ontario to this Court, has proceeded to examine the summary proceedings conducted by His Honour Judge Martin and coming to the conclusion that those proceedings did not justify a conviction, so that he would allow an appeal, set aside the conviction and discharge the appellant from any taint of contempt. I have very considerable difficulty in coming to the conclusion that the appeal should be disposed of in such a fashion. There is no doubt that once contempt is not in "the face of the court" then the adjudication thereon summarily by the tribunal which is, in fact, the accuser, is one which is most difficult without breach of nearly every principle of natural justice evolved by the Courts. When a contempt is "in the face of the court", in most cases it cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the contempt was committed. No other course would, in most cases, protect the due administration of justice. When, however, the contempt is not "in the face of the court" then it can be dealt with

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subsequently before any other tribunal, the attorney general or his representative representing the interests of the state in the administration of justice with the accused being permitted all the protections of an ordinary trial for an ordinary offence.

That such a procedure could have been carried on in the present case appears from the record. The alleged contempt took place on the 9th and 10th of September. The citation of the appellant and his co-accused Griner was not issued by His Honour Judge Martin until the 12th of September; that citation required the two accused to appear before His Honour Judge Martin on the 15th of September and the actual hearing did not take place until September 25, 1969.

In Regina v. Gray[3], the accused appeared before the Court in obedience to an order made upon the application of the Attorney-General to the Crown side of the Queen's Bench Division to answer for a contempt allegedly committed by publishing a certain article. Such a procedure would have avoided His Honour Judge Martin unnecessarily placing himself in the most invidious position of being an accuser, what amounted to a witness, and also a judge. I am of the opinion that the order which should have been made by the Court of Appeal for Ontario was that the matter should be referred to the Attorney General for Ontario in order that he might consider the taking of proceedings by way of indictment for the alleged contempt. That is the order which this Court should make.

LASKIN J. (dissenting)—"Contempt of Court" is well known in the vocabulary of the law. It is also well known that it is not a phrase to be taken literally in any sense of being concerned with protection of the personal dignity of the

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judge or the honour of the Court. It is rather a sanction to serve the administration of justice in the public interest. When invoked for this purpose, the reasonable expectation should be that it will be exercised with scrupulous regard for those principles that underlie the administration of justice through law. Included among these is the principle that no one shall be liable to penalty or punishment without a fair hearing; and the principle that he shall not suffer conviction at the hands of another who is both his prosecutor and his judge; and the principle that he shall not be judged by one in whom there is a reasonable apprehension of bias.

These principles, in their modern appreciation, have had a stunted application at best in the summary procedures that have for long characterized judicial control of various types of contempt, whether committed in the view of the Court or out of Court. Practice over the years has purified any historically-based misgivings about the regularity of summary procedures as alternatives to ordinary trial by jury: see Fox, History of Contempt of Court, 1927, passim. Those procedures consisted of committal, which could be immediate, in the case of contempts in the face of the Court, and of attachment and examination, or of attachment without examination, in the case of contempts committed out of Court. They had and have their justification in the need, according to circumstances, to deal immediately with any obstruction or outrage affecting the conduct of judicial proceedings or interfering with the orderly processes of the law or involving a disobedience to the orders of a Court or judge.

There has been, and in my view properly so, a continuing concern by Courts and judges about the magnitude of the power to punish contempt by summary process. Statutory controls have been introduced in some common law jurisdictions, and rules of court in others have given some form and precision to the time-honoured

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procedures of committal and attachment. The details of these reforms are immaterial for the present case. What is relevant is the observation by Lord Russell of Killowen in Regina v. Gray[4], at p. 41, that jurisdiction to deal with contempt brevi manu, that is, summarily, should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt; "because, if it is not a case beyond reasonable doubt, the Courts will and ought to leave the Attorney General to proceed by criminal information"; or, I may add, by indictment. Alternatively, a judge who proceeds summarily, at least in the sense of initiating the proceedings, may in a case where the contempt is not obvious, wisely choose to conduct it in accordance with the rules that ordinarily prevail in a non-jury trial. In such a case, the principles to which I have adverted above should have a place.

Indeed, unless necessity or special circumstances require the modification or suspension of any of the aforementioned principles, there is every reason, subject to applicable statutory direction, to apply them in contentious contempt of Court proceedings as fully as they are now applied in other branches of the law, as, for example, in the field of administrative law.

With these preliminary observations I turn to the facts and issues in the present case.

The appellant is a member of the Ontario Bar who was found guilty of contempt in the face of the Court by His Honour Judge Walter Martin. The finding was made in summary proceedings initiated and conducted by the judge who called and examined witnesses, cross-examined witnesses for the appellant and also acted upon his own asserted knowledge of facts bearing on the

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citation for contempt. Indeed, after the examination and cross-examination of witnesses called by the judge, he proceeded to make a statement of his own as part of the record of evidence. Objection was taken to the accuracy of some parts of the statement and he was invited to submit to cross-examination. He refused saying, "I made statements of fact; that is what took place."

Another member of the Bar of Ontario was cited by the judge along with the appellant, but he is not before this Court because of his death by drowning before the hearing. I mention him because he was represented by counsel before Judge Martin, and that counsel made some observations about the difficult if not impossible position of Judge Martin as witness, prosecutor and judge in the contempt proceedings. Counsel for the appellant associated himself with these remarks to which I will return later in these reasons.

An appeal was taken from the conviction of contempt to the Ontario Court of Appeal which quashed the appeal without any recorded reasons. It is a safe surmise, if it is not common ground, that the Ontario Court of Appeal founded itself on s.9 of the Criminal Code which, in the case of a conviction of contempt in the face of the Court, permits an appeal only against the punishment imposed but not against the conviction. It was relief from the conviction that the appellant sought there.

Leave to appeal was sought from this Court both under s. 597 of the Criminal Code and under s. 41 of the Supreme Court Act, and, in addition, appellant asked for an order of certiorari under s. 61 of the Supreme Court Act. Leave to appeal simpliciter was granted and, on the same day, March 31, 1970, appellant issued as well a notice of appeal as of right.

The threshold question in this Court is its jurisdiction to entertain this appeal. There is no basis for an original invocation of certiorari and

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I put it to one side: see Hind v. The Queen[5], at p. 237. The fact that leave was granted does not preclude reconsideration by this Court sitting on the appeal proper. I address myself first to the question whether an appeal lies under s. 41 of the Supreme Court Act. Unless the present appeal is caught by the exclusionary terms of s. 41 (3), or unless it is governed entirely by s. 9 of the Criminal Code, leave could be given under s. 41(1) as a foundation for a hearing on the merits. I may at this point dispose of an alternative contention of the appellant, which was to the effect that leave could be related to the conviction or judgment of Judge Martin as being that of the highest Court of final resort in Ontario in which judgment could be had in this case. That is simply not so; and, moreover, leave was not sought on that basis.

Is a conviction of contempt of Court a conviction of an indictable offence (in which case reliance on s. 41 must be abandoned), or is it a conviction of an offence other than an indictable offence (in which case leave to appeal may be given on the question of law or of jurisdiction)? The answers to these questions depend on the determination of a prior issue which was not canvassed at the hearing and which was implicitly but not explicitly dealt with in Poje v. Attorney General for British Columbia[6]. That prior issue concerns legislative power to regulate contempt of Court in its substance and in its procedural aspects and to give rights of appeal in respect thereof to provincial appellate Courts. The present case appears to have proceeded on the ground that the alleged contempt fell within the class of criminal contempts as contrasted with civil ones. The question that arises here is whether the distinction or the classification has a constitutional significance in relation to legislative power. The

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majority of the Court in Poje thought that it did because they referred to In Re Storgoff[7]. At the time of the Poje case, the present s. 9 of the Criminal Code had not been enacted, and because of the conclusion that the contempt was criminal it was held by the majority in Poje that there was no right of appeal to the provincial appellate Court. There was no indication in that case that leave to appeal to the Supreme Court had been sought or could be given; and, indeed, in view of the conclusion that there was no right to go to the provincial Court of Appeal, that did not need consideration.

Although I do not consider myself foreclosed from reexamining the question, I take it for the purposes of the present case (especially when counsel proceeded on this basis) that the alleged contempt here was criminal in a sense involving federal legislative jurisdiction in relation to the criminal law as well as to federal legislation dealing with rights of appeal to the Supreme Court.

In returning to the question of the nature of the offence, indictable or not, involved in a conviction of criminal contempt of Court, I point to s. 108 of the Criminal Code which is broad enough to embrace criminal contempt resulting from disobedience of an injunction order, and which, consequently, would put criminal contempt in the category of indictable offences. It is the fact that in Re Tilco Plastics Ltd. v. Skurjat et al., Attorney-General for Ontario v. Clark et al.[8], Gale C.J.H.C. (as he then was) rejected a contention that the Attorney-General should have proceeded under s. 108 instead of by originating notice of motion, but that was because of his view that s. 108 itself conditioned its application by reason of the qualifying words therein "unless some… other mode of proceeding is expressly provided by law". There was, in his opinion, another prescribed mode of proceeding, that mode being the summary procedure long

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known to the common law. The particular procedural question that was before the learned Chief Justice is not in issue here, but I refer to s. 108 because it assists in characterizing criminal contempt for the purposes of s. 41 of the Supreme Court Act and also for the purposes of s. 597 of the Criminal Code.

The Tilco Plastics case is a useful reference on two other grounds. First, it carries the reminder that s. 8 of the Criminal Code, in abolishing common law offences, expressly reserved "the power, jurisdiction or authority that a court, judge, justice or magistrate had [previously] to impose punishment for contempt." Second, the Ontario Court of Appeal, which affirmed the judgment of Gale C.J.H.C., refused leave to appeal to this Court on the ground that the judgment sought to be appealed was in a criminal cause within s. 40 of the Supreme Court Act, and hence it had no jurisdiction to give leave under s. 38: see [1967] 1 O.R. 609. The final act in the Tilco Plastics case was the refusal of this Court to give leave to appeal: see [1966] S.C.R. (VII) (sub nom. Clark v. Attorney General of Ontario.) I have examined the record in connection with the application for leave (it was dismissed on November 7, 1966) and it reveals that the application was founded on s. 41 of the Supreme Court Act and s. 597 of the Criminal Code.

There is not, within the compass of federal criminal law and federal legislation respecting appeals to this Court, any other classification within which criminal contempt of Court can fall save that of being either an indictable or a nonindictable offence. The continued recognition of summary process to deal with an alleged criminal contempt is not a conclusive factor in deciding to which of the two classifications it must be assigned. Having regard to s. 8 and s. 108 of the Criminal Code, already mentioned, the matter is not completely at large; and s. 9, to which I will come, also has a bearing.

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The development and general use of the summary procedures of committal and attachment did not change the quality of a criminal contempt, which had historically been an indictable offence, and as well one that could be prosecuted by criminal information: see 3 Holdsworth, History of English Law, 5th ed., 1942, pp. 392-4; 8 Halsbury, Laws of England, 3rd ed., 1954, p. 3; Oswald, Contempt of Court (Canadian edition), 1911, p. 7. Although resort to indictment and criminal information became infrequent, these procedures remained, and examples thereof are collected in Fox, History of Contempt of Court, 1927, passim and appendix; and see also Ziegel, "Some Aspects of the Law of Contempt of Court in Canada, England and the United States", (1960) 6 McGill L.J. 228, at p. 256. As I have already indicated, indictment is still available in this country for the trial of criminal contempts.

It follows from the foregoing that no appeal lies in this case under s. 41 of the Supreme Court Act, Whether an appeal lies under s. 597 of the Criminal Code depends on the route that the criminal contempt proceeding followed. If it was dealt with summarily—and that was the case here—the right of appeal must be found through s. 9 of the Criminal Code and not through s. 583. The latter speaks of an appeal to the provincial Court of Appeal by a person who is convicted "in proceedings by indictment", and resort to s. 597 to bring the case to this Court is limited accordingly.

It is not, in my opinion, arguable that s. 9 provides the only avenue for appeal in the case of a conviction for criminal contempt. That section operates only where the alleged contempt is treated summarily, and it hence leaves an avenue for appeal if the contempt proceedings are by indictment. Section 9 reads as follows:

(1) Where a court, judge, justice or magistrate summarily convicts a person for a contempt of court committed in the face of the court and imposes

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punishment in respect thereof, that person may appeal 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.

(3) An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XVIII apply, mutatis mutandis.

Having regard to these provisions, it remains to be determined whether the alleged contempt was committed in the face of the Court or not. The view taken by the convicting judge is not conclusive on the question whether the contempt was committed in the face of the Court. Again, a wrong decision by the Ontario Court of Appeal on the characterization of the contempt as one committed in the face of the Court will not preclude an appeal against the conviction of contempt under s. 597, albeit that Court quashes the appeal to it in reliance on its characterization.

The appellant had undertaken to defend a convicted person against an application to have him declared an habitual criminal. The appellant and Crown counsel appeared in the matter before Judge Martin on July 21, 1969. The appellant had advised Crown counsel of his intention to challenge the validity of the habitual criminal provisions and filed a notice of motion to that effect, a copy of which was before Judge Martin. In the circumstances, the proceedings were adjourned to September 9, 1969 at 10.30 a.m.

The transcript of proceedings in the matter on the morning of September 9, 1969, contains a statement by Judge Martin that he had been attended in chambers by Crown counsel and by

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Mr. David Griner, a barrister and solicitor, and was advised by the latter that the appellant was ill but there was a possibility that he would be able to proceed the next day; and, moreover, Mr. Griner advised that he would act as counsel if the appellant was not well enough to proceed. The matter was thereupon adjourned to 10 a.m. of the following day.

In the statement that he read into the record in the contempt proceedings Judge Martin said that the appellant had telephoned him at about 9.45 a.m. on September 9, 1969, advising that he would be a little late but (Judge Martin said) the appellant made no mention of illness.

The appellant gave evidence in the contempt proceedings, testifying to the preparations he had made for defending the habitual criminal application. He also testified to feelings of exhaustion that had begun to affect him in the preceding summer. He worked long hours over the weekend of September 6, and felt so unwell on Monday, September 8 that he asked Mr. Griner to appear in his stead on two sentencing matters fixed for that day, and this Mr. Griner did. He also arranged with Mr. Griner to appear for him on September 9 and ask for a day's adjournment. He said that he stayed home on September 9 until the evening when he went to his office. He did not recall calling Judge Martin that day, but said it must have been Monday (September 8) and Wednesday (September 10) that he spoke to the judge.

There is in the record before this Court a transcript of proceedings which took place in the afternoon of Wednesday, September 10, 1969. Neither the appellant nor Mr. Griner had appeared that morning for the accused in the habitual criminal application. Crown counsel advised that he understood that the appellant was under doctor's care and said that an articled student from the appellant's office was in court. The accused spoke up to say that he was informed

[Page 466]

by the appellant's assistant that the appellant had been taken to hospital from the barristers' robing room. Judge Martin then stated, according to the transcript, that the appellant had telephoned him shortly after 10 a.m. that either he or Mr. Griner would appear, either at 10.30 a.m. or 11 a.m. Neither had appeared and he would order them to show cause why they should not be cited for contempt.

In the statement that he made in the contempt proceedings, Judge Martin referred to the telephone call by the appellant on September 10, and added that the appellant said nothing about suffering from any illness nor did he say he was sick. Appellant's testimony in the contempt proceedings was that he told Judge Martin during the telephone call that he was not feeling particularly well but he was prepared to proceed. He went to the court-house with an investigator, whom he asked to accompany him because he was feeling dizzy. (He had gone to his office at 7.30 that morning after working late the previous evening.) When he reached the robing room he felt progressively worse and lay down, and then lost consciousness. Some two to three hours later, after 2 p.m., he left the building with the investigator who drove him to a hospital in Guelph while the appellant slept in the back of the car. The hospital would not admit him and they returned to Toronto. The investigator telephoned a Dr. Bernstein from the highway, and arranged for him to see the appellant. In evidence that he gave at the contempt proceedings the investigator testified to the same facts, save that he fixed the time of leaving the court-house as being about 1.45 p.m.

The appellant's articled student and his legal secretary gave confirmatory evidence that he looked exhausted and ill in the material period September 8 to September 10. Dr. Bernstein, a general practitioner for two years, testified that he saw the appellant in the evening of September

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10 at his office and that preliminary tests, given after taking a history, indicated a diabetic condition. The appellant was given a glucose tolerance test later, and the results were positive for diabetes. The doctor put the appellant on oral medication and a diabetic's diet. By the time of the contempt proceedings on September 25, 1969, the appellant's sugar levels had been brought under control. Save for two days on which he went for tests, the appellant (according to his testimony) had been at home since his collapse, and the day of the contempt proceedings was his first downtown since he came under doctor's care.

The contempt proceedings were initiated by Judge Martin by a letter to the appellant and to Mr. Griner directing them to appear before him "to show cause why you failed to appear as counsel [in the habitual criminal proceedings] on Tuesday, the 9th day of September, 1969 at 10.00 a.m. and Wednesday, the 10th day of September, 1969, at 10 a.m." The judge proceeded entirely suo motu, no one appearing on behalf of the Attorney-General to conduct the proceedings. He called three witneses (in addition to making a statement of facts of his own) and examined them. The first, a commissionaire on duty in the barristers' robing room, testified that the appellant was there in the early afternoon of Monday, September 8, 1969, was in the toilet for a considerable time, and then in the common room and did not leave until after 4 p.m. He was worried that the appellant was "sick, deathly sick". He saw the appellant on Wednesday morning, lying down on a chesterfield, and said that he could see that the appellant was sick. Asked directly about possible intoxication he replied "No I was close to him and I would swear that man had no drink in his body. He was in complete shell shock."

The second witness was the administrator of the court-house who said he spoke to the appellant on Monday, September 8 while the appellant

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was in a small washroom cubicle and asked him if he was ill. The appellant replied "No, I am all right." On Wednesday, he saw the appellant lying on a chesterfield in a room in the court-house, and it appeared to him that the appellant, who was muttering, "was either under the influence of alcohol or drugs or he could have been mentally ill." On cross-examination he said that it would be difficult to say that the appellant was "obviously ill" but in his condition he should not be appearing in court. The witness was not familiar with diabetes or its effects.

The third witness called by Judge Martin was a police officer, interested in the habitual criminal proceedings. He testified that he saw the appellant in the morning of September 10, 1969, heading toward the elevators on the main floor of the court-house. He had no conversation with him, but observed the appellant walk about twenty feet. It was the police officer's opinion that the appellant was under the influence of either barbiturates or alcohol. He observed the appellant for less than a minute. He knew him as a person who generally walked hurriedly and directly but on this occasion he appeared to be unsteady. The witness was not familiar with diabetes or its effects.

The appellant denied that he had any drugs or alcohol in the period September 8 to 10. His articled student, his legal secretary and the investigator said that they did not see him take any drugs or alcohol nor did he give any indication of having taken any. Dr. Bernstein testified that there was no indication when he saw the appellant on September 10 that he had been drinking or taking drugs. He stated that a layman could mistake the symptoms of diabetes as indicating that the diabetic was under the influence of drugs or alcohol.

On the evidence which I have recounted, Judge Martin found that the sole cause of the appellant's failure to appear in court on September 9 and 10 was that he was intoxicated by alcohol or drugs. The judge accepted the evidence of the court administrator and the police officer "with-

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out reservation". He disbelieved the appellant and disbelieved Dr. Bernstein; and, of course he must have disbelieved the commissionaire, a witness he had called, and disbelieved or refused to accept the evidence of the articled student, the legal secretary and the investigator.

The legal conclusion to which the judge came on his finding of fact was that "[the appellant's] failure to appear due entirely to being intoxicated by alcohol or drugs constitutes conduct abusive of the administration of justice and is contempt in the face of the court." No authorities were cited, nor was any rationale provided, to support the conclusion as to the character of the contempt. Judge Martin indicated in his reasons that he was aware that an inferior Court has no jurisdiction to punish summarily for a contempt not in the face of the Court.

Three questions arise for consideration. First, is a counsel's unjustified failure to appear on behalf of a client a contempt in the face of the Court or a contempt not in the face of the Court? Second, if it is the latter, was the appellant properly convicted of a contempt in the present case? Third, if it is the former and there was no contempt in the present case, is an appellant in the position of the accused without remedy against an unjustified conviction? This third question is easily answered. On the assumption that the appellant's conviction was for a contempt in the face of the Court, he would have no right of appeal under s.9 of the Criminal Code, and his only recourse would be by certiorari to quash the conviction. In this respect he would be governed by the scope of that remedy, but it would reach a conviction made in violation of natural justice or fair process. I shall consider the matter of fair process in this case when dealing with the second question that I have put.

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Absent any right of appeal against a conviction for criminal contempt by an inferior Court, certiorari is the only remedy to challenge it: cf. 17 Corpus Juris Secundum, No. 117, pp. 310-313. I would not agree that the remedy is ousted merely because the contempt was the subject of summary proceedings by the judge in or in respect of whose inferior Court the contempt occurred. In the present case, for reasons that appear below, my opinion is that the contempt conviction was vulnerable to certiorari to quash.

I turn now to the question of the character of the contempt laid against the appellant. He was cited not for intoxication (whether by alcohol or drugs) in the court or in its precincts, but for being absent when as counsel he had a duty to appear to defend an accused in a criminal proceeding. The intoxication went to the want of justification for his absence. There is no doubt that the Court, Crown counsel and witnesses were inconvenienced by appellant's failure to attend.

In Izuora v. The Queen[9], the Judicial Committee held that counsel's failure to appear for the giving of judgment, although so directed by the Court, was not a contempt at all, albeit a discourtesy and a dereliction of duty to the client. It was unnecessary, therefore, to consider whether, if it was a contempt, it was in facie curiae, and hence I put this case aside.

Contempt in the face of the Court is, in my view, distinguished from contempt not in its face on the footing that all the circumstances of the alleged contempt are in the personal knowledge of the Court. The presiding judge can then deal summarily with the matter without embarrassment of having to be a witness to issues of fact

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which may be in dispute because of events occurring outside.

The distinction is evident from 4 Blackstone, Commentaries on the Law of England, 18th ed., 1829, at p. 286, where he says:

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or in very flagrant instances of contempt the attachment issues in the first instance.

Earlier in his treatise, he had referred to contempts "that … are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there; or else are consequential which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority" (at p. 283). This suggests that he equated contempts in the face of the Court and direct contempts, but although the latter may embrace the former I do not think that they are necessarily the same.

Section 9 of the Criminal Code, in making the distinction between contempts in the face of the Court and contempts not in its face, did not attempt to define the two classes; and Courts have abstained from doing so, save in the most general terms and by reference to obvious examples: see Izuora v. The Queen[10], at p. 336; Parashuram Detaram Shamdasani v. King-Emperor[11], at p. 268.

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Blackstone's definition has been cited with approval by the Supreme Court of the United States (see Ex parte Terry[12], at p. 307), and federal legislation in that country and the rules of federal procedure respecting punishment for contempt appear to have taken a similar limited view of criminal contempt of Court in the statutory reference to "misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice": see 18 U.S.C.A. No. 401. I note that judicial construction of the "obstruct" clause has been to require physical proximity and not merely a casual one: see Nye v. United States[13], at p. 49. Even so, it has been observed that there is a difference between the scope of the words "in the presence of the court" and the narrower phrases "under the eye or within the view of the court", "in open court", "in the face of the court", or "in facie curiae": see Cooke v. United States[14], at p. 536.

In this Court, Strong J. referred in In re O'Brien[15], at p. 208, to contempt in the Court's presence (sedente curia), in effect assimilating it to contempt in the face of the Court. There may be statutory reasons, as in the United States, for making the distinction, but I am content in this case not to differentiate for the purposes of s. 9 of the Criminal Code between contempt in the face of the Court and contempt in its presence.

In the same way, there may be direct contempts which are not in the face of the Court, as, for example, where a derogatory letter is delivered to a judge in chambers (see Note, "Civil and Criminal Contempt in the Federal Courts", (1947-48) 57 Yale L.J. 83, at p. 89). It is the more important therefore to dwell on the very words used in the Criminal Code. Further, since the ambit of appeal given by s. 9 depends on the

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distinction between contempts in the face and those not in the face of the Court, I am not disposed to cut it down by an enlarged construction of the words "contempt of court committed in the face of the court". The affirmation of summary power to deal with contempts of both classes reinforces my view that the construction should be strict.

Apart from the Izuora case, already mentioned, the only judicial authorities on the very question in issue here appear to be a series of judgments in American State Courts. I have examined five of them. Three, all from California, are to the effect that counsel's failure to appear is a contempt "in the presence of the court", equated with a "direct contempt": see Chula v. Superior Court of California[16]; Arthur v. Superior Court of Los Angeles County[17]; and Vaughn v. Municipal Court of Los Angeles Judicial District[18]. The latter two cases rest in the main on the first, Chula, on which counsel for the respondent relied. The two that hold that counsel's failure to appear is not a contempt in the Court's presence are Ex partie Hill[19], a judgment of the Supreme Court of Texas, and District Attorney for Alamosa County v. District Court of Alamosa[20], a judgment of the Supreme Court of Colorado. I would also refer to Behn v. President and Members of the Court of Arbitration[21], in which the Supreme Court of Western Australia held that the failure of a witness to reappear to continue his evidence was not a contempt in the fact of the Court.

The Court in the Hill case said flatly that "the offence of being absent from court could not take place in the presence of the court" (supra, at

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p. 368). In the Colorado case, the Court dealt with the matter as follows (supra, at p. 273):

It is doubtless true that failure of the district attorney to be present in person or by an official representative resulted in some inconvenience and delay in the transaction of business pending before the court on February 1, 1962. One who thus willfully and intentionally brings about such a result, by conduct committed in the presence of the court, would be guilty of a direct criminal contempt; however in the instant case it is apparent that the question of whether there was any willful intent thus to interfere with the administration of justice depends upon whether facts which are asserted on the one hand and denied on the other are true or false. The answer of respondent has exhibits attached thereto in the form of affidavits concerning matters which happened outside the presence of the court, and thus the answer itself discloses that the contempt of which petitioner was found guilty, if any, did not take place in the presence of the court.

These two cases, like the Chula case, which I propose to consider, involved a characterization of the contempt for the purpose of deciding whether the Court could deal with it summarily in accordance with the procedures of the particular jurisdiction. In Chula, the Supreme Court of California split four to three on the question of the character of the alleged contempt. Gibson C.J. in a concurring judgment, which produced the majority result, recognized the situation as a "hybrid" one, in that "the charge of contempt arose from events occurring in the presence of the Court which it is claimed should be excused by matters taking place outside the courtroom." (supra, at p. 112).

The judgment in which Gibson C.J. concurred proceeded, under the facts therein, on the basis that "the failure of an attorney, without valid excuse, to be present in court at the announced time for the sentencing of a client whom he is representing constitutes a contempt committed in the immediate view and presence of the court, and

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hence a direct contempt which the court is empowered to punish summarily under s. 1211 of the Code of Civil Procedure" (supra, at p. 110). It was opposed by the dissenting view of a very distinguished jurist, Traynor J., later Chief Justice of California, a post from which he recently retired.

So far as there is any assistance on principle to be had in the present case from the views in Chula, I prefer those of Judge Traynor, speaking for himself and two others. As he points out, the classification of the contempt in question "is merely a semantic device for differentiating contempts that can be adjudicated summarily from those that can be adjudicated only after adequate notice and hearing"; and he adds the relevant remark that "When a contempt occurs within the immediate view and presence of the court the judge is fully informed of all facts necessary to adjudicate the guilt or innocence of the alleged contemner" (supra, at p. 113). In this connection, I would observe that if the present case were one where counsel, in the presence of the Court and while it was in session, announced that he would not appear at a later day fixed for a hearing requiring his presence, it would present a different situation than the one in issue. According to Judge Traynor's citation of authority, the California Courts are out of step with the course of decision on the problem in the United States. I note too that Judge Traynor stayed with his dissent in the succeeding Arthur case, cited above.

There is another factor in the present case bearing on the character of the contempt which is worth mentioning, although I do not regard it as conclusive. The very procedures that Judge Martin used to deal with the alleged contempt support the conclusion that it was not one in the face of the Court. He found it necessary to rely on the testimony of witnesses to events occurring outside of his view, and outside of his presence in

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court as presiding judge in the habitual criminal proceedings. He did not so act in obedience to any statutory direction and under the compulsion of any rules of court.

I conclude that the contempt alleged against the appellant was not one in the face of the Court, or, at worst, not one wholly in the face of the Court so as to deprive him of a right of appeal against conviction. On this view, there was no right in Judge Martin to proceed summarily, unless it be the case that the introduction of s. 9 of the Criminal Code enlarged the common law power of an inferior Court, subject to a right of appeal. It should be observed that s. 9(1) speaks of "a court, judge, justice or magistrate" while s. 9(2) speaks only of "a court or judge". The latter terms are not defined either generally or for the purposes of s. 9, but they are broad enough to include a County Court and a judge thereof. I am prepared to assume, without deciding, that Judge Martin had the power to punish summarily for a contempt committed not in the face of the Court, and I proceed on this basis to consider the second of the three questions that I have set.

Whether the appellant was properly convicted of the contempt for which he was cited depends on (1) the fairness of the process to which he was subjected and (2) the proof on which the conviction was founded. On both of these points, I conclude that the conviction cannot stand. On the first point, I refer to the remarks of counsel for Mr. Griner when addressing Judge Martin at the conclusion of the evidence in the contempt proceedings and objecting in that address to the way in which the proceedings were initiated and conducted:

That is not the way our Courts proceed. There isn't a Crown Attorney here who one would ordinarily have thought would be somebody other than Mr. McGee. [the Crown Attorney in the habitual criminal

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proceedings] to have led the evidence. Your Honour has led the evidence and it is obvious from the questions that Your Honour has directed, that Your Honour has interviewed, or had them interviewed on your behalf, otherwise you could not have asked the questions that you have. Your Honour then rules on the propriety of questions asked of these witnesses by both Mr. O'Connor and myself and then reexamine the witnesses after cross-examination.

So far as the witnesses as Mr. O'Connor has called they have given their testimony and Your Honour has cross-examined them even to the point of asserting directly to Mr. McKeown that my client, Mr. Griner, had made certain flat statements to Your Honour in your Chambers. I say, whereas here my client is in a position where his professional reputation is at stake, and indeed his liberty is at stake, that if Your Honour wants to proceed, it is a proper case for making a report to the Attorney General and the Attorney General could retain Counsel and we would proceed in the ordinary course and Counsel so retained, would be independent and would call such evidence as he saw fit, and another judge would listen to the evidence without having the benefit or disadvantages, as the case may be, of Your Honour's personal knowledge of the case.

These remarks summarize the cardinal principles of fair process by which the present case should have been governed. Where the judge has to be and is a witness to facts which are in issue, he cannot, in my opinion, rely on a rule of discretion to justify him in proceeding to judge the issue. Trial of a contempt charge by summary process does not necessarily mean trial before the very judge involved in the proceedings out of which the contempt arises. Indeed, it is the preferable course, where conditions do not make it impracticable, or where there will be no adverse effect upon the pending proceedings by the delay, to have another judge conduct the contempt charge: see Offutt v. United States[22]. Moreover, as is obvious from the way in which Judge Martin conducted the contempt hearing, summary process

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need not mean that no witnesses, other than the alleged contemnor, will be heard, nor should it be taken to mean that the presiding judge can also be witness and prosecutor where, as in this case, it was neither urgent nor imperative that he so act. The rules of natural justice that judges have so firmly fashioned for non-curial tribunals must have equal validity for them, unless there be compelling reasons against their application. There are none here.

The present case was not one in which the facts surrounding the alleged contempt were so notorious as to be virtually incontestible, nor was it one where the events upon which the contempt was based took place in the full view and appreciation of the Court. It would have been the prudent course in this case either to have the attorney general assume the carriage of the proceedings before another judge (see Regina v. Gray[23], and Cooke v. United States[24]) or to invoke the jurisdiction of the Supreme Court of Ontario to punish summarily an alleged contempt of an inferior Court (see Rex v. Davies[25]); or if they were to take place before Judge Martin, then only before him acting as a purely disinterested adjudicator, passing on evidence adduced by others through witnesses called by others.

Judge Martin was in an impossible position when he gave evidence which was challenged by other testimony and yet was not amenable to cross-examination; and, further, when he had to make findings of fact which depended in part on reliance on his own evidence (or on his statement of facts, as he termed it). The late Professor Beale put the dilemma well in an early article, "Contempt of Court, Criminal and Civil", (1908) 21 Harv. L. Rev. 161, at p. 172, as follows:

A danger always exists in the punishment of any contempt by summary process by the judge who has suffered from the contempt; he is made both

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judge and jury in his own case, he passes on the facts and on the law, and determines the punishment. Such a power in the hands of an angry man is, of course, subject to abuse; and judges, being human, are subject to anger like other men.

There were in this case fatal defects beyond those residing in a denial of natural justice. Although the contempt proceedings may have been initiated by a show cause citation, this does not dispense with the right of the appellant to have his conviction meet the test of proof of guilt beyond a reasonable doubt; certainly not where, as in this case, he has met any initial onus of adducing evidence. Authority on this question may be lacking in England (see (1962) 25 Mod. L. Rev. 178 at p. 181) and in Canada, but it exists in the United States and in Australia: see Gompers v. Bucks Stove & Range Co.[26]; Michaelson v. United States[27]; The King v. Fletcher, ex p. Kisch[28]. These cases hold that the presumption of innocence applies in criminal contempts not in the face of the Court, and the alleged contemnor must be proved guilty beyond a reasonable doubt. Dealing as we are with a provision of the Criminal Code in relation to a criminal conviction I know of no reason for rejecting the application of this same standard to the case at bar.

Judge Martin nowhere in his reasons showed an awareness of any obligation to meet this standard, and there is consequently a fatal infirmity in the conviction on this ground as well.

That is not all. In his findings of fact he has relied on an exaggerated estimate of power to pass on credibility without providing any rational basis for so doing. He was dealing with the reputations of two professional men, a lawyer and a doctor. The latter gave expert opinion evidence on a medical question on which Judge Martin could

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not have any personal competence; and this opinion evidence was not challenged in any way. How then can the doctor be completely discredited in what he said? Nothing in his examination or cross-examination showed up any contradiction in his medical testimony. I do not think that a mere ipse dixit is enough to wipe out testimony of professional men in respect of issues touching their professional reputations: see Regina v. Chapman[29]. Moreover, a judge who is also a trier of fact cannot simply deny weight to unshaken evidence on the ground that he is assessing credibility. This has been a long established doctrine in the Ontario Court of Appeal: see Rex v. Gun Ying[30]; Regina v. McCullough[31]. In this Court too, there have been warnings against arbitrary rulings on credibility: see White v. The King[32].

To find intoxication in the present case, and hence to conclude that the failure to appear was unjustified, is to give testimonial cogency to evidence that is not far short of surmise, when related to other evidence in the case by witnesses much better situated to speak to that fact. No one testified to any odour of alcohol; the evidence on this was that there was none. The only adverse evidence was to the effect that the appellant was momentarily seen to be unsteady on his feet and that he mumbled when seen lying on a chesterfield, symptoms that are consistent with the diagnosed illness. The adverse evidence defies the principle of proof on a balance of probabilities let alone proof beyond a reasonable doubt.

I would allow the appeal, set aside the conviction and discharge the appellant from any taint of contempt.

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Appeal dismissed, SPENCE and LASKIN JJ. dissenting.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitor for the respondent: W. C. Bowman, Toronto.