R. v. Upshaw

R. v. Upshaw

The court held that Upshaw was entitled to a contempt show-cause hearing rather than immediate instanter punishment; the hearing could be conducted by the presiding judge, must comply with natural justice (notice, opportunity for counsel, presumption of innocence, proof beyond a reasonable doubt), allow raising duress, and its timing can be adjourned without affecting the co-accused’s trial.

Citation
2012 NSPC 112
Parties
Contemnor / Respondent in Contempt Proceedings: Jerricho Upshaw; Prosecution: Her Majesty the Queen (Crown); Youth Accused / Affected Party: T.(B.)
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
20 September 2012
Procedural Posture
Contempt Proceedings (common Law Contempt in the Face of the Court) / Pre Hearing Procedural Decision (show Cause Hearing Scheduled)
Outcome
Contempt show-cause ordered; hearing scheduled; later finding of contempt entered after contemnor elected not to show cause; sentencing submissions scheduled.
Legal Topics
Contempt in the Face of the Court, Show Cause Procedure, Right to Counsel and Natural Justice, Presumption of Innocence and Burden of Proof, Duress as a Defence and Sentencing Consideration, Timing and Manner of Contempt Proceedings
Source Language
English
Contempt of Court Criminal Law Youth Justice Charter of Rights and Freedoms Contempt in the Face of the Court Show Cause Procedure Right to Counsel and Natural Justice Presumption of Innocence and Burden of Proof +2 more

Case Brief

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Parties

Jerricho Upshaw

Contemnor / Respondent in Contempt Proceedings

Her Majesty the Queen (Crown)

Prosecution

T.(B.)

Youth Accused / Affected Party

Procedural Posture

Contempt Proceedings (common Law Contempt in the Face of the Court) / Pre Hearing Procedural Decision (show Cause Hearing Scheduled)

Legal Issues

  1. 1 Whether the contemnor could be summarily punished instanter or was entitled to a show-cause hearing
  2. 2 Whether the proceedings must meet principles of natural justice including notice and opportunity for counsel
  3. 3 Whether the trial judge could preside over the contempt show-cause (jury right issue)

Ratio Decidendi

The court held that Upshaw was entitled to a contempt show-cause hearing rather than immediate instanter punishment; the hearing could be conducted by the presiding judge, must comply with natural justice (notice, opportunity for counsel, presumption of innocence, proof beyond a reasonable doubt), allow raising duress, and its timing can be adjourned without affecting the co-accused’s trial.

Court Disposition

Contempt show-cause ordered; hearing scheduled; later finding of contempt entered after contemnor elected not to show cause; sentencing submissions scheduled.

Orders

  • Contemnor entitled to show-cause hearing; hearing scheduled for November 23, 2012 (per counsel notification)
  • Court to conduct contempt show-cause hearing (judge to preside) in accordance with principles of natural justice