Lawyer argued with judge over masks in court during pandemic; different judge made contempt finding
The Alberta Court of Appeal has refused to uphold a contempt judgment against a lawyer, finding that the judge had no jurisdiction to render such judgment.
In R v. Royal, 2022 ABCA 330, Peter Royal was a practicing barrister who had an exchange with an Alberta provincial court judge over the wearing of masks in court during the COVID-19 pandemic. The judge directed Royal to show cause why he should not be found in contempt, but the contempt hearing was held by another provincial court judge who found that Royal had indeed been in contempt.
The matter was brought to the Alberta Court of Appeal, which referred to the similar case of R. v Doz, 2 SCR 463, where the Supreme Court of Canada had ruled that a provincial court judge had no jurisdiction to entertain a proceeding for contempt before another judge. The highest court then proceeded to quash the contempt judgment.
On the basis of Doz, the appeal court ruled that the second provincial court judge acted without jurisdiction in rendering the contempt judgment against Peter Royal. The court noted under the Criminal Code, the power of the provincial court judge is restricted to that which is necessary to preserve order in the court “over which he presides.”
The appeal court also observed that there were advantages to having contempt proceedings heard by a different judge to prevent a judge from being the accuser, witness, and adjudicator. The court adopted the view that the second judge did not have to be another provincial court judge, since the matter can even be taken before a superior court judge.
The appeal court also noted that nothing in Doz suggested that the power to cite a person in contempt depended on the “personal knowledge” of the first judge about the offence, especially if the contempt was in the face of the court and there was a complete transcript of the proceedings. The appeal court also said that the power to cite in contempt had nothing to do with the urgency of the situation.
The appeal court ultimately upheld the ruling in Doz and allowed the appeal, finding that the second provincial court judge had no jurisdiction to cite Royal in contempt. Accordingly, the contempt judgment was quashed.
