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Criminal Contempt of Court Procedure: a Protection to the Rights of the Individual

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Criminal Contempt of Court Procedure: a Protection to the Rights of the Individual VOL . XXX MARCH 1951 NO . 3 Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual J. C. MCRUERt Toronto What I have to say may be prefaced by two quotations, the first from Chambers Encyclopaedia : There is probably no country in which Courts of Law are not furnished with the means of vindicating their authority and preserving their dignity by calling in the aid of the Executive in certain circumstances without the formalities usually attending a trial and sentence. Of .this the simplest instance is where the Judge orders the officers to enforce silence or to clear the court. and the second from Bacon's Abridgment: Every court of -record, as incident to it, may enjoin the people to keep silence, under a pain, and impose reasonable fines, not only *on such as shall be convicted before them of any crime on a formal prosecution, but also on all such as shall be guilty of any contempt in the face of the court, as by giving opprobrious language to the judge, or obstinately refusing to do their duty as officers of the Court and may immediately order them into custody.' . To. these I add two other quotations: A Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are * Based on an address delivered to the Lawyers Club, Toronto, on January 24th, 1952 . t The Hon . J. C. McRuer, Chief. Justice, High Court of Justice, Ontario . ' (7th ed.) Vol . 2, p. 399. 226 THE CANADIAN BAR REVIEW [VOL. XXX entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community .2 From the earliest period of our history this authority has been exercised .3 A contempt may be either a criminal contempt or a civil con- tempt. The difference between contempts criminal and contempts civil seems to be that contempts which tend to bring the admin istration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature, but a contempt in disregarding the orders of a judge of a civil court is not criminal in its nature. It is the obstruction or interference with the fair administration of justice with which the law of criminal contempt is concerned, and it has nothing to do with the personal feelings of the judges; it is not a power to be used for the vindication of the judge as a person,4 and no judge should allow his personal feelings to have any weight in the matter. There is no law which precisely and comprehensively defines contempt of court, nor are there landmarks pointing out the bound- aries in all cases.5 Criminal contempt of court may be defined as any act done or any thing published tending to obstruct, impair or interfere with the fair administration of justice or to bring the court or judge into contempt or lower his authority ; or any act done or writing published tending to obstruct or interfere with the due course of justice or lawful process of the courts. The history of the law of contempt is long and may be passed over briefly. The judicial process in England had its origin in the King as the fountain of justice and even today the judges in Can ada sit as the King's Justices. In theory, a contempt of court was originally regarded as a contempt of the King, but in practice we are much more concerned with the contempt, not as affecting the dignity of the judge, but as it may affect the power and authority of the court as a protection to the rights of the individual . Criminal contempts may be divided into three classes: (1) con- tempts committed in the face of the court or coram curia; (2) com- ments on cases pending in the courts ; (3) scandalizing the court, by the publication of scandalous matter of the court itself-6 Inferior courts have power to punish only contempts coram curia. A superior court has the power to punish contempts of in- ferior courts which do not occur coram curia. In such cases the 2 Oswald's Contempt of Court (3rd ed., 1911) p. 9 (italics added) . a Best J. in Rex v. Dav son (1821), 4 B. & Ald. 329, at p. 340 . 4 McLeod v. St. Aubyn, [18991 A.C. 549, at p. 561. 1 Ibid., at p. 561. 6 Ibid., at p. 561. 1952] Criminal - Contempt of Court Procedure 227- proper, practice is to move in a superior court for an order for committal. Conterhpts committed in the face of 'the court include dem- onstrations in the courtroom by shouting, noisy behaviour, ap- plauding a verdict of a jury or decision of a judge; refusing to give evidence when properly subpoenaed as a witness or to answer relevant questions; refusing to leave the courtroom when ordered to do so or to obey the orders of the court or its officers with respect to a trial which is in progress, whether civil or criminal, or using abusive or disrespectful language to a judge presiding at the trial. The fundamental principle underlying the law on contempt of court is that the administration of justice is carried on as a process of orderly government. It is in the interest of every member of so ciety that the law should be respe9ted. It is unnecessary to say that it can only be properly administered in a dignified and orderly manner. I say with emphasis that the law of contempt of court does not exist for the protection of judges but for the protection of the individual right of every citizen to an independent admin- istration of justice free from influence or intimidation by improper conduct of any sort. The phrase "contempt of court" is somewhat misleading. The mischief concerned consists, not in some attitude towards the court itself, but in conduct tending to prejudice the position of a person having a cause before the court for decision. In other words, what is really in question is nothing attacking the status of the court as a court, but something which may, affect the rights of citizens.? We now pass to the discussion of acts done, words spoken or written, which may tend to interfere with the fair administration of justice. This branch of the subject is more important in a trial by jury than in a trial by a judge without a jury, but it is never- theless important in all trials, and particularly important in Grim-- inal trials. No judge or juror should be embarrassed in arriving at his de- cision by an. expression of opinion on the case by anyone. He should not be put in a position where, if he decides in accordance with the opinion expressed or the popular, sentiment existing, it can be said he has been influenced ; nor,should he be put in the position where -it could -be said he was antagonistic to any opinion or pop- ular sentiment. Everyone who has a matter before a court of just- ice for decision has the right to have the decision of the court 7 Lord Hewart C. J., in Rex v. Daily Mirror; ex parte Smith, [1927] 1 K.B. 845, at p. 847. 228 THE CANADIAN BAR REVIEW [VOL. XXX founded on the law as the court conceives it to be and the evidence properly submitted. The simplest example of conduct of the class I am now deal- ing with is a communication with a juror or a judge before judgment is given about the subject matter of a trial. In my ex perience I have never known this to occur except by anonymous letter or through the newspapers. It may have occurred but if it has it has been without my knowledge. Scandalizing the court itself without external pressure or in- fluence brought to bear directly or indirectly is a contempt. A discussion of the subject as it applies to those contempts which are not committed in the face of the court may be sub- divided into five subdivisions : (a) contempt by the publication of evidence or comments be- fore the case is heard; (b) publication of comments during the trial; (c) publication of comments after trial and before an appeal has been heard ; (d) criticism of the administration of justice; (e) responsibility for contempt ; (f) right of appeal. Publication of Evidence or Comments before the Case is Heard Proceedings are pending as soon as the warrant or summons is is- sued in a criminal case and, in a civil case, as soon as the writ is issued. Printing without comment and circulating the brief, plead- ings, petition or evidence on one side only is a contempt, and it is even improper to publish, in reporting a case, a portion of an affidavit not read in court and reflecting on the character of one of the parties, although other parts of the affidavit were read or submitted.,, I emphasize this particularly, applying as it does to civil cases, for it is within one's observation that there are pub- lished in headlines allegations contained in a statement of claim or an affidavit which has just been filed in court before there has been any opportunity to reply, casting reflections on the character of a party to'the action.9 It should be apparent to everyone how such a practice, if permitted, allows the courts and the press to be used as a means of blackmail.
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