500-10-000146-926

PROVINCE OF QUÉBEC

MONTRÉAL REGISTRY

No: 500‑10‑000146‑926

(505‑01‑004890‑899)

CORAM: THE HONOURABLE MICHAUD, C.J.Q.

MAILHOT

NUSS, JJ.A.

CONSTANT GAUDREAULT,

APPELLANT - accused

HER MAJESTY THE QUEEN,

RESPONDENT - prosecutrix

500-10-000269-926

505-01-003144-900

CONSTANT GAUDREAULT,

APPELLANT - accused

HER MAJESTY THE QUEEN,

RESPONDENT - prosecutrix

OPINION OF NUSS, J.A.

The Appellant comes before our Court with two appeals. The first is from a conviction on two counts of having committed an offence in contravention of Section 127 of the Criminal Code by having disobeyed an order of the Superior Court enjoining him from communicating with his ex-wife. The second appeal is from a conviction on an indictment containing seven counts, six of which relate to having contravened s.145(3) of the Criminal Code by failing to comply with the condition of his undertaking, upon which he was at large pending sentence, which forbade him from coming within 100 meters of his ex-wife and the seventh count is for having contravened s.264.1(1)(a) of the Criminal Code by threatening his ex-wife with death or grievous bodily harm.

Appellant, a lawyer, was by various orders of the Superior Court in 1988 and 1989 enjoined from communicating with his ex-wife and from harassing her. There was a multitude of proceedings both civil and criminal spanning a period of approximately one year. On September 13, 1989 the Superior Court (Fréchette, J.) issued an order against Appellant providing, inter alia, as follows:

"DÉFEND au défendeur de communiquer avec la demanderesse de quelque façon que ce soit, par téléphone, correspondance, entrevue ou autrement, sauf au cas où la demanderesse elle-même, pour des raisons graves et concernant l'enfant, communiquerait avec le défendeur."

On October 23, 1989 Appellant appeared on charges under s.127 of the Criminal Code which are stated as follows:

1. -À Delson, district de Longueuil, entre le 13 septembre et le 15 octobre 1989, Constant Gaudreault a sans excuse légitime, désobéi à une ordonnance légale soit un jugement de la Cour Supérieure de l'Honorable Juge Raynald Fréchette dans le dossier portant le numéro 505-12-001747-883 du juge Raynald Fréchette en communiquant avec Mme Ginette Vincent, commettant ainsi un acte criminel prévu à l'article 127(1) du code criminel;

2. -À St-Lambert, district de Longueuil, entre le 13 septembre et le 15 octobre 1989, Constant Gaudreault, a sans excuse légitime, désobéi à une ordonnance légale soit un jugement de la Cour supérieure de l'Honorable Juge Raynald Fréchette dans le dossier portant le numéro 505-12-001747-883 du juge Raynald Fréchette, en communiquant avec Mme Ginette Vincent, commettant ainsi un acte criminel prévu à l'article 127(1) du code criminel.

Appellant pleaded guilty on November 3, 1989, before Morier J. of the Court of Quebec (criminal jurisdiction). He was represented by his counsel Mr. Lawrence Corriveau. Morier J. postponed sentencing but in the interim, pursuant to s.518(2) of the Criminal Code, ordered Appellant to be released from custody upon his giving an undertaking with conditions amongst which was the one not to come within one hundred meters distance of his ex-wife. Appellant gave the undertaking and was released from custody. Appellant appeared for sentencing on January 30, 1990. It was postponed to September 1990.

On July 6, 1990 Appellant appeared on charges under s.145(3) of the Criminal Code in which three counts were set out alleging that he had on three different dates failed to comply with the condition of the undertaking upon which he was released by having come within a distance of less than one hundred meters of his ex-wife. On the conclusion of the preliminary inquiry on July 18, 1990 he was committed to trial on six counts of having failed to comply with the condition of the undertaking and on one count of having made threats of death or serious bodily harm against his ex-wife contrary to s.264.1(1)(a) of the Criminal Code.

On September 13, 1990 Appellant, as on all other occasions he appeared in court, was represented by counsel. He pleaded guilty to all counts before Dionne J. and on September 14, 1990 was sentenced to two months in prison to be served discontinuously and to two years probation.

On October 22, 1990 Appellant was sentenced to 3 years probation and one day in prison by Morier, J. with respect to the charges to which he pleaded guilty on November 3, 1989 of having contravened s.127 of the Criminal Code.

On July 9, 1992 Fish, J. of our Court gave leave to appeal after the expiry of the delays from the conviction of having infringed s.127. (76 C.C.C.(3^rd)188). On August 12, 1992 permission was given by Tyndale, J. of our Court to appeal the conviction of having violated s.145(3) and 264.1(1)(a) of the Criminal Code. It was ordered that the two appeals be joined for hearing.

Permission was also granted by Fish J. to seek leave to appeal the sentence of Morier J. before our Court beyond the delays. Appellant at the hearing abandoned this recourse.

Appellant raises the following grounds of appeal.

(1) Morier J. had no jurisdiction to hear the charge under s.127 of the Criminal Code nor to accept a guilty plea because the charge was an absolute nullity in that there is a provincial law which expressly deals with the manner of proceeding regarding alleged violations of orders of the Superior Court. Appellant asked that he be allowed to withdraw his guilty plea.

(2) Since according to Appellant the charge under s.127 and his plea of guilty were absolutely null, so was the order of release of Morier J. subject to Appellant giving an undertaking with conditions as were the undertaking and conditions themselves including the one whereby he was to keep a distance of at least one hundred meters from his ex-wife.

(3) The order of Morier J. and the condition of the undertaking given by Appellant being nullities the charges under s. 145(3) are equally null and have no basis in law.

(4) Subsidiarily Appellant contended that Dionne J. should not have accepted the guilty plea on September 13, 1990 because Appellant did not understand the meaning of the charges under s.145(3). He asked that he be allowed to replace the plea with one of "not guilty" and that a new trial be ordered.

THE FIRST APPEAL

Section 127 of the Criminal Code reads as follows:

127. Everyone 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 a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

... (my underlining)

127. Quiconque, sans excuse légitime, désobéit à une ordonnance légale donnée par un tribunal judiciaire ou par une personne ou un corps de personnes autorisé par une loi à donner ou décerner l'ordonnance, autre qu'une ordonnance visant le paiement d'argent, est, à moins que la loi ne prévoie expressément une peine ou autre mode de procédure, coupable d'un acte criminel et passible d'un emprisonnement maximal de deux ans.

... (mes soulignés)

If there is a law which expressly provides a punishment or other mode of proceeding with respect to the disobedience of a court order, then the person who it is alleged has committed the disobedience cannot be convicted of contravening s.127.

The Code of Civil Procedure of Quebec contains inter alia the following provisions:

CHAPTER III

POWERS OF COURTS AND JUDGES

...

SECTION II

POWER TO PUNISH FOR CONTEMPT OF COURT

49. The courts or judges may condemn any person who is guilty of contempt of court.

50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.

In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.

51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding one year.

Imprisonment for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.

CHAPITRE III

DES POUVOIRS DES TRIBUNAUX ET DES JUGES

...

SECTION II

POUVOIR DE PUNIR POUR OUTRAGE AU TRIBUNAL

49. Les tribunaux et les juges peuvent prononcer des condamnations contre toute personne qui se rend coupable d'outrage au tribunal.

50. Est coupable d'outrage au tribunal celui qui contrevient à une ordonnance ou à une injonction du tribunal ou d'un de ses juges, ou qui agit de manière, soit à entraver le cours normal de l'administra-tion de la justice, soit à porter atteinte à l'autorité ou à la dignité du tribunal.

En particulier, est coupable d'outrage au tribunal l'officier de justice qui manque à son devoir, y compris le shérif ou huissier qui n'exécute pas un bref sans retard ou n'en fait pas rapport ou enfreint, en l'exécutant, une règle dont la violation le rend passible de sanction.

51. Sauf dans les cas où il est autrement prévu, celui qui se rend coupable d'outrage au tribunal est passible d'une amende n'excédant pas cinq mille dollars ou d'un emprisonnement pour une période d'au plus un an.

L'emprisonnement pour refus d'obtempérer à une ordonnance ou à une injonction peut être imposé derechef jusqu'à ce que la personne condamnée ait obéi.

Respondent submits that when the disobedience complained of is persistent and in open defiance of a Court order,then what might have been a civil matter becomes a criminal one and s.127 of the Criminal Code may then be invoked. Reliance is placed on the recent Supreme Court decision in United Nurses of Alberta v. R. [1992] (1) S.C.R. 901, in particular the opinion of Madam Justice McLachlin who wrote:

"It is my view that a clear distinction exists between civil and criminal contempt and that the law of criminal contempt is sufficiently certain to meet the requirements of fundamental justice. The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt.

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516,at p. 527, per Kellock J.:

The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.

What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole": B.C.G.E.U. v. British Columbia (Attorney General), supra, at p. 237, per Dickson C.J., Lamer, Wilson, LaForest L'Heureux-Dubé JJ. concurring. The gravamen of the offence is not actual or threatened injury to persons or property; other offenses deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court."(pp.931-932)

(my underlining)

There is a fundamental difference between the matter before us and the United Nurses case in that in the latter case the accused were not charged with having violated s.127 of the Criminal Code. They were charged with criminal contempt by virtue of the exercise of the inherent power of the court. There are other instances where a Superior Court has used its inherent power to punish for criminal contempt.[1] In the case before us Appellant was not charged with criminal contempt of court but rather with the contravention of s.127 of the Criminal Code. In my view the United Nurses case is not applicable.

In the case of R. v. Clément [1981] (2) S.C.R. 468 the Supreme Court analyzed s.127 with respect to the inherent power of the court to punish for contempt. The issue to be decided was whether either the Rules of the Court of Queen's Bench of Manitoba or the Court's inherent power to punish for contempt were measures which came within the definition of "punishment or other mode of proceeding expressly provided by law" so as to remove the availability of s.127 of the Criminal Code or render it inoperative in the event that there was conduct which amounted to contempt. The Supreme Court came to the conclusion that the inherent power to punish for contempt did not fall within the exception set out in s.127 and therefore even if conduct was of a nature to constitute contempt, a charge could be laid under s.127. The case turned on the finding that the inherent power to punish for contempt and the measures set out in the Rules of Court of Queen's Bench of Manitoba did not come within the exception "punishment or other mode of proceeding... expressly provided by law".

In my view articles 49 et seq. C.C.P. set out "a punishment or other mode of proceeding" with respect to a person who it is alleged has disobeyed an order of the Superior Court. The Code of Civil Procedure was enacted by the National Assembly of Quebec and there can be no question but that it comes within the definition of the words "expressly provided by law" set out in s.127 of the Criminal Code.

The violation of the Superior Court order of Fréchette J. prohibiting Appellant from communicating with his ex-wife could have been the object of proceedings under Sections 49 et seq. C.C.P. and accordingly the charge under s.127 of the Criminal Code should have been dismissed.[2]

I mention in passing that articles 49 et seq. C.C.P. have in the past been invoked where serious and persistent violation of court orders of a nature to bring the administration of justice into disrepute was alleged, Charbonneau, Pépin & al. v. P.G.Q.[3] and C.T.C.U.M. v. Syndicat du transport de Montréal [4] In the latter decision there is a discussion as to whether the contempt was criminal or civil and whether the Superior Court had jurisdiction if it was criminal. The proceedings were taken under articles 49 et seq. C.C.P. Our Court reversed the Superior Court judgment and decided that the latter had jurisdiction to hear the case. When the matter proceeded to trial respondents were condemned to imprisonment and/or fines.[5]

For the above reasons I would allow Appellant to withdraw his guilty plea; quash his conviction as of today of having contravened s.127 of the Criminal Code and enter a verdict of acquittal on both counts.

THE SECOND APPEAL

Having regard to the reversal of the conviction under s.127 of the Criminal Code, the second appeal now raises the question of whether, the undertaking given by Appellant in November 1989 with the condition that he keep a distance of 100 meters from his ex-wife (pursuant to the order of release of Morier J.) if not complied with in May and June 1990 gave rise to the penal consequences set out in s.145 (3) of the Criminal Code which provides that:

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance directed by a justice or judge, and every person who is bound to comply with a direction ordered under subsection 515(12) or 522(2.1), and who fails, without lawful excuse, the proof of which lies on that person, to comply with that condition or direction, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(3) Est coupable:

a) soit d'un acte criminel et passible d'un emprisonnement maximal de deux ans;

b) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire,

quiconque, étant en liberté sur sa promesse remise ou son engagement contracté devant un juge de paix ou un juge et étant tenu de se conformer à une condition de cette promesse ou de cet engagement fixée par un juge de paix ou un juge, ou étant tenu de se conformer à une ordonnance prise en vertu du paragraphe 515(12) ou 522(2.1), omet, sans excuse légitime, dont la preuve lui incombe, de se conformer à cette condition ou ordonnance.

Appellant contends that the charge and conviction under s.127 were an absolute nullity; that they were non-existent in law and hence nothing which results from those charges, including the order of release of Morier J. and the condition in the undertaking given by Appellant could attract legal consequences. Morier J., according to Appellant, lacked jurisdiction to accept the guilty plea.

It took Appellant more than two years to discover and raise the alleged defect. It is difficult to understand how Appellant can now claim that the interpretation of s.127 in this case, was so obvious that the trial judge should not have accepted a plea of guilty having regard to the number of times Appellant appeared before the court over a period of approximately one year; on each occasion, represented by counsel, without ever raising an objection to the charge under s. 127.

It is settled law that orders of a Court or Judge regardless of doubts or challenges as to their validity, and regardless of how flawed they may be, must be obeyed until set aside, or modified.

The Supreme Court decision in Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 is relevant. Taylor was convicted for contempt of court for having violated a court order issued under s. 13(1) of the Canadian Human Rights Act S.C. 1976-1977 c.33. The order enjoined him from communicating telephone messages of "hate propaganda".[6] He contested the conviction and sentence on a number of grounds, amongst which was the contention that s. 13(1) was invalid in that it infringed the guarantee of freedom of expression set out in s. 2(b) of the Canadian Charter of Rights and Freedoms. The judges of the Supreme Court were unanimous in dismissing his appeal from the conviction for contempt. They were divided as to whether there was an infringement of the Charter rendering s.13(1) of the Canadian Human Rights Act invalid and unconstitutional. The majority ruled that s.13(1) was valid legislation in that although there was infringement of the guarantee of freedom of expression, it was justified by the application of s.1 of the Charter which permits such infringement if it is a reasonable limit and justified in a free and democratic society. The minority however, found that s.13(1) was invalid because the infringement of the guarantee of freedom of expression was not saved by the application of s.1 of the Charter. McLachlin J. writing for the minority then had to consider what was the effect of an order and a conviction for contempt for disobeying the order based on what was later determined (by the minority) to be an invalid and unconstitutional section of the statute. She ruled that the declaration of invalidity was no defence to having violated the order of the court. The following excerpts from her opinion are particularly relevant to the matter before us.

"VI - The Orders -

"Having found s.13(1) to be invalid it is not necessary to consider whether the Tribunal's order itself offended s.2(b) of the Charter by its overbreadth. This leaves for consideration the question of the effect of the unconstitutionality of s.13(1) of The Canadian Human Rights Act on the contempt proceedings in the Federal Court."

(my underlining)

(p.972

. . .

"In my opinion, the 1979 order of the tribunal entered in the judgment and order book of the Federal Court in this case continues to stand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders, because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizen's safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them."

(p.974)

. . .

"... For the purposes of the contempt proceedings it must be considered to be valid until set aside by the legal process. Thus the ultimate invalidity of the order is no defence to the contempt citation"

(my underlining)

(p.974

Although the majority did not have to deal with the issue because of the conclusion it reached regarding the validity and constitutionality of s.13(1), it did with regard to another ground invoked by Taylor (apprehension of bias in the Tribunal) express the same view when Dickson, C.J.C. cited with approval the following excerpt from the judgement of the Federal Court of Appeal.

"The duty of a person bound by an order of a court is to obey that court order while it remains in force regardless of how flawed he may consider it or how flawed it may in fact be. Public order demands that it be negated by due process of the law not by disobedience."

(p.942)

In my opinion the same principles as those enunciated above by the Supreme Court in the Taylor case apply to a condition in an undertaking given pursuant to the directions of a judge such as we have in the matter before us. They too must be complied with while they remain in force regardless of how flawed they may be.

The order of Morier, J. of November 3, 1989 upon which Appellant was set at liberty pending sentencing subject to his giving an undertaking with the condition to stay at least one hundred meters distance from his wife was rendered by a judge who had jurisdiction to hear the charge, to take the guilty plea and to order the release of Appellant. In this particular case I see no more justification in Appellant's failing in May and June 1990 to comply with the condition in the undertaking because we have now overturned the conviction on the ground stated in this opinion than if we had overturned it on other grounds. Appellant argues that articles 49 et seq. are matters of public law of which a court should take judicial notice and therefore, ipso facto, the charge under s.127 against Appellant was an absolute nullity and there was no jurisdiction to accept the guilty plea.

A later judgment setting aside the conviction which gave rise to the undertaking does not justify a violation of the condition of the undertaking which occurred prior to the conviction being set aside

Although in my view the condition in the undertaking by Appellant had to be complied with and it makes no difference in determining the validity of the charges in the present appeal, whether the charge pursuant to s.127 should have been dismissed because of an absolute nullity or because it turned out to be ill founded on other grounds, it is my opinion that the charge was not an absolute nullity. It charged an offence under the Criminal Code. Indeed if a charge is defective and not framed according to the requirements of the Criminal Code the failure to challenge it in first instance by a motion to quash would, appear to foreclose the applicant from raising an objection for the first time in the Court of Appeal[7]. Although Appellant was represented by counsel at all stages of the proceedings, no motion to quash was taken. No issue of a defect or a nullity in the charge was raised. Even if he did not raise the issue in a Motion to Quash, it was up to Appellant at some stage to demonstrate before the trial judge, as he did before our Court, that articles 49 et seq. C.C.P. applied to the order of the Superior Court which he was charged with having disobeyed and that consequently, because of the exception set out in s.127 of the Criminal Code, he should be acquitted. The fact that a judge has judicial notice of public statutes does not relieve the parties appearing before him of bringing the statute in question to his attention and presenting the arguments which may lie in the circumstances. Because a judge has judicial notice of public statutes does not mean that he loses his jurisdiction if in circumstances such as those prevailing in this instance, he does not proprio motu apply the provisions of all statutes. Counsel, who is also expected to know the public statutes, should bring the relevant ones to the attention of the Court. The misinterpretation of a statute or the failure to apply a particular section of a statute which results in a conviction does not mean that the judge rendered his decision without jurisdiction or on a charge which is a nullity.

Had the question of law been raised before the judge in first instance hearing the charge under s.127 and had the latter concluded that articles 49 et seq. C.C.P. did not come within the exception set out therein, this interpretation, although erroneous in my respectful view, should result in a reversal in appeal not because the trial judge lacked jurisdiction or because the charge was an absolute nullity but because the trial judge would have convicted based on an erroneous interpretation and/or application of the relevant statutes.

A further ground was raised by Appellant in the inscription in appeal and in his factum. It relates to the count which was added at the conclusion of the preliminary inquiry on July 18, 1990 and to which Appellant ultimately pleaded guilty on September 13, 1990. Appellant claims that count 7 was not related to the other charges in the information and should not have been added to them. At the preliminary inquiry the judge came to the conclusion that there was evidence to support the charge set out in count 7 which reads as follows:.

"7.À Brossard, district de Longueuil, le ou vers le 12 juin 1990, Constant GAUDREAULT, a sciemment proféré, transmis ou fait recevoir par une personne, une menace de causer la mort et/ou des blessures graves à Ginette Vincent, commettant ainsi un acte criminel prévu à l'article 264.1(1)(a) et (2) du Code criminel."

The authority to add charges not set out in the information but disclosed in evidence adduced at the preliminary inquiry is set out in Section 548 (1)(a) of the Criminal Code:

548. (1) When all the evidence has been taken by the justice, he shall:

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect to the same transaction, order the accused to stand trial; or

...

(my underlining)

548. (1) Lorsque le juge de paix a recueilli tous les témoignages, il doit:

(a) renvoyer l'accusé pour qu'il subisse son procès, si à son avis la preuve à l'égard de l'infraction dont il est accusé ou de tout autre acte criminel qui découle de la même affaire est suffisante;

...

(mes soulignés)

Was the added charge in count 7 in respect of the same transaction? Count 3, of the original charges, which, except for the date and place, is identical to the charges in counts 1, 2, 4, 5 and 6 reads as follows: (my underlining)

"3.À Brossard, district de Longueuil, le ou vers le 12 juin 1990, Constant GAUDREAULT, étant en liberté sur sa promesse remise le 3 novembre 1989, devant le juge Gilbert Morier dans les dossiers portant les numéros 505-01-004890-899 et al., et étant tenu de se conformer à une condition de cette promesse, a omis, sans excuse légitime de se conformer à cette condition, soit: interdiction de s'approcher à moins de 100 mètres de tout endroit où pourrait se trouver Ginette Vincent, commettant ainsi un acte criminel prévu à l'article 145(3)(a) du Code criminel."

The evidence at preliminary inquiry disclosed that it was on the occasion of approaching his ex-wife, on June 12, 1990, as alleged in count 3, that the Appellant made the threat alleged in count 7. It is my opinion that count 7 of the indictment sets out a charge with respect to the same transaction as the other charges in the indictment in particularly the one set out in count 3 and was properly added to the charges at the conclusion of the preliminary inquiry when Appellant was committed to trial, it satisfies the condition of s.548(1)(a)[8]

Appellant did not pursue his subsidiary ground asking for a new trial on the ground that he did not fully understand the charge when he pleaded guilty..

In summary, my conclusions with respect to the second appeal are as follows:

1 - Appellant was released pending sentencing subject to his agreeing to abide by the condition in the undertaking. The condition in the undertaking given by Appellant had to be complied with while it remained in force regardless of how flawed it may have been;

2 - The charges laid against Appellant for having failed to comply with the condition in the undertaking were valid and his plea of guilty was properly accepted;

3 - The fact that the conviction of Appellant with respect to the charge of having contravened s. 127 has now been overturned on the ground that articles 49 et seq. C.C.P. come within the exception of s. 127 of the Criminal Code does not affect the validity of the condition in Appellant's undertaking as at the date of its having been contravened, nor does it provide a defence regarding the charges against him under s.145(3) of the Criminal Code;

4 - Count 7 of the indictment which charged Appellant with having threatened his ex-wife with death and/or grievous bodily harm was a charge in respect of the same transaction as the others set out in the complaint, particularly count 3, and therefore the Judge at preliminary inquiry properly added it to the charges on which Appellant was committed to trial.

For these reasons I would dismiss Appellant's appeal from his conviction on six counts of having contravened s.145(3) and one count of having contravened s.264.1(1)(a) of the Criminal Code .

JOSEPH R. NUSS, J.A.

[1]Poje v. The Attorney General for British Columbia [1953] (1) S.C.R. 516. R. v. United Fishermen & Allied Workers Union, [1968] 2C.C.C.257 (B.C.C.A.); British Columbia Telephone Co. v. Telecommunications Workers Union [1981], 121 D.L.R. (3d) 326 (B.C.); New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers [1977], 16 N.B.R.(2d)361(C.A.). The Attorney General of Nova Scotia and Miles et al. 1 C.C.C.(2d)564.

[2]See Regina v. Dawson 100 C.C.C. [3rd] 123 and Clément v. R. 90 C.C.C. [2nd] 449.

[6]From the opinion of Dickson C.J.C. at p.902

[7]Regina v. Anderson [1977] 2 S.C.R. 621

[8]R. v. Goldstein [1988] 42 C.C.C.(3d) 548 (Ont.C.A.)