Supreme Court of Canada holds vigorous outspoken good faith criticism of courts and decisions not contempt.
29, October 29, 2016 - Filed in: Court Cases
"N‑D was the spokesperson for a student organization that held protests and formed picket lines in Quebec’s various post‑secondary institutions over proposed increases in university tuition fees. M, a student, obtained a provisional interlocutory injunction that mandated free access to the facilities in which classes for M’s program were held. In a television interview he gave with another student leader, N‑D stated that such attempts to force students back to class do not work, that a minority of students use the courts to circumvent the majority’s collective decision to go on strike, and that picket lines are an entirely legitimate means to ensure respect of the vote to strike. M filed a motion for contempt against N‑D for his comments in the interview. N‑D was found guilty of contempt of court under art. 50 para. 1 of the Code of Civil Procedure and sentenced to 120 hours of community service to be completed within six months under the supervision of a probation officer. The Court of Appeal set the conviction and sentence aside and entered an acquittal."
The S.C.C. held (with joint reasons for judgment by Abella and Gascon JJ., with whom three judges concurred; concurring reasons by Moldaver J.; dissenting reasons by Wagner J. (with whom two other judges concurred) that the appeal is dismissed.
Justices Abella and Gascon wrote as follows (at paras. 14-21, 24-28, 44):
" On the merits of the contempt motion, Jacques J. concluded that because Émond J.’s order had not been served on Mr. Nadeau-Dubois, he could not be found guilty of contempt of court under art. 761. However, he found him guilty under that part of art. 50 para. 1, which creates the offence of contempt for acts that interfere with the authority or dignity of the court. Jacques J. concluded that Mr. Nadeau-Dubois’ knowledge of the injunction could be inferred from the fact that ASETAP, which was served with the order, was a member of CLASSE at the time of its issuance. Since Mr. Nadeau-Dubois was CLASSE’s spokesperson at the time, his knowledge could be inferred. Knowledge could also be inferred from his words in the interview, and from his assumed knowledge of other unspecified injunctions that had been issued by other courts around the same time. His statements reflected an intention to obstruct justice or undermine judicial authority. And by encouraging the contravention of injunctions generally, his words had the effect of encouraging the contravention of Émond J.’s injunction.
Mr. Nadeau-Dubois was sentenced to 120 hours of community service, to be completed within six months under the supervision of a probation officer.
The Quebec Court of Appeal unanimously allowed the appeal. Dufresne J.A., writing for the court, concluded that the statements made during the television interview fell short of establishing that Mr. Nadeau-Dubois knew of the existence and content of Émond J.’s order. The question to which Mr. Nadeau-Dubois was responding in the interview dealt with an injunction granted against a CEGEP, not with the order issued on May 2nd by Émond J. against the Université Laval. Nor was it appropriate to infer knowledge of that specific order from Mr. Nadeau-Dubois’ general reference to [translation] “such attempts to force students back to class”.
The Court of Appeal agreed with Jacques J. that art. 761 did not apply because Mr. Nadeau-Dubois was neither named nor designated in the injunction. The only issue, therefore, was whether Mr. Nadeau-Dubois was guilty under art. 50 para. 1. The court concluded that the mens reawas not met because it was not proven beyond a reasonable doubt that Mr. Nadeau-Dubois knew of the May 2nd injunction. In those circumstances, it would be improper to impute an intention to Mr. Nadeau-Dubois to encourage others to breach an order of which he had no knowledge. As for the actus reus, the court found that in any event, the words spoken were ambiguous, and that it could not therefore conclude beyond a reasonable doubt that these words incited or encouraged persons to violate the injunction. The conviction and sentence were consequently set aside and an acquittal entered.
We agree with the conclusions of the Court of Appeal. Jacques J. made both legal and palpable and overriding errors that justified the Court of Appeal’s intervention...
In Quebec, the power to find an individual guilty of contempt of court is an exceptional one. Courts have consistently discouraged its routine use to obtain compliance with court orders. It is, in short, an enforcement power of last resort: Caron v. Paul Albert Chevrolet Buick Cadillac inc., 2016 QCCA 564, at paras. 25-26 (Can LII), citing Carey v. Laiken,  2 S.C.R. 79, at para. 36; Centre commercial Les Rivières ltée c. Jean bleu inc., 2012 QCCA 1663, at paras. 7-8 (CanLII).
Contempt of court is the only civil proceeding that may result in a penalty of imprisonment in Quebec: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.,  2 S.C.R. 1065, at p. 1076; art. 1 of the Code of Civil Procedure; art. 62 of the new Code of Civil Procedure, CQLR, c. C-25.01, which came into force on January 1, 2016. Because of the potential impact on an individual’s liberty, the formalities for contempt proceedings must be strictly complied with — clear, precise and unambiguous notice of the specific contempt offence for which he or she is being charged must be given to the accused, and the elements required for a conviction must be proven beyond a reasonable doubt: Guay v. Lebel, 2016 QCCA 1555, at para. 8; Droit de la famille — 122875(2012), 29 R.F.L. (7th) 137 (Que. C.A.), at paras. 24 and 30, and Javanmardi v. Collège des médecins du Québec,  R.J.Q. 328 (C.A.), at para. 26, both citing Godin v. Godin (2012), N.S.R. (2d) 204 (C.A.), at para. 47; art. 53.1 of the Code of Civil Procedure; Céline Gervais, L’injonction (2nd ed. 2005), at p. 125; Vidéotron, at p. 1077, citing Imperial Oil Ltd. v. Tanguay,  C.A. 109. This insistence on formalism is especially important in the exceptional context of contempt proceedings brought by private parties.
In all cases of contempt, it is crucial that courts stay alert to the exceptional nature of their contempt powers, using it only as a measure of last resort. A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice: Centre commercial Les Rivières, at paras. 7 and 65-66; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA 155, at para. 26 (CanLII).
Both arts. 50 and 761 have been interpreted harmoniously with the common law: see, e.g., Vidéotron, at p. 1078; Trudel v. Foucher, 2015 QCCA 691, at para. 31 (CanLII); Chamandy v. Chartier, 2015 QCCA 1142, at paras. 26 and 31 (CanLII); Montréal (Ville de) v. Syndicat des cols bleus regroupés de Montréal (SCFP), section locale 301, 2006 QCCS 5273, at para. 117 (CanLII); Gougoux v. Richard, 2005 CanLII 37770 (Que. S.C.), at paras. 28-31.
The offence of contempt of court at art. 50 para. 1 has two branches. Where a particular court order or process is at issue, both branches require actual or inferred knowledge of it. Actual knowledge may be shown by evidence that a court order was personally served on the person accused of contempt, or it can be inferred from the surrounding circumstances or from the individual’s conduct: Estrada v. Young, 2005 QCCA 493, at para. 11 (CanLII); Zhang v. Chau (2003), 229 D.L.R. (4th) 298 (Que. C.A.), at paras. 30-31. But actual knowledge cannot be inferred from the conduct of others or from service of the court order on persons other than the accused: Syndicat des cols bleus regroupés de Montréal, at para. 128 (CanLII). Moreover, where a court order is alleged to have been breached, it must state clearly and unequivocally what is required or prohibited. This ensures that an individual will not be convicted of contempt if the court order is vague: Paul Albert Chevrolet, at para. 26; Carey, at para. 33.
The first branch relates to disobeying any process or order of the court or of a judge. The person accused of contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey, at para. 35.
The second branch of art. 50 para. 1 is different. The actus reus is made out where a person “acts in such a way as to interfere with the orderly administration of justice” or “to impair the authority or dignity of the court”. The acts done, or the words complained of must either succeed in doing so, or create a serious or substantial risk of having this effect: Adrian Popovici, L’outrage au tribunal (1977), at p. 41; R. v. Kopyto (1987), 62 O.R. (2d) 449 (C.A.), at p. 512, citing Attorney-General v. Times Newspapers Ltd.,  3 All E.R. 54 (H.L.), at pp. 66-67, per Lord Morris of Borth-y-Gest. Encouraging third parties to breach a court order is just one example of what may constitute the actus reus for this branch of civil contempt: Denis Ferland, “La Cour suprême et l’outrage au tribunal en matière d’injonction: Baxter Travenol Laboratories of Canada Ltd. c. Cutter (Canada Ltd.)” (1985), 45 R. du B. 462, at p. 464; Borrie & Lowe: The Law of Contempt (4th ed. 2010), at p. 145.
The mens rea for this form of contempt, at common law and in the law of Quebec, is an intention to “vilify the administration of justice”, to “destroy public confidence therein”, or to “excite disaffection against it”: Kopyto, at p. 514, citing Boucher v. The King,  S.C.R. 265, at p. 344; Re Ouellet (No. 1) (1976), 28 C.C.C. (2d) 338 (Que. S.C.), at pp. 356-57; Gougoux, at para. 30. Good faith criticism of judicial institutions and their decisions, even where vigorous and outspoken, falls short of this threshold: Kopyto, at p. 502, per Dubin J.A., dissenting in part; Prud’homme v. Prud’homme , 1997 CanLII 8253 (Que. S.C.), at paras. 8-9.
The events that unfolded in the spring of 2012 led to several judicial proceedings, of which the present case was but one. The role of the courts was to deal with particular and specific legal issues. This appeal is limited to determining whether the charges brought by Mr. Morasse against Mr. Nadeau-Dubois met the strict rules governing contempt of court. To consider that anything broader was at play in the contempt proceedings of Mr. Morasse would, in our view, go beyond the actual legal issues, and risk punishing the accused for who he was rather than what he was charged with."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.