III. CONTEMPT OF COURT

Linda Fuerst*

A. Introduction

Critics have condemned the power to punish for contempt in Canada as "antiquated and autocratic",' "remedial and coercive", 2 and 3 "complex and ill-defined". While not all have been so harsh, most agree that the law in its present state is vague, confusing and in need of reform. 4 The contempt provisions in Bill C-19 5 address many defects in the current law. The most significant revision is the amendment of section 8 of the Criminal Code, 6 abolishing the common law power of judges to punish for contempt.' The Bill adopts the recommendation made by the Law Reform Commission of Canada that steps be taken to eliminate the anomaly created by section 8 and to enumerate and define the forms of criminal contempt. Section 8 would be amended to restrict liability to one of three offences created in the Code, 9 with the exception of the power to impose punishment for non-compliance with a judicial order in a civil matter.' 0

* Law Reform Commission of Canada. This article does not necessarily reflect the Commission'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: The Law 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 (1st reading 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 common law offence. This is inconsistent with the basic principle that there must be a specific legislative enactment prohibiting particular conduct before that conduct can become the subject of a criminal prosecution. 9 See s. 131.11 (interference with judicial proceedings), s. 131.12 (affront to judicial authority) and s. 131.13 (disruption of judicial proceedings), as proposed in Bill C-19, cl. 33. 10 R.S.C. 1970, c. C-23, s. 10. 19841 Bill C-19: Contempt of Court

B. Offences and Defences

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

1. Inteiference with JudicialProceedings

(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 civil or criminal proceeding would be seriously impeded or prejudiced." "Publication" is broadly defined as "any speech, writing, broadcast or other communication made by any means that is addressed to the public at large or any section of the public". 12 The Bill specifies when a civil proceeding, criminal proceeding or an order granted on appeal requiring a new trial is "pending". A criminal proceeding would be "pending" from the time of the accused's arrest without warrant, from the time of the issuance of an appearance notice, summons or warrant for arrest 13 or from the time of the commencement of the proceeding by the preferring of an indictment or bill of indictment, until the determination of the proceeding by verdict, sentence, discontinuance or by other disposal. 14 This offence resembles the common law rule of sub judice, which empowers the courts to punish comments that may prejudice or interfere with the fair and impartial administration of justice. 15 Several aspects of this definition do not make significant changes to the present law. For example, requiring a "substantial risk" that the publication will seriously interfere with the course of justice is consistent with Lord Diplock's comment in Attorney-General i. Times Newspapers Ltd. In order to constitute contempt, he said, the conduct must present "a real risk as opposed to a mere possibility of interference with the due administration of justice".16 The requirement also reflects the view expressed by Hall J. in Attorney Generalfor 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.). Ottawa Law Review [Vol. 16:316

Press Publishing Co., that a substantial interference with a fair trial must be established.' 7 However, the inclusion of the word "knowingly" in the definition of the offence does change the present law, which requires only an intention to publish.' 8 This would prevent convictions when publishers are 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 given proceeding at which the sub-judice [sic] rule begins to operate". 19 At the present time, whether the rule operates prior to arrest or the laying of charges is not clear.2 0 Stuart Robertson has advised that "when it is evident that a person is about to be arrested or that an information is about to be sworn and a summons or warrant issued, a reporter would be prudent to ensure that any statements made will not interfere with a future proceeding". 2 ' Thus, Bill C-19 introduces some precision to this area of law. The law in its present state appears to extend the sub judice rule to appeal proceedings in criminal cases. 2 Unfortunately, the definition of "pending" in Bill C-19 makes it unclear whether the offence of disruption would continue to apply after the determination of a criminal trial. The phrase "or other disposal" may mean the discharge of an accused at the preliminary inquiry or a direction by the prosecutor to stay proceedings 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 the primary 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 LAW REFORM 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 Constructive Contempt and the Freedom of the Press, 14 CHITTY'S L.J. 281, at 293 (1966); WORKING PAPER 20, supra note 8, at 39-40; Cavanaugh, supra note 1, at 355. See, e.g., Attorney General of Manitoba v. Winnipeg Free Press Publishing Co., id. at 51, 52 W.W.R. at 131-32; 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, Some Aspects of the Law of Contempt of Court in Canada, England, and the United States, 6 McGILL L.J. 229, at 235-37 (1960); Brown, Some Contemporarv Problems in the English 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 ... must act at its peril when reporting situations that appear to demand criminal prosecution, for if proceedings are in fact pending or imminent, then a conviction for contempt is a strong possibility". 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, at 505-06. 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). 1984] Bill C- 19: Contempt of Court

prevent courts, including appeal courts, from being prejudiced in the fair and impartial determination of cases. Humphreys J. expressed this view inR. v. Davies: It seems to me that the bringing before the minds of judges who have to try an appeal in a criminal case matters which they do not desire to know, and which if brought to their attention are likely to embarrass them in the fair and impartial consideration of the case, is wrong. Whether that is right or not, I cannot say. It is my own opinion and I express it as such, and I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult,23 and no one has the right to publish matter which will have that effect. Interpreting "or other disposal" to mean the end of a trial proceeding is consistent with a narrow view of the rule's purpose, which is, that it exists to protect the judicial process from comments likely to influence a trial verdict. Presumably, courts of appeal, which mainly consider questions of law, are unlikely to be influenced by inflammatory comment: It might be said that it is inconceivable that any court considering a pure question of law could be affected by anything written in a newspaper about the 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 read the particular newspaper in question, it could have the smallest effect upon 2 him. 1 If the phrase "or othei disposal" is interpreted according to the narrow view of the purpose of the sub judice rule, comments published while an appeal is pending would not be prohibited, even though another provision of Bill C-19 deems proceedings to be pending for any period for which an order requiring a new trial is in force. 25 This means that a court hearing a new trial after an appeal would be insulated from comments published after the disposition of the appeal, but not from comments published while the appeal was pending. If this is the correct interpretation of "pending", the section should be reconsidered, for it provides incomplete protection to litigants and to a court hearing a new trial. If the broader construction is correct, the definition of "pending" should be changed to make it clear that the rule extends to the end of appeal proceedings.

(b) Defences

The Bill creates two "good faith" defences to a charge of interference with judicial proceedings. A person cannot be found guilty if the 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. Ottawa Law Review (Vol. 16:316

and was published contemporaneously in good faith. Nor can a conviction follow if the publication was made as a discussion or as part of a discussion in good faith of public affairs or other matters of general public interest, and if the risk of impediment or prejudice was merely incidental to the discussion. An accused could not rely on the first defence if a court had made an order for a hearing of those proceedings in camera or for non-publication. Fair and accurate reporting in good faith of judicial proceedings has been recognized as a defence under the existing law. 26 Unfortunately, the meaning of "good faith" is not entirely clear and it is not defined in the Bill. 27 Professors Borrie and Lowe have interpreted "good faith" to mean "for the public good" and without "malafides". 28 The Phillimore Committee defined "good faith" in terms of an absence of malice and the deliberate intention to cause prejudice.2 9 According to the Law Reform Commission of Canada, the effect of the good faith defence is that "the press is free to 'follow' or 'cover' a trial like any other public event . . . [provided it does not] make comments that might influence the outcome of a trial, create a bias against one of the parties or affect the evidence to be presented". 30 Providing a defence where the risk of prejudice is incidental to a good faith discussion of matters of public interest is a new development in the Canadian law of contempt."' Although this defence appears to be aimed at limiting the scope of the offence of interference, in conformity with the guarantee of freedom of thought, belief, opinion and expression provided by subsection 2(b) of the Charter, 32 the imprecise language used in the provision may frustrate this intention. What does "good faith" mean? Are not all reports of judicial proceedings matters of "public interest" ?3 When will a substantial risk that the course of justice will be seriously impeded be characterized as "merely incidental" to a discussion 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, 14 C.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 of legitimate public concern". 1984] Bill C-19: Contempt of Court

whether a proposed publication will be protected by this defence may be difficult. This lack of certainty in the concept of "public benefit" was the reason the Phillimore Committee decided not to recommend the creation 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 or excuse, a false, scandalous or scurrilous statement calculated to bring a court or judge into disrepute. 35 "Court" is defined as including virtually any 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 Council or Lieutenant Governor in Council. 36 This offence is similar to the common law offence of scandalizing the court. Retaining such an offence "reflects the need of an organized society that public faith and confidence in the competence and impartiality of its judicial system be maintained". 31 It is not designed "to protect the personal sensitivity of judges but rather the respectable image enjoyed by the system of justice itself". 38 It is worth noting that the definition of this offence in the Bill would protect virtually any court from scandalous comment. This is consistent with the extension of jurisdiction to punish for contempt. At common law, only superior courts could punish contempt ex facie. 9 Inferior courts could punish for contempt only if the contempt was committed in the face of the court. Thus, inferior courts could not punish for contempt if the contempt consisted of a scandalous comment in a publication. Bill C-19, however, would treat the offence of affront to judicial authority in the same way as any other offence. Which court tried the charge would depend on whether the Crown elected to proceed summarily or by indictment and where it chose the latter course, on the mode of trial elected by the accused. The "wilfulness" requirement clarifies the present law with respect to whether an intent to scandalize or to impede the administration of justice is an element of the common law offence of scandalizing the court. 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. Ottawa Law Review [Vol. 16:316 required.4 ° However, in Re Ouellet (No. 1)41 Hugessen A.C.J. held that mens rea is an element of the offence; lack of intention to scandalize the court is therefore a good defence. In that case the existence of mn ens rea was inferred from the words used by the contemnor. The Bill includes a special provision prohibiting a judge from presiding at a proceeding in respect of the alleged offence of an affront to judicial authority when the statement in question relates in whole or in part to a proceeding at which he presided.42 This prevents a judge from being "at the same time judge and party in a case".13 It is consistent with an accused's right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, 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 judicial authority where the accused establishes that the publication was for the public benefit at the time of the publication and that the statement was true. 45 At the moment, the publication of true facts in the public interest does not appear to afford a defence to a charge of scandalizing the court, 46 although sections 539 and 540 of the Criminal Code permit truth to 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 the actions of courts and judges cannot and must not be made the subject of contempt proceedings. 47 Nothing in Bill C-19 expressly makes good faith a defence, although it could be argued that the words of the offence implicitly require an absence of good faith for conviction. It is difficult to foresee how a person who wilfully makes a statement calculated to bring a 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 Fairness and 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.). 1984] Bill C-19: Contempt of Court

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

The most important criticism . . . to be levied against the power of the state to punish disrespectful criticisms of the court . . . is that those who justify its exercise misconceive the nature of freedom of speech. The cherished right to speak one's mind freely on all topics of public interest is founded in the belief that men are fallible beings, and judges no less so, and that only a vigorous stream of criticism "expressed with candour however blunt" can ensure that those who are entrusted with immense power and great responsibilities do not abuse their privileged position.48 Professor Cavanaugh has also criticized this power, for "freedom of expression may well encompass the freedom to express distaste or revulsion for a court's conduct, or to express doubts about its impartiality' .49 Do the provisions of Bill C-19 answer these criticisms? If one accepts that judges are in a vulnerable position because they cannot publicly respond to criticism without destroying their appearance of impartiality, 50 then one must also accept that they are in need of special protection. The fact that some judges do make public remarks 5 ' does not mean that there exists an effective means of protecting the judicial system from comments which bring it into disrepute. It is true that the special protections provided in the Bill appear to intrude upon freedom of expression, which is now entrenched in the Charter. The provisions of Bill C-19 would, however, limit this intrusion. Statements that are true and published in the public interest, or statements that are not made wilfully and are not calculated to bring the administration of justice into disrepute could not be punished. Whether this limited intrusion upon freedom of expression constitutes a reason- able limit demonstrably justifiable in a free and democratic society will have to be decided by the courts. Recent decisions dealing with freedom of expression would seem to indicate that this provision of the Bill would 52 not be struck down.

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, 5 C.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. Ottawa Law Review [Vol. 16:316

3. Disruption of JudicialProceedings

The third offence created by the Bill is that of wilfully disrupting a judicial proceeding in a court by disorderly or offensive conduct in or about that room. 53 This offence corresponds to the common law power to punish misbehaviour in the face of the court. The common law power permits judges to maintain the orderly functioning of judicial proceed- ings by punishing conduct that obstructs the course of those proceed- 54 ings. This offence would appear to be restricted to misbehaviour in court that obstructs the normal course of proceedings. Amendments to subsection 116(1) of the Code would create a separate offence of disobeying an order of a court or of a person authorized by any Act to make such an order, other than an order for the payment of money, unless some penalty, punishment or other mode of proceeding was expressly provided by law. 55 New subsection 116(1.1) would make it a criminal offence to fail to attend or remain in attendance for the purpose of giving evidence when required to do so by law. 56 The definitions of these offences do not make it clear whether a witness' refusal to take an oath or to testify would offend section 116 or would amount to the offence of disruption. Presumably, a witness' refusal to testify in contravention of a judge's order would be punished as a disruption of judicial proceedings because subsection 116(1) does not operate where "some other penalty or punishment or mode of proceeding is expressly provided by law". Unfortunately, nothing in this definition would limit the scope of the offence to conduct that seriously disrupts a judicial proceeding. Moreover, no defences are provided. Exposing a person to criminal liability for an act of mere discourtesy, even if "wilful" and "disruptive", is inconsistent with the government's declared philosophy 5 7 of restraint. As with the offence of affront to judicial authority, no judge can try an offence of disruption in relation to a judicial proceeding at which he presided.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. 1984] Bill C-19: Contempt of Court

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 be imprisonment for two years. 59 Disruption of judicial proceedings could also be punished by way of a citation procedure in which penalties would consist of a fine of one thousand dollars or imprisonment for three 0 months. Conviction would not result in a criminal record. 6 Specifying maximum penalties for contempt of court serves two significant functions. First, it limits the extent of the punishment that may be imposed for contempt. The lower maximum penalty for contempts punished by citation also emphasizes that that procedure is only to be used in exceptional circumstances or for the less serious forms of the offence of disruption. Moreover, the fact that no criminal record is created upon citation is an acknowledgment that the offence of disruption may be something less than a "true crime", for the full force of the criminal law is not used to deal with this kind of conduct. 61 Second, it precludes 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 of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment". This clarifies 62 the present state of the law. It is also consistent with "the trend . . . to restrict[ing] trial by jury to the most serious criminal cases". 63

2. CitationProcedure

The citation procedure described in Bill C-19 is an alternative to prosecution by indictment. 64 Only charges of disruption can be settled by citation procedure. The Bill empowers a judge who is presiding over a proceeding in relation to which conduct amounting to the offence of disruption 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 the Charter. A person alleged to have committed contempt, thus, is not "a person charged with 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 of sub. 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 free and democratic society, at least where the contempt involves a refusal to testify sinpliciter. 63 Ziegel, supra note 19, at 261. 64 Presents. 508. Ottawa Law Review [Vol. 16:316 citing that person, the judge has to be satisfied that a proceeding by way of citation is warranted, having regard to any costs or inconvenience to parties or witnesses, any need to deal expeditiously with the person and any circumstances that might make it inappropriate to give the accused a criminal record if convicted. A judge who cites a person would be required to inform him that he is being cited for disruption, the time and place at which he is required to attend to be dealt with in respect of the alleged offence and his right to retain counsel and to call witnesses at the hearing. The judge must prepare a written citation setting out the facts alleged to constitute the offence. He can direct that the person cited be taken into custody and has the power to order that the person be released on an undertaking or a recognizance in accordance with the provisions of Part XIV of the Code. No judge can try an offence of disruption that allegedly occurred at a judicial proceeding over which he presided; however, the judge who cites a person would be competent to testify at the subsequent hearing, though he would not be compellable unless the judge presiding at the hearing was satisfied that his testimony was necessary to prove the case, refute the charge, or make full answer and defence. If the judge issuing the citation is a judge of the Supreme Court of Canada, the Federal Court of Appeal or a provincial court of appeal, the person cited could be compelled to appear before another judge of that same court. If the citation was issued by a body or tribunal designated as a court, that person could be compelled to appear before a provincial court judge. In any other case the person cited could be compelled to appear before another judge of the court having jurisdiction in the territorial division where the alleged offence occurred. If it is necessary to deal with that person expeditiously and such a judge is not readily available, the person could be compelled to appear before a judge of a court with jurisdiction superior to that of the court in which he was cited. The court before which the person cited is compelled to appear has the power to conduct a show-cause hearing in accordance with most of the provisions of Part XIV of the Code if that person has been detained in custody, and to deal with the offence in a summary manner, consistent with the person's right to be presumed innocent until proven guilty according to law and to make full answer and defence. The Attorney General is required to conduct the prosecution. The written citation would be admissible in evidence and, in the absence of evidence to the contrary, would constitute proof of the facts stated therein. The statutory citation procedure offers obvious advantages over the existing common law summary procedure. By restricting the availability of the procedure to disruption, the Bill ensures that only conduct in or about a courtroom can be tried summarily. Contempts ex facie, such as the publication of scandalous statements, would have to be disposed of by trial on an indictment. This is consistent with the dissenting opinions 1984] Bill C-19: Contempt of Court of Spence J. and Laskin J. (as he then was) in McKeown v. The Queen.65 In that case, Mr. Justice Spence stated: There is no doubt that once contempt is not in "the face of the court" then the adjudication thereon summarily by the tribunal which is, in fact, the accuser, is one which is most difficult without breach of nearly every principle of natural justice evolved by the Courts. When a contempt is "inthe face of the court", in most cases it cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the contempt was committed. No other course would, in most cases, protect the due administration of justice. When, however, the contempt is not "in the face of the court" then it can be dealt with subsequently before any other tribunal, the attorney general or his representative representing the interests of the state in the administration of justice with the accused being permitted all the protections of any ordinary trial for any ordinary offence. 66 Moreover, the provisions that permit a judge to resort to the citation procedure only when he is satisfied that the person's conduct constitutes an offence and that proceeding by way of citation is warranted 67 ensure that the power to punish summarily for contempt will "only be exercised with very great caution, and only in those cases where it is necessary to act quickly in order to permit the courts to continue to fulfill their function" .68 Perhaps the most significant alteration that the Bill makes to the common law procedure is its express incorporation of the protections guaranteed by the Charter. The Bill requires an alleged contemnor to be informed of the offence for which he has been cited. 69 The contemnor must be tried by a judge other than the judge who cited him7 ° and the contempt hearing must be conducted in a manner consistent with his right to be presumed innocent and to make full answer and defence to the charge.71 Requiring an alleged contemnor to be advised of his right to retain and instruct counsel is another provision consistent with the spirit of subsection 10(b) of the Charter, even though a person cited for contempt who is not detained in custody would not otherwise have that right. The main difficulty with the citation procedure proposed in the Bill 72 is that it may not be much more expeditious than trial by indictment. The citation hearing in fact looks much like an ordinary trial.

65 [1971] S.C.R. 446, 16 D.L.R. (3d) 390. 616Id. 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 same province, if no judges in the territorial division where the offence occurred are available within 14 days after the date of the citation. Ottawa Law Review [Vol. 16:316

Presumably, the Attorney General would call evidence first by introduc- ing the written citation. Nothing in the Bill precludes him from calling other persons as witnesses, so that he may be able to call persons who were present in court at the time of the alleged disruption. Since the written citation would constitute proof of the facts stated therein, in the absence of evidence to the contrary, the evidentiary onus would then shift to the alleged contemnor. 73 The accused's right to make full answer and defence should permit him to cross-examine any witnesses called by the prosecution as well as the judge who issued the citation,7 4 and to testify and call his own witnesses. After hearing all the evidence, the judge would have to determine whether the accused was guilty of disruption beyond a reasonable doubt. 75 An accused found guilty would then be sentenced. The citation procedure, thus, may be as cumbersome as trial on indictment. Moreover, nothing in the Bill would require the allegation of contempt to be heard within a specified time after the making of the citation. Finding another judge to deal with the case may result in some delay. It may also circumvent the purpose of providing a citation procedure for contempt committed in facie curiae, namely, that such contempt cannot be dealt with efficiently except by the very judge in whose presence it was committed, since all of the circumstances are within his personal knowledge. 76 This is what helps to make the procedure "summary". The fact that a show-cause hearing may be conducted is another response to the danger that the contempt hearing may not be held within a short time of the making of the citation. Unfortunately, undue delay defeats the very purpose of a summary procedure. Expeditiousness was the reason the Law Reform Commission proposed to retain a summary procedure in cases of disruption:

[R]apid suppression of the misbehaviour is crucial. In addition to punishing the contemptuous act, the aim is to restore the order which was disrupted, to permit the resumption of the judicial proceeding which was interrupted, and to 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 innocent until 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 49 N.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, 4 C.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 a contempt hearing unless the judge presiding at the hearing is satisfied that the judge's testimony is necessary for proving the case, refuting the charge or making full answer or defence. " 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 the appellant to have his conviction meet the test of proof of guilt beyond a reasonable doubt". 76 Id. at 455, 470, 16 D.L.R. (3d) at 397, 408. 1984] Bill C-19: Contempt of Court

guerilla warfare. A rapid decision77 and instant exemplarity are essential, if the situation is to be restored. If the Charter requires that an alleged contemnor be tried by a judge other than the judge before whom the alleged contempt occurred, and that he have the right to call witnesses and make full answer and defence, then the better response would have been to require all contempt offences to be tried on indictment with provision for a speedy trial. If some disruptive conduct is not serious enough to warrant the creation of a criminal record, perhaps it should not be proscribed by the criminal law. One other feature of the citation procedure outlined in the Bill that should be re-examined is the organization and numbering of the provisions. Most of the sections refer to other sections and subsections of the contempt or bail provisions of the Code. Repeated reference to other sections of the Code is awkward and unwieldy. The numbering of these provisions does not make the task any easier. For example, proposed subsection 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 subsection 457(8), apply, with such modifications as the circumstances require, in respect of a person brought under the authority of section 131.17 before a judge, who shall accordingly have the powers and duties assigned to a justice by any of those sections and subsection 457.8(2). Before these provisions are enacted, the numbering scheme should be simplified, and the citation procedure sections redrafted to avoid excessive cross-referencing.

3. Appeal Procedures

Another important feature of the Bill is the proposed repeal of section 9 of the Code. 7 8 The provisions of Parts XVIII and XXIV of the Code would govern appeals from cases tried on information or on indictment. 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 conviction or sentence to a court with general appellate jurisdiction over the decision of the judge who convicted or sentenced him.7 9 No provision is made for an appeal by the Attorney General. These provisions avoid the problem of having to determine whether a contempt was committed in the face of 80 the court.

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 the sentence imposed, whereas a person summarily convicted of contempt not in the face of the court could appeal from conviction and against the sentence imposed. For an illustration of the difficulties caused by this distinction, see McKeown v. The Queen, supra note 65. Ottawa Law Review [Vol. 16:316

D. Conclusion

Abolishing the common law power to punish contempt of court and replacing it with contempt offences and related procedures in the Criminal Code is clearly desirable. Judges, lawyers, litigants and members of the media will be able to determine with greater precision what conduct is proscribed, and the consequences of engaging in such conduct. For this reason, the contempt provisions of Bill C-19 should be supported. Several features of the Bill could, however, be improved. The offence of disruption should be redefined, to limit its scope to serious conduct only. Some of the language used in the Bill should be improved. Terms such as "other disposal" and "public interest" are too imprecise to be of much assistance to citizens who want to avoid criminal liability for contempt. If a summary procedure is to be retained, mechanisms must be provided to ensure that it is expeditious. If the rights of an accused and expeditiousness cannot coexist, then there is no place for a summary procedure in our Criminal Code. Finally, greater attention must be paid to the organization and numbering of these provisions to avoid the unwieldiness of the existing bail and wiretapping provisions of the Code.