III. CONTEMPT OF COURT

Linda Fuerst*

A. Introduction

Critics have condemned the power to punish for contempt in Canadaas "antiquated and autocratic",' "remedial and coercive", 2 and"complex and ill-defined". 3 While not all have been so harsh, mostagree that the law in its present state is vague, confusing and in need ofreform.4

The contempt provisions in Bill C-19 5 address many defects in thecurrent law. The most significant revision is the amendment of section 8of the Criminal Code, 6 abolishing the common law power of judges topunish for contempt.' The Bill adopts the recommendation made by theLaw Reform Commission of Canada that steps be taken to eliminate theanomaly created by section 8 and to enumerate and define the forms ofcriminal contempt. Section 8 would be amended to restrict liability toone of three offences created in the Code, 9 with the exception of thepower to impose punishment for non-compliance with a judicial order ina civil matter.' 0

* Law Reform Commission of Canada. This article does not necessarily reflect theCommission's views.

1 Cavanaugh, Civil Liberties and the Criminal Contempt Power. 19 CRIM. L.Q.

349, at 361 (1977).2 Watkins, The Enforcement of Conjrmity to Law Through Contempt Proceed-

ings, 5 OSGOODE HALL L.J. 125, at 139 (1967).3 Speech by The Honourable Mark MacGuigan, Lawyers' Club of Toronto

Meeting, 9 Jan. 1984.4 See Coveney, Contempt of Court: Bulvark of Freedom or Lynch-Pin of

Tyranny?, 13 WESTERN ONT. L. REV. 157 (1974); Martin, Several Steps Backward: TheLaw Reform Commission of Canada and Contempt of Court, 21 WESTERN ONT. L. REV.307 (1983).

5 Criminal Law Reform Act, 1984, Bill C-19, 32nd Parl., 2d sess., 1983-84 (1streading 7 Feb. 1984) [hereafter cited as Bill C-19].

6 R.S.C. 1970, c. C-34.7 S. 8, as proposed in Bill C-19, cl. 6.8 LAW REFORM COMMISSION OF CANADA, CONTEMPT OF COURT, WORKING PAPER

20, at 48 (1977) [hereafter cited as WORKING PAPER 20]. According to the Commission,s. 8 is an anomaly in Canadian criminal law because it is the only remaining commonlaw offence. This is inconsistent with the basic principle that there must be a specificlegislative enactment prohibiting particular conduct before that conduct can become thesubject of a criminal prosecution.

9 See s. 131.11 (interference with judicial proceedings), s. 131.12 (affront tojudicial authority) and s. 131.13 (disruption of judicial proceedings), as proposed in BillC-19, cl. 33.

10 R.S.C. 1970, c. C-23, s. 10.

Bill C-19: Contempt of Court

B. Offences and Defences

The three offences to be defined in the Code correspond roughlywith the common law rule of sub judice and the common law offences ofcontempt in the face of the court and of contempt by scandalizing thecourt.

1. Inteiference with Judicial Proceedings

(a) The Offence

The Bill creates an offence of knowingly making a "publication"that creates a substantial risk that the course of justice in a pending civilor criminal proceeding would be seriously impeded or prejudiced.""Publication" is broadly defined as "any speech, writing, broadcast orother communication made by any means that is addressed to the publicat large or any section of the public". 12 The Bill specifies when a civilproceeding, criminal proceeding or an order granted on appeal requiringa new trial is "pending". A criminal proceeding would be "pending"from the time of the accused's arrest without warrant, from the time ofthe issuance of an appearance notice, summons or warrant for arrest 13 orfrom the time of the commencement of the proceeding by the preferringof an indictment or bill of indictment, until the determination of theproceeding by verdict, sentence, discontinuance or by other disposal. 14

This offence resembles the common law rule of sub judice, whichempowers the courts to punish comments that may prejudice or interferewith the fair and impartial administration of justice. 15 Several aspects ofthis definition do not make significant changes to the present law. Forexample, requiring a "substantial risk" that the publication willseriously interfere with the course of justice is consistent with LordDiplock's comment in Attorney-General i. Times Newspapers Ltd. Inorder to constitute contempt, he said, the conduct must present "a realrisk as opposed to a mere possibility of interference with the dueadministration of justice".16 The requirement also reflects the viewexpressed by Hall J. in Attorney General for Manitoba v. Winnipeg Free

1' S. 131. 11, as proposed in Bill C-19, cl. 33.12 S. 13 1. 1, as proposed in Bill C-19, cl. 33.13 This is consistent with the definition of an "accused" in s. 448 of the Criminal

Code as including "a person to whom a peace officer has issued an appearance notice"or "a person arrested for a criminal offence".

1' Ss. 131.1 and 131.11, as proposed in Bill C-19, cI. 33.15 WORKING PAPER 20, supra note 8, at 37; S. ROBERTSON, COURTS AND THE

MEDIA 23 (1981).16 [197313 W.L.R. 298, at 320, [197313 All E.R. 54, at 75 (H.L.).

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Press Publishing Co., that a substantial interference with a fair trial mustbe established.' 7

However, the inclusion of the word "knowingly" in the definitionof the offence does change the present law, which requires only anintention to publish.' 8 This would prevent convictions when publishersare unaware of pending proceedings or of the risk created by publication.

The definition of a "pending" proceeding also answers the"traditionally vexing question . . . of determining the point in a givenproceeding at which the sub-judice [sic] rule begins to operate". 19 At thepresent time, whether the rule operates prior to arrest or the laying ofcharges is not clear.2 0 Stuart Robertson has advised that "when it isevident that a person is about to be arrested or that an information isabout to be sworn and a summons or warrant issued, a reporter would beprudent to ensure that any statements made will not interfere with a futureproceeding". 2 ' Thus, Bill C-19 introduces some precision to this area oflaw.

The law in its present state appears to extend the sub judice rule toappeal proceedings in criminal cases. 2 Unfortunately, the definition of"pending" in Bill C-19 makes it unclear whether the offence ofdisruption would continue to apply after the determination of a criminaltrial. The phrase "or other disposal" may mean the discharge of anaccused at the preliminary inquiry or a direction by the prosecutor to stayproceedings pursuant to section 508 of the Criminal Code. Alternatively,it could be interpreted to mean the determination of appeal proceedings.

The latter interpretation is consistent with a broad view of one of theprimary purposes of the sub judice rule, namely, that it is intended to

17 47 C.R. 48, at 50, 52 W.W.R. 129, at 130-31 (Man. Q.B. 1965). See also LAWREFORM COMMISSION OF CANADA, CONTEMPT OF COURT, REPORT 17, at 28 (1982)[hereafter cited as REPORT 17].

18 G. BORRIE & N. LOWE, THE LAW OF CONTEMPT 193 (1973); S. ROBERTSON,supra note 15, at 101; Martin, supra note 4, at 313; Shifrin, The Law of ConstructiveContempt and the Freedom of the Press, 14 CHITTY'S L.J. 281, at 293 (1966); WORKINGPAPER 20, supra note 8, at 39-40; Cavanaugh, supra note 1, at 355. See, e.g., AttorneyGeneral of Manitoba v. Winnipeg Free Press Publishing Co., id. at 51, 52 W.W.R. at131-32; R. v. Barker, 53 C.C.C. (2d) 322, at 337, [1980] 4 W.W.R. 202, at 218-19(Alta. C.A.); R. v. Vairo, 4 C.C.C. (3d) 274, at 276 (Qu6. C.S. 1982); McLeod v. St.Aubyn, [1899] A.C. 549 (P.C. Can.).

19 Martin, id. at 312. See also Watkins, supra note 2, at 142; Ziegel, SomeAspects of the Law of Contempt of Court in Canada, England, and the United States, 6McGILL L.J. 229, at 235-37 (1960); Brown, Some Contemporarv Problems in theEnglish Law Relating to Contempt, 15 C. DE D. 740, at 743 (1974).

20 Supra note 2, at 142-43. According to Professor Watkins, "the press ... mustact at its peril when reporting situations that appear to demand criminal prosecution, forif proceedings are in fact pending or imminent, then a conviction for contempt is a strongpossibility". See also R. v. Parke, [1903] 2 K.B. 432, at 437, [1900-03] All E.R. Rep.721, at 723; R. v. Daily Mirror, [1927] 1 K.B. 845, at 851, [1927] All E.R. Rep. 503, at505-06.

21 S. ROBERTSON, supra note 15, at 49.22 R. v. Davies, [1945] K.B. 435, [1945] 2 All E.R. 167; R. v. Bartlett, 131

C.C.C. 119 (Man. C.A. 1961).

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prevent courts, including appeal courts, from being prejudiced in the fairand impartial determination of cases. Humphreys J. expressed this viewinR. v. Davies:

It seems to me that the bringing before the minds of judges who have to try anappeal in a criminal case matters which they do not desire to know, and whichif brought to their attention are likely to embarrass them in the fair andimpartial consideration of the case, is wrong. Whether that is right or not, Icannot say. It is my own opinion and I express it as such, and I venture tothink that no judge with long criminal experience will fail to be able to recallinstances in which the publication of matters such as that to which I havereferred has had the effect of making the task of a judge extremely difficult,and no one has the right to publish matter which will have that effect. 23

Interpreting "or other disposal" to mean the end of a trial proceeding isconsistent with a narrow view of the rule's purpose, which is, that itexists to protect the judicial process from comments likely to influence atrial verdict. Presumably, courts of appeal, which mainly considerquestions of law, are unlikely to be influenced by inflammatorycomment:

It might be said that it is inconceivable that any court considering a purequestion of law could be affected by anything written in a newspaper aboutthe character of one of the parties in a civil or criminal case. It is, indeed,inconceivable that if one of the judges of such a court happened to have readthe particular newspaper in question, it could have the smallest effect uponhim.

21

If the phrase "or othei disposal" is interpreted according to thenarrow view of the purpose of the sub judice rule, comments publishedwhile an appeal is pending would not be prohibited, even though anotherprovision of Bill C-19 deems proceedings to be pending for any periodfor which an order requiring a new trial is in force. 25 This means that acourt hearing a new trial after an appeal would be insulated fromcomments published after the disposition of the appeal, but not fromcomments published while the appeal was pending. If this is the correctinterpretation of "pending", the section should be reconsidered, for itprovides incomplete protection to litigants and to a court hearing a newtrial. If the broader construction is correct, the definition of "pending"should be changed to make it clear that the rule extends to the end ofappeal proceedings.

(b) Defences

The Bill creates two "good faith" defences to a charge ofinterference with judicial proceedings. A person cannot be found guilty ifthe publication was a fair and accurate report of a public legal proceeding

23 Id. at 443, [1945] 2 All E.R. at 172.24 Id. at 441, [1945] 2 All E.R. at 171.25 Para. 131.11 (2)(c), as proposed in Bill C-19, cl. 33.

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and was published contemporaneously in good faith. Nor can aconviction follow if the publication was made as a discussion or as part ofa discussion in good faith of public affairs or other matters of generalpublic interest, and if the risk of impediment or prejudice was merelyincidental to the discussion. An accused could not rely on the firstdefence if a court had made an order for a hearing of those proceedings incamera or for non-publication.

Fair and accurate reporting in good faith of judicial proceedings hasbeen recognized as a defence under the existing law. 26 Unfortunately, themeaning of "good faith" is not entirely clear and it is not defined in theBill. 27 Professors Borrie and Lowe have interpreted "good faith" tomean "for the public good" and without "malafides". 28 The PhillimoreCommittee defined "good faith" in terms of an absence of malice andthe deliberate intention to cause prejudice.2 9 According to the LawReform Commission of Canada, the effect of the good faith defence isthat "the press is free to 'follow' or 'cover' a trial like any other publicevent . . . [provided it does not] make comments that might influencethe outcome of a trial, create a bias against one of the parties or affect theevidence to be presented". 30

Providing a defence where the risk of prejudice is incidental to agood faith discussion of matters of public interest is a new developmentin the Canadian law of contempt."' Although this defence appears to beaimed at limiting the scope of the offence of interference, in conformitywith the guarantee of freedom of thought, belief, opinion and expressionprovided by subsection 2(b) of the Charter, 32 the imprecise language usedin the provision may frustrate this intention. What does "good faith"mean? Are not all reports of judicial proceedings matters of "publicinterest" ?3 When will a substantial risk that the course of justice will beseriously impeded be characterized as "merely incidental" to adiscussion in good faith of public affairs? Determining in advance

26 G. BORRIE & N. LowE, supra note 18, at 66; WORKING PAPER 20, supra note 8,at 39, 41. See, e.g., R. v. Thibodeau, 23 C.R. 285, 116 C.C.C. 175 (N.B.Q.B. 1956).But neither truth nor good faith alone is a defence. See Re Regina and Carocchia, 14C.C.C. (2d) 354, at 357 (Qu6. C.S. 1972), appeal dismissed 15 C.C.C. (2d) 175, at 182(Que. C.A. 1973); Re Attorney General of Manitoba and Radio OB Ltd., 31 C.C.C. (2d)1,70 D.L.R. (3d) 311 (Man. Q.B. 1976).

27 Subs. 131.11(3), (4), as proposed in Bill C-19, cl. 33.28 G. BORRIE & N. LOWE, supra note 18, at 68.29 REPORT OF THE COMMITTEE ON CONTEMPT OF COURT 60 (Cmd. 5794, 1974)

[hereafter cited as PHILLIMORE REPORT].

30 WORKING PAPER 20, supra note 8, at 41.31 S. ROBERTSON, supra note 15, at 59.32 Constitution Act, 1982, Part I, sub. 2(b), enacted by Canada Act, 1982, U.K.

1982, c. 11.33 In Attorney General v. Times Newspapers Ltd., supra note 16, at 331, [1973] 3

All E.R. at 85, Lord Cross observed that " '[p]ublic interest' is an ambiguous phrase,for many cases ... may interest the public very much but yet not raise any issues oflegitimate public concern".

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whether a proposed publication will be protected by this defence may bedifficult. This lack of certainty in the concept of "public benefit" wasthe reason the Phillimore Committee decided not to recommend thecreation of a similar defence. 34

2. Affront to Judicial Authority

(a) The Offence

The Bill also creates an offence of "affront to judicial authority",which consists of wilfully publishing, without lawful justification orexcuse, a false, scandalous or scurrilous statement calculated to bring acourt or judge into disrepute. 35 "Court" is defined as including virtuallyany level of court, any judge of any of those courts and any tribunal,body or person designated as a court by order of the Governor in Councilor Lieutenant Governor in Council. 36

This offence is similar to the common law offence of scandalizingthe court. Retaining such an offence "reflects the need of an organizedsociety that public faith and confidence in the competence andimpartiality of its judicial system be maintained". 31 It is not designed"to protect the personal sensitivity of judges but rather the respectableimage enjoyed by the system of justice itself". 38

It is worth noting that the definition of this offence in the Bill wouldprotect virtually any court from scandalous comment. This is consistentwith the extension of jurisdiction to punish for contempt. At commonlaw, only superior courts could punish contempt ex facie. 9 Inferiorcourts could punish for contempt only if the contempt was committed inthe face of the court. Thus, inferior courts could not punish for contemptif the contempt consisted of a scandalous comment in a publication. BillC-19, however, would treat the offence of affront to judicial authority inthe same way as any other offence. Which court tried the charge woulddepend on whether the Crown elected to proceed summarily or byindictment and where it chose the latter course, on the mode of trialelected by the accused.

The "wilfulness" requirement clarifies the present law with respectto whether an intent to scandalize or to impede the administration ofjustice is an element of the common law offence of scandalizing thecourt. Most commentators have stated that such an intent is not

34 PHILLIMORE REPORT, supra note 29, at 62.15 Sub. 131.13(1), as proposed in Bill C-19, cl. 33.36 S. 131.1, as proposed in Bill C-19, cl. 33.11 Shifrin, supra note 18, at 282.38 WORKING PAPER 20, supra note 8, at 30.39 Id. at 8.

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required.4 ° However, in Re Ouellet (No. 1)41 Hugessen A.C.J. held thatmens rea is an element of the offence; lack of intention to scandalize thecourt is therefore a good defence. In that case the existence of mn ens reawas inferred from the words used by the contemnor.

The Bill includes a special provision prohibiting a judge frompresiding at a proceeding in respect of the alleged offence of an affront tojudicial authority when the statement in question relates in whole or inpart to a proceeding at which he presided.42 This prevents a judge frombeing "at the same time judge and party in a case".13 It is consistent withan accused's right to be presumed innocent until proven guilty accordingto law in a fair and public hearing by an independent and impartialtribunal, as guaranteed by subsection 11 (d) of the Charter.44

(b) Defences

Bill C-19 creates a defence to a charge of an affront to judicialauthority where the accused establishes that the publication was for thepublic benefit at the time of the publication and that the statement wastrue. 45 At the moment, the publication of true facts in the public interestdoes not appear to afford a defence to a charge of scandalizing thecourt, 46 although sections 539 and 540 of the Criminal Code permit truthto be raised as a defence to a charge of defamatory libel. Good faith can,however, afford a defence under existing law. For example, in Re Ouellet(No. 1) Hugessen A.C.J. suggested that "criticism" in good faith of theactions of courts and judges cannot and must not be made the subject ofcontempt proceedings. 47 Nothing in Bill C-19 expressly makes good faitha defence, although it could be argued that the words of the offenceimplicitly require an absence of good faith for conviction. It is difficult toforesee how a person who wilfully makes a statement calculated to bringa court into disrepute could be found to have acted in good faith.

40 Martin, Criticising the Judges, 28 McGILL L.J. 1, at 17 (1982); Watkins, supra

note 2, at 144; Mazzei, Criminal Contempt: Necessity and Procedure Versus Fairnessand Justice, 36 SASK. L. REv. 295, at 314 (1972).

41 67 D.L.R. (3d) 73, at 91 (Qu6. C.S. 1976), aff'd, sub noin. Re Ouellet (Nos. 1& 2), 32 C.C.C. (2d) 149, 72 D.L.R. (3d) 95 (Que. C.A. 1976). See also R. v.Fotheringham, [1970] 4 C.C.C. 126, at 132, 11 D.L.R. (3d) 353, at 360 (B.C.S.C.1970); S. ROBERTSON, supra note 15, at 102.

42 Sub. 131.12(3), as proposed in Bill C-19, cl. 33.11 REPORT 17, supra note 17, at 57.44 Constitution Act, 1982, Part I, sub. 11 (d), enacted by Canada Act, 1982, U.K.

1982, c. 11.45 Sub. 131.12(2), as proposed in Bill C-19, cl. 33. The Phillimore Committee

made an identical recommendation: see supra note 29, at 7 1.46 Martin, supra note 40, at 17; REPORT 17, supra note 17, at 26-27.47 Supra note 41, at 92 (Qu6. C.S.). See also WORKING PAPER 20, supra note 8, at

31; Ambard v. Attorney General of Trinidad & Tobago, [1936] A.C. 322, at 335-36,[1936] 1 All E.R. 704, at 709 (P.C.).

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The common law power to punish conduct that scandalizes the courtis one of the most harshly criticized aspects of the present law. Accordingto Professor Ziegel:

The most important criticism . . . to be levied against the power of the stateto punish disrespectful criticisms of the court . . . is that those who justify itsexercise misconceive the nature of freedom of speech. The cherished right tospeak one's mind freely on all topics of public interest is founded in the beliefthat men are fallible beings, and judges no less so, and that only a vigorousstream of criticism "expressed with candour however blunt" can ensure thatthose who are entrusted with immense power and great responsibilities do notabuse their privileged position.48

Professor Cavanaugh has also criticized this power, for "freedom ofexpression may well encompass the freedom to express distaste orrevulsion for a court's conduct, or to express doubts about itsimpartiality' .49

Do the provisions of Bill C-19 answer these criticisms? If oneaccepts that judges are in a vulnerable position because they cannotpublicly respond to criticism without destroying their appearance ofimpartiality, 50 then one must also accept that they are in need of specialprotection. The fact that some judges do make public remarks 5 ' does notmean that there exists an effective means of protecting the judicialsystem from comments which bring it into disrepute.

It is true that the special protections provided in the Bill appear tointrude upon freedom of expression, which is now entrenched in theCharter. The provisions of Bill C-19 would, however, limit thisintrusion. Statements that are true and published in the public interest, orstatements that are not made wilfully and are not calculated to bring theadministration of justice into disrepute could not be punished. Whetherthis limited intrusion upon freedom of expression constitutes a reason-able limit demonstrably justifiable in a free and democratic society willhave to be decided by the courts. Recent decisions dealing with freedomof expression would seem to indicate that this provision of the Bill wouldnot be struck down. 52

48 Ziegel, supra note 19, at 245-46.49 Supra note 1, at 360.So WORKING PAPER 20, supra note 8, at 33.51 Martin, suprd note 40, at 29.,2 See, e.g., R. v. Banville, 45 N.B.R. (2d) 134, 3 C.C.C. (3d) 312 (Q.B. 1983);

Re Global Communications Ltd. and Attorney General of Canada, 42 O.R. (2d) 13, 5C.C.C. (3d) 346 (H.C. 1983), appeal dismissed 44 O.R. (2d) 609, 10 C.C.C. (3d) 97(C.A. 1984); Re Southam Inc. and The Queen (No. 1), 41 O.R. (2d) 113, 3 C.C.C. (3d)515 (C.A. 1983). See also Martin, id. at 18.

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3. Disruption of Judicial Proceedings

The third offence created by the Bill is that of wilfully disrupting ajudicial proceeding in a court by disorderly or offensive conduct in orabout that room.53 This offence corresponds to the common law power topunish misbehaviour in the face of the court. The common law powerpermits judges to maintain the orderly functioning of judicial proceed-ings by punishing conduct that obstructs the course of those proceed-ings.

54

This offence would appear to be restricted to misbehaviour in courtthat obstructs the normal course of proceedings. Amendments tosubsection 116(1) of the Code would create a separate offence ofdisobeying an order of a court or of a person authorized by any Act tomake such an order, other than an order for the payment of money, unlesssome penalty, punishment or other mode of proceeding was expresslyprovided by law. 55 New subsection 116(1.1) would make it a criminaloffence to fail to attend or remain in attendance for the purpose of givingevidence when required to do so by law. 56 The definitions of theseoffences do not make it clear whether a witness' refusal to take an oath orto testify would offend section 116 or would amount to the offence ofdisruption. Presumably, a witness' refusal to testify in contravention of ajudge's order would be punished as a disruption of judicial proceedingsbecause subsection 116(1) does not operate where "some other penaltyor punishment or mode of proceeding is expressly provided by law".

Unfortunately, nothing in this definition would limit the scope of theoffence to conduct that seriously disrupts a judicial proceeding.Moreover, no defences are provided. Exposing a person to criminalliability for an act of mere discourtesy, even if "wilful" and"disruptive", is inconsistent with the government's declared philosophyof restraint.

5 7

As with the offence of affront to judicial authority, no judge can tryan offence of disruption in relation to a judicial proceeding at which hepresided.58

53 Sub. 131.13, as proposed in Bill C-19, cl. 33.54 WORKING PAPER 20, supra note 8, at 19-21.55 Sub. 116(1), as proposed in Bill C-19, el. 29.56 Sub. 116(1.1), as proposed in Bill C-19, cl. 29.57 DEPARTMENT OF JUSTICE, THE CRIMINAL LAW IN CANADIAN SOCIETY 52-53,

68-69 (1982).-" Sub. 131.13(2), as proposed in Bill C-19, cl. 33.

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C. Procedure

1. Penalties

Each of the three offences proposed in Bill C-19 is a hybrid offence.If prosecuted by way of indictment, the maximum penalty would beimprisonment for two years. 59 Disruption of judicial proceedings couldalso be punished by way of a citation procedure in which penalties wouldconsist of a fine of one thousand dollars or imprisonment for threemonths. Conviction would not result in a criminal record. 60

Specifying maximum penalties for contempt of court serves twosignificant functions. First, it limits the extent of the punishment thatmay be imposed for contempt. The lower maximum penalty forcontempts punished by citation also emphasizes that that procedure isonly to be used in exceptional circumstances or for the less serious formsof the offence of disruption. Moreover, the fact that no criminal record iscreated upon citation is an acknowledgment that the offence of disruptionmay be something less than a "true crime", for the full force of thecriminal law is not used to deal with this kind of conduct. 61 Second, itprecludes an accused from relying upon subsection 1 1(f) of the Charter,which gives a person charged with an offence the right to "the benefit oftrial by jury where the maximum punishment for the offence isimprisonment for five years or a more severe punishment". This clarifiesthe present state of the law. 62 It is also consistent with "the trend . . . torestrict[ing] trial by jury to the most serious criminal cases". 63

2. Citation Procedure

The citation procedure described in Bill C-19 is an alternative toprosecution by indictment. 64 Only charges of disruption can be settled bycitation procedure. The Bill empowers a judge who is presiding over aproceeding in relation to which conduct amounting to the offence ofdisruption occurs, to cite a person in writing for that offence. Before

59 Subs. 131.11(1), 131.12(1) and 131.13(1), as proposed in Bill C-19, cl. 33.60 Sub. 131.19(2), as proposed in Bill C-19, cl. 33.61 Supra note 57, at 57; DEPARTMENT OF JUSTICE, CRIMINAL LAW IN CANADIAN

SOCIETY: HIGHLIGHTS 20 (1982).62 In Attorney General of Quebec v. Laurendeau, 3 C.C.C. (3d) 250 (Qu6. C.S.

1982), Rothman J. held that contempt is not an "offence" within the meaning of theCharter. A person alleged to have committed contempt, thus, is not "a person chargedwith an offence" and cannot rely on sub. 11(f). In R. v. Cohn, 10 W.C.B. 483 (Ont.Prov. Ct. 1983), Belanger J. held that contempt is an "offence" within the meaning ofsub. 1 1(f) and that a person cited for contempt has the right to a jury trial. However,denial of a jury trial is a reasonable limit which can be demonstrably justified in a freeand democratic society, at least where the contempt involves a refusal to testifysinpliciter.

63 Ziegel, supra note 19, at 261.64 Presents. 508.

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citing that person, the judge has to be satisfied that a proceeding by wayof citation is warranted, having regard to any costs or inconvenience toparties or witnesses, any need to deal expeditiously with the person andany circumstances that might make it inappropriate to give the accused acriminal record if convicted. A judge who cites a person would berequired to inform him that he is being cited for disruption, the time andplace at which he is required to attend to be dealt with in respect of thealleged offence and his right to retain counsel and to call witnesses at thehearing. The judge must prepare a written citation setting out the factsalleged to constitute the offence. He can direct that the person cited betaken into custody and has the power to order that the person be releasedon an undertaking or a recognizance in accordance with the provisions ofPart XIV of the Code.

No judge can try an offence of disruption that allegedly occurred at ajudicial proceeding over which he presided; however, the judge who citesa person would be competent to testify at the subsequent hearing, thoughhe would not be compellable unless the judge presiding at the hearingwas satisfied that his testimony was necessary to prove the case, refutethe charge, or make full answer and defence. If the judge issuing thecitation is a judge of the Supreme Court of Canada, the Federal Court ofAppeal or a provincial court of appeal, the person cited could becompelled to appear before another judge of that same court. If thecitation was issued by a body or tribunal designated as a court, thatperson could be compelled to appear before a provincial court judge. Inany other case the person cited could be compelled to appear beforeanother judge of the court having jurisdiction in the territorial divisionwhere the alleged offence occurred. If it is necessary to deal with thatperson expeditiously and such a judge is not readily available, the personcould be compelled to appear before a judge of a court with jurisdictionsuperior to that of the court in which he was cited.

The court before which the person cited is compelled to appear hasthe power to conduct a show-cause hearing in accordance with most ofthe provisions of Part XIV of the Code if that person has been detained incustody, and to deal with the offence in a summary manner, consistentwith the person's right to be presumed innocent until proven guiltyaccording to law and to make full answer and defence. The AttorneyGeneral is required to conduct the prosecution. The written citationwould be admissible in evidence and, in the absence of evidence to thecontrary, would constitute proof of the facts stated therein.

The statutory citation procedure offers obvious advantages over theexisting common law summary procedure. By restricting the availabilityof the procedure to disruption, the Bill ensures that only conduct in orabout a courtroom can be tried summarily. Contempts ex facie, such asthe publication of scandalous statements, would have to be disposed ofby trial on an indictment. This is consistent with the dissenting opinions

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of Spence J. and Laskin J. (as he then was) in McKeown v. The Queen.65In that case, Mr. Justice Spence stated:

There is no doubt that once contempt is not in "the face of the court" then theadjudication thereon summarily by the tribunal which is, in fact, the accuser,is one which is most difficult without breach of nearly every principle ofnatural justice evolved by the Courts. When a contempt is "in the face of thecourt", in most cases it cannot be dealt with efficiently except immediatelyand by the very judicial officer in whose presence the contempt wascommitted. No other course would, in most cases, protect the dueadministration of justice. When, however, the contempt is not "in the face ofthe court" then it can be dealt with subsequently before any other tribunal,the attorney general or his representative representing the interests of the statein the administration of justice with the accused being permitted all theprotections of any ordinary trial for any ordinary offence. 66

Moreover, the provisions that permit a judge to resort to the citationprocedure only when he is satisfied that the person's conduct constitutesan offence and that proceeding by way of citation is warranted 67 ensurethat the power to punish summarily for contempt will "only be exercisedwith very great caution, and only in those cases where it is necessary toact quickly in order to permit the courts to continue to fulfill theirfunction" .68

Perhaps the most significant alteration that the Bill makes to thecommon law procedure is its express incorporation of the protectionsguaranteed by the Charter. The Bill requires an alleged contemnor to beinformed of the offence for which he has been cited. 69 The contemnormust be tried by a judge other than the judge who cited him7 ° and thecontempt hearing must be conducted in a manner consistent with his rightto be presumed innocent and to make full answer and defence to thecharge.71 Requiring an alleged contemnor to be advised of his right toretain and instruct counsel is another provision consistent with the spiritof subsection 10(b) of the Charter, even though a person cited forcontempt who is not detained in custody would not otherwise have thatright.

The main difficulty with the citation procedure proposed in the Billis that it may not be much more expeditious than trial by indictment. 72

The citation hearing in fact looks much like an ordinary trial.

65 [1971] S.C.R. 446, 16 D.L.R. (3d) 390.616 Id. at 455-56, 16 D.L.R. (3d) at 397.67 Sub. 13 1. 15(2), as proposed in Bill C-19, cl. 33.61 Hdbert v. Attorney General of Quebec, [1966] Qu6. B.R. 197, at 216, 50 C.R.

88, at 137 (C.A.).66 Para. 131.15(4)(a), as proposed in Bill C-19, cl. 33.71 Sub. 131.13(2), as proposed in Bill C-19, cl. 33.71 Sub. 131.19(1), as proposed in Bill C-19, cl. 33.72 Sub. 131.16(2) does, however, give a judge who has cited someone the power

to order that the person be dealt with by a judge in another territorial division of the sameprovince, if no judges in the territorial division where the offence occurred are availablewithin 14 days after the date of the citation.

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Presumably, the Attorney General would call evidence first by introduc-ing the written citation. Nothing in the Bill precludes him from callingother persons as witnesses, so that he may be able to call persons whowere present in court at the time of the alleged disruption. Since thewritten citation would constitute proof of the facts stated therein, in theabsence of evidence to the contrary, the evidentiary onus would then shiftto the alleged contemnor. 73 The accused's right to make full answer anddefence should permit him to cross-examine any witnesses called by theprosecution as well as the judge who issued the citation,7 4 and to testifyand call his own witnesses. After hearing all the evidence, the judgewould have to determine whether the accused was guilty of disruptionbeyond a reasonable doubt. 75 An accused found guilty would then besentenced. The citation procedure, thus, may be as cumbersome as trialon indictment.

Moreover, nothing in the Bill would require the allegation ofcontempt to be heard within a specified time after the making of thecitation. Finding another judge to deal with the case may result in somedelay. It may also circumvent the purpose of providing a citationprocedure for contempt committed in facie curiae, namely, that suchcontempt cannot be dealt with efficiently except by the very judge inwhose presence it was committed, since all of the circumstances arewithin his personal knowledge. 76 This is what helps to make theprocedure "summary". The fact that a show-cause hearing may beconducted is another response to the danger that the contempt hearingmay not be held within a short time of the making of the citation.

Unfortunately, undue delay defeats the very purpose of a summaryprocedure. Expeditiousness was the reason the Law Reform Commissionproposed to retain a summary procedure in cases of disruption:

[R]apid suppression of the misbehaviour is crucial. In addition to punishingthe contemptuous act, the aim is to restore the order which was disrupted, topermit the resumption of the judicial proceeding which was interrupted, andto nip in the bud any attempts to repeat the conduct or engage in judicial

73 Quaere whether this reverse onus violates the right to be presumed innocentuntil proven guilty, as guaranteed by sub. I 1(d) of the Charter. See, e.g., R. v. Oakes,40 O.R. (2d) 660, 2 C.C.C. (3d) 339 (C.A. 1983), leave to appeal to S.C.C. granted 49N.R. 80 (1983); R. v. Carroll, 40 Nfld. & P.E.I.R. 147, 4 C.C.C. (3d) 131 (P.E.I.S.C.1983); R. v. Cook, 56 N.S.R. (2d) 449, 4 C.C.C. (3d) 419 (C.A. 1983); R. v. O'Day,46 N.B.R. (2d) 77, 5 C.C.C. (3d) 227 (C.A. 1983); R. v. Holmes, 41 O.R. (2d) 250, 4C.C.C. (3d) 440 (C.A. 1983); Re Boyle and The Queen, 41 O.R. (2d) 713, 5 C.C.C.(3d) 193 (C.A. 1983).

71 S. 131.14 makes a judge competent, but not compellable to be a witness at acontempt hearing unless the judge presiding at the hearing is satisfied that the judge'stestimony is necessary for proving the case, refuting the charge or making full answer ordefence.

" Supra note 65, at 479, 16 D.L.R. (3d) at 414. Laskin J. (as he then was),dissenting, stated that the summary procedure "does not dispense with the right of theappellant to have his conviction meet the test of proof of guilt beyond a reasonabledoubt".

76 Id. at 455, 470, 16 D.L.R. (3d) at 397, 408.

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guerilla warfare. A rapid decision and instant exemplarity are essential, if thesituation is to be restored. 77

If the Charter requires that an alleged contemnor be tried by a judgeother than the judge before whom the alleged contempt occurred, and thathe have the right to call witnesses and make full answer and defence, thenthe better response would have been to require all contempt offences tobe tried on indictment with provision for a speedy trial. If somedisruptive conduct is not serious enough to warrant the creation of acriminal record, perhaps it should not be proscribed by the criminal law.

One other feature of the citation procedure outlined in the Bill thatshould be re-examined is the organization and numbering of theprovisions. Most of the sections refer to other sections and subsections ofthe contempt or bail provisions of the Code. Repeated reference to othersections of the Code is awkward and unwieldy. The numbering of theseprovisions does not make the task any easier. For example, proposedsubsection 131.18(3) refers to seven other provisions of the Code:

Sections 457 to 457.6, except subsections 457(5.1) to (5.3) and subsection457(8), apply, with such modifications as the circumstances require, inrespect of a person brought under the authority of section 131.17 before ajudge, who shall accordingly have the powers and duties assigned to a justiceby any of those sections and subsection 457.8(2).

Before these provisions are enacted, the numbering scheme should besimplified, and the citation procedure sections redrafted to avoidexcessive cross-referencing.

3. Appeal Procedures

Another important feature of the Bill is the proposed repeal ofsection 9 of the Code.7 8 The provisions of Parts XVIII and XXIV of theCode would govern appeals from cases tried on information or onindictment. This would extend rights of appeal to the Attorney General.

Special provision is made for cases tried by the citation procedure.A person summarily convicted for disruption could appeal his convictionor sentence to a court with general appellate jurisdiction over the decisionof the judge who convicted or sentenced him.7 9 No provision is made foran appeal by the Attorney General. These provisions avoid the problemof having to determine whether a contempt was committed in the face ofthe court. 80

77 REPORT 17, supra note 17, at 16.71 Bill C-19, cl. 6.71 Sub. 131.21(1), as proposed in Bill C-19, cl. 33.80 Prior to the amendment of sub. 9(1) of the Criminal Code in 1972, a person

summarily convicted of contempt in the face of the court could appeal only against thesentence imposed, whereas a person summarily convicted of contempt not in the face ofthe court could appeal from conviction and against the sentence imposed. For anillustration of the difficulties caused by this distinction, see McKeown v. The Queen,supra note 65.

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D. Conclusion

Abolishing the common law power to punish contempt of court andreplacing it with contempt offences and related procedures in theCriminal Code is clearly desirable. Judges, lawyers, litigants andmembers of the media will be able to determine with greater precisionwhat conduct is proscribed, and the consequences of engaging in suchconduct. For this reason, the contempt provisions of Bill C-19 should besupported.

Several features of the Bill could, however, be improved. Theoffence of disruption should be redefined, to limit its scope to seriousconduct only. Some of the language used in the Bill should be improved.Terms such as "other disposal" and "public interest" are too impreciseto be of much assistance to citizens who want to avoid criminal liabilityfor contempt. If a summary procedure is to be retained, mechanisms mustbe provided to ensure that it is expeditious. If the rights of an accused andexpeditiousness cannot coexist, then there is no place for a summaryprocedure in our Criminal Code. Finally, greater attention must be paidto the organization and numbering of these provisions to avoid theunwieldiness of the existing bail and wiretapping provisions of the Code.

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