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Monday, October 28, 2019 @ 8:24 AM  

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Appeal by the accused, Asselin, from a conviction for common law contempt of court. The accused was subpoenaed as a witness in a second-degree murder trial occurring before a jury. The accused had previously given two statements to police and testified at the preliminary inquiry. Following the subpoena, the accused unequivocally indicated to the Crown that he would not meet with them, nor would he testify. The Crown obtained a material witness warrant but was unable to execute it until after the murder trial ended in an acquittal. The accused took the position the warrant was wrongly issued, as the supporting affidavit contained insufficient information to demonstrate he was likely to give material evidence. The trial judge rejected the accused's position regarding the validity of the warrant and found no lawful excuse for not attending in response to the subpoena. The accused was convicted of common law contempt and sentenced to nine months' imprisonment, less credit. The accused appealed.

HELD: Appeal dismissed. There was sufficient information before the Court to grant the material witness warrant, as there was evidence the accused gave two statements to police describing hearing an altercation and leading them to the scene of the crime. Although a separate notice of motion or indictment was preferable, the accused was properly detained and before the Court on the contempt proceeding with written particulars of the charge. The jurisprudence clearly established that the statutory contempt provisions did not oust the common law jurisdiction of the superior court to deal with contempt pursuant to s. 9 of the Code. This conclusion applied equally to situations where a witness failed to appear in answer to a subpoena as contemplated by s. 708. The sentence imposed was not unfit.

R. v. Asselin, [2019] M.J. No. 245, Manitoba Court of Appeal, D.M. Cameron, C.J. Mainella and K.I. Simonsen JJ.A., September 19, 2019. Digest No. TLD-October282019002