The Canadian Bar Review

THE CANADIAN BAR REVIEW

VOL . XXXIV FEBRUARY 1956 NO. 2

CIVIL AND CRIMINAL ASPECTS OF CONTEMPT OF COURT

HUGO FISCHER* Vancouver

I. The Various Classes of Contempt Contempt of court, understood as a legal term, principally signi- fies disrespect for what is entitled to "legal regard". In its origin it consisted of an offence against the sovereign as the fountain of justice, or against his royal palace, where justice was said to have been dispensed by the king in person. Contempt was considered as an offence because it imputed to him a breach of the corona- tion oath to "administer justice to his people" .' Contempt has always been divided into two separate classes : civil and criminal. Civil contempt, which consists in disobedience to the orders of a Court, is a wrong of a private nature as between the parties

*Hugo Fischer, Dr. jur. (Prague), LL.B. (London), of the British Columbia bar. The essay that follows was awarded the first prize in the sixth Cana- dian Bar Association Essay Competition . I Oswald, ontempt of Court (3rd ed., 1911) p. 1 ; Sparks v. Martyn (1669), 1 Vent .' 1, 86 E.R. 1 ; Cockburn C.J. in R. v. Lefroy (1873), L.R . 8 Q.B. 134, at p. 137 ; McDonald v. Lancaster Separate School Trustees (1916), 29 D.L.R. 731, at p. 738 (Ont.). On the history of the contempt jurisdiction see : Sir John C. Fox in (1908), 24 L.Q. Rev. 184 and 266 ; (1909), 25 L.Q. Rev. 238 and 354 ; (1920), 36 L.Q. Rev. 394 ; (1921), 37 L.Q. Rev. 191 ; (1922), 38 L.Q. Rev. 185 ; (1924), 40 L.Q. Rev. 43 ; and The History of Contempt of Court (1927) . Cf. also Wilmot C.J. in R; v.. Almon (1765), Wilm. 243, at p. 271, 97 E.R. 94, at p. 105, an opinion which has sometimes been treated almost with the respect due to a decision by a court of law, e.g. in: Boucher v. The King, [19511 S.C.R. 265, at pp. 303 and 343, or in Canadian Transport (U.K.) Ltd. v. Alsbury (1952), 7 W.W.R. (N.S .) 49, at p. 74 (B.C. C.A.).

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to a suit, while criminal contempt consists of any act which hinders the administration of justice, and is, therefore, a wrong against the State.2 This distinction has not always been accepted, however, and a recent dictum appears to imply that it does not, in fact, exist.3 Relying on an analysis propounded by Sir John C. Fox,4 I suggest the following classification as a preliminary guide before an analysis of the various classes of contempt with respect to their civil and criminal aspects is embarked upon: (1) Criminal contempt (a) contumelious or obstructive behaviour directed against the court or its process,' (i) contempt in the face of the court, (ii) contempt committed out of court, (b) breach of duty by persons officially connected with the court or its proceedings,' (c) disobedience by a stranger to a court order; 7 (2) Civil contempt (disobedience by a party to a court order).8 Generally speaking, only those cases constitute civil contempt where a party, not an officer of the court, acts in disobedience to an order made against him by a court or judge. Any other contempt is criminal. It is proposed first to show what acts have been held to constitute criminal, and what acts civil, contempt, with special reference to acts that appear to be exceptions to the general rule. Hav ing established a rough guide as to the distinction between the two principal contempt classes, I shall proceed to inquire into the incidents of each class. The final conclusions are preceded by a short reference to the distribution of the constitutional powers with respect to contempt legislation. (a) Criminal (or special) contempt Every contempt is in some respect an obstruction of justice,' 2 Arthur L. Goodhart, Newspapers and Contempt of Court in Eng- lish Law (1935), 48 Harv . L. Rev. 885, at pp. 885-886. And see Contempt of Court in (1923), 36 Harv . L. Rev. 617, and Contempt of Court in 6 Encyclopaedia Britannica (1947). a Sidney Smith J.A. in Canadian Transport (U.K.) Ltd . v. Alsbury, supra, footnote 1, at p. 68. ' The King v. Almon (1908), 24 L.Q. Rev. 184, at p. 188, and The Nature of Contempt of Court (1921), 37 L.Q. Rev. 191, at p. 192. a Infra, text preceding footnotes 9-32. 6 Infra, text preceding footnotes 163-179 . ' Infra, text preceding footnotes 37-51 . a infra, text preceding footnotes 33-36. Hardwicke L.C. in The St. James's Evening Post Case (1742), 2 Atk. 469 ; 26 E.R. 683.

1956] Civil and Criminal Aspects of'Contempt of Court 123 a sinning against the majesty of the law," and the time-honoured punitive jurisdiction over such offences is now undisputed." Con- tempt of court has been defined as a disobedience to the Court, or an opposing or a dispising the authority, justice or dignity thereof. It commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree of the Court. Sometimes it arises by one or more; their opposing or disturbing the execution or service of the process of the Court, or using force to the party that serves it; sometimes by using words importing scorn, re- proach or diminution of the Court, its process, orders, officers, or ministers, upon executing or serving such process or orders. It is also a contempt to abuse the process of the Court by wilfully doing any wrong in executing it; or making use of it as a handle to do wrong; or to do anything under colour or pretence of process of the Court without such process or authority.1z There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court, in prejudicing man- kind against persons before the,cause is heard.13 [A]ll acts tending to intimidate, or to unduly influence persons concerned in the administration of justice; and all writings, letters or iu Erle C.J. in Ex parte Fernandez (1861), 10 C.B. (N.S.) 3, at p. 38 ; 142 E.R. 349, at p . 363. 11 Wilmot C.J. in his opinion entitled R. v. Almon, supra, footnote 1, at p. 254, quoted by Williams J. in Miller v. Knox (1838), 4 Bing. (N.C.) 574, at pp. 587-588 (H.L.) ; Rigby L.J. in Seaward v. Paterson, [1897] 1 Ch. 545, at p. 558 ; R. v. Wilkinson (1877), 41 U.C.Q.B. 47, at p. 97; 4 Bl. Comm. 280-8 . The notion that this jurisdiction dates from time im- memorial has been exploded by Sir John C. Fox, The King v. Almon, supra, footnote 4, and Eccentricities of the Law of Contempt of Court (1920), 36 L. Q. Rev. 394. See further, Walter Nelles, The Summary Power to Punish for Contempt (1931), 31 Col. L. Rev. 956. 12 Williams and Patteson JJ. in Miller v. Knox, supra, footnote 11, at pp. 588, 593-594, E.R. 916 and 918 ; Viner's Abridgment, title Contempt, A; Kitcat v. Sharp (1882), 31 W.R. 227 ; Ilkley Local Board v. Lister (1895), 11 T.L.R. 176 ; R. v. Gray, [1900] 2 Q.B. 36, per Lord Russell of Killowen C.J. at p. 40 ; R. v. New Statesman (1928), 44 T.L.R. 301 ; Re William Thomas Shipping Co., [1930] 2 Ch. 368 ; Ambard v. A.-G . of Trini- dad and Tobago, [1936] 1 All E.R. 704 (P.C.); A.-G. v. Tonks, [1939] N.Z.L.R. 533 ; R. v. Bochner, [1944] 3 D.L.R. 788 (Ont.) ; R. v. Bolam (1949), 93 Sol. Jo. 220 ; R. v. Thomas, [1952] 3 D.L.R. 622 (Ont.) ; R. v. Evening Standard Co., Ltd., [1954] 1 All E.R. 1026; R. v. Bryan (1954); 108 Can. C. C. 209 (Ont:) ; R. v. Buller (1954), 108 Can. C. C. 352, per Scott C.J. at pp. 354-355 (Que.). See also : Re Clements (1877), 46 L.J. Ch. 375 ; R. v. Payne, [1896] 1 Q.B. 577; R. v. Daily Mail (1928), 44 T.L.R. 303 ; Gaskell & Chambers, Ltd. v. Hudson, [1936] 2 K.B. 595 ; and Staples v. Isaacs, 13 [1939] 4 D .L.R. 556 (B.C.)., Lord Hardwicke in Thé St. James's Evening Post Case, supra, footnote 9, at p. 471, E.R. at pp. 684-685 ; R. v. Wilkinson, supra, footnote 11 ; Austman v. Bjarnason, [1932] 2 W.W.R. 20.(Sask. C.A.) ;,R. v. Thomas, supra, footnote 12.

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publications, which have for their object to pervert, or to obstruct, the ordinary course of justice, are contempts of Court." The jurisdiction of the courts to punish summarily extends to a great variety of acts and omissions. The immediate target of the offence need not necessarily be members of the court. Con tempt may be offered either in open court or otherwise, to judges," to judge and jury," to magistrates'17 to commissioners appointed "Cross J. in Fournier v. A.-G. (1910), 17 Can. C. C. 108, at p. 118 . Publishing, pendente lite, untrue statements concerning the evidence : R. v. Evening Standard Co., Ltd., supra, footnote 12, commented upon in (1954), 70 L.Q. Rev. 308 and 465; and by R. Holmes in (1954), 21 The Solicitor 203. Publishing a newspaper article tending to prejudice the defendant : R. v. Payne, supra, footnote 12 (attachment refused, article not calculated to prejudice trial) ; Metropolitan Music Hall Co. v. Lake (1889), 58 L.J .Ch. 513 (attachment refused, publication made without knowledge of pending proceedings) ; The St. James's Evening Post Case, supra, footnote 9 ; R. v. Tibbits, [1902] 1 K.B. 77 (conviction on indictment affirmed) ; R. v. Clarke (1910), 27 T.L.R. 32 ; R. v. "Evening Standard" (1924), 40 T.L .R. 833 ; Re Campbell, [1934] 3 W.W .R. 593 (Alta. C.A .) ; Re R. v. Solloway, [1936] 4 D.L.R. 321 (Ont .) ; R. v. Wallbridge, [1936] 4 D.L.R. 376 (Ont.) (technical contempt only, motion for attachment dismissed) ; R. v. McDonald, [1939] 4 D.L.R. 377 (Ont. C.A., obiter) ; R. v. Bochner, [1944] 3 D.L.R. 788 (Ont .) ; R. v. Thomas, supra, footnote 12 ; R. v. Bryan, [195413 D.L.R. 631 (Ont.); R. v. Buller, supra, footnote 12 ; R. v. Western Printing & Publishing Ltd. (1954), 34 M.P .R. 129 (Nfld.) ; R. v. Robinson & Co., Ltd. (1954), 34 M.P.R. 257 (Nfld.) (publishers of newspaper and proprietors of radio station attached for publications tending to influence jurors) . Misleading the court when suing for a gam- ing debt: R. v. Weisz, [1951] 2 All E.R. 408 ; and see the comment by J. D. B. Mitchell, The Danger of John Doe (1952), 15 Mod. L. Rev. 74. Collusion in divorce proceedings : Laidler v. Laidler (1921), 90 L.J.P . 28, per McCardie J. at p. 30: "All conduct which disturbs the course ofjustice falls within the general idea offraud on the Court and contempt of Court" . 16 Assault at the assizes : Anon. (1631), 2 Dyer 188b, n., 73 E.R. 416, see infra, footnote 256; Turquette v. State (1927), 298 S.W . 15. Accusing the judge of high treason in face of the court : Hutton v. Harrison (1638), Hut. 131 ; 123 E.R. 1151. Speaking disrespectfully of a judge: Witham v. Witham (1669), 3 Chan. Rep. 41, 21 E.R. 723 ; Phillips v. Hedges (1736), Cooke, C.P . 132, 125 E.R. 1004 ; Martin's Case (1747), 2 Russ . & M. 674, 39 E.R. 551 ; Skipworth's Case (1873), L.R. 9 Q.B. 230 . Publishing an article containing personal abuse of a judge with reference to his conduct as judge in a case that has terminated: R. v. Gray, supra, footnote 12 ; but see McLeod v. St. Aubyn, [1899] A.C. 549. Solicitor writing offensive letter to a member of the court: Re Miller (1921), 54 N.S.R . 529 . 16 Imputing injustice and unfairness in a public speech : Skipworth's Case, supra, footnote 15. Juror appearing intoxicated in court: R. v. Rodgers (1952), 103 Can. C. C. 168 (Ont .). Imputing wrong motives to judge and using opprobrious words of judge and jury in a newspaper article after trial : Re Nicol, [1954] 3 D.L.R. 690 (D.C.), and see MacKay v. The Southam Co. Ltd., No. 1682/54 (D.C.) (unreported), a defamation case based on the same facts as Re Nicol. In Re Nicol the newspaper columnist and his employers were fined for contempt of court. The defamation suit instituted by eight of the jurors failed, but this judgment was reversed on appeal. At the date of writing the time for an appeal to the Supreme Court of Canada had not yet elapsed. As to the U.S . jurisprudence on cases concerning the liberty of speech and press, see, e.g., Bridges v. California (1941), 314 U.S. 252 ; 86 L.ed . 192 (Superior Court of California), and a note on Weston v. Commonwealth (1953), 77 S.E. 2d 405, in (1953), 22 Geo. Wash. L. Rev. 242. 17 R. v. Wrightson (1708), 2 Salk. 698; 91 E.R. 591 .

1956] Civil and Criminal Aspects of Contempt of Court 125 by the court," to a party litigant," to a juror," to the solicitor of a party," to the Crown prosecutor," to bailiffs," to process servers14 or to witnesses." Contempts of the nature here dealt with are, under the provisions of the Quebec Code of Civil Procedure," only punishable if committed in facie curiae. The distinction between such Contempts and Contempts committed elsewhere has gained importance for the whole of Canada since the coming into force of the new Criminal Code?' Where an act not committed in the face of the court appears to be directed against the court or a member thereof, it will not always be easy to decide whether contempt proceedings are pro per, because even an assault upon a judge need not constitute contempt, unless made when he is acting in his judicial capacity." It was also held that criticism of a judge of such a nature that it might have been made the subject of proceedings for libel, but was not in the circumstances calculated to obstruct or interfere with the course of justice or the due administration of the law . . . did not constitute a contempt of Court.29 Contempt that was said to "savour of criminality"" and which makes the contemnor liable to punishment as upon a summary conviction for an offence against the law" may be committed by is Miller v. Knox, supra, footnote 11 . 19 Littler v. Thomson (1839), 2 Beav. 129 ; 48 E:R. 1129. 10 Assault: Carlion's Case (1345), 2 Dyer 188b; 73 E.R. 416. Abuse: Ex parte Pater (1864), 5 B. & S. 299 ; 122 E.R. 842. 21 Re Johnson (1887), 20 Q.B.D . 68. ?2 R. v. McInroy (1915), 26 D.L.R. 615 (Alta). 23 Lewis v. Owen, [1894] 1 Q.B. 102. 24 Assault : Rove v. West (1558), Cary 38, 21 E.R. 21 ; Dastoines v. Apprice (1580), Cary 91, 21 E.R. 49 ; Osborne v. Tuthell (1583), Ch. Cas. in Ch. 168,21 E.R. 98 ; Giles v. Lackington (1584), Ch. Cas. in Ch. 177, 21 E.R. 103 ; Williams v. Johns (1773), Dick. 477, 21 E.R. 355 ; Adams v. Hughes (1819),'l Brod. & Bing. 24, 129 E.R. 632. 25 Assault : Brannon v. Commonwealth (1915), 172 S.W. 703 (Court of Appeals, Kentucky); State v. Little (1917), 94 S.E. 680 (S.C. of North Carolina). 26 Article 18. 27 Infra, footnote 54, and see infra, text preceding footnotes 145-156. 28 See the opinion of Wilmot J. in R. v. Almon, supra, footnote 1, at p. 265, E.R. 103 : "Striking a Judge in walking along the streets, would not be a contempt of the Court". 21 Re Bahama Islands, [1893] A.C. 138 (P.C.), headnote. See also Mc- Leod v. St. Aubyn, supra, footnote 15, at p. 561 ; Meriden Britannia Co . v. Walters (1915), 34 O.L.R. 518, at p. 520; Helmore v. Smith (2) (1886), 35 Ch. D. 449, at p. 455 (C.A.) ; R. v. Wilkinson, supra, footnote 11, at p. 44. "North J. in Re Gent (1889), 40 Ch. D. 190, at p. 197 (defrauding, trust moneys). 31 Willes J. in Ex parte Fernandez, supra, footnote 10, at p. 39, E.R. at pp. 363-364 ; Lindley J. in O'Shea v. O'Shea (1890), 15 P.D. 59, at p. 64 (C.A.).

126 THE CANADIAN BAR REVIEW [VOL . XXXIV conduct, by word of mouth, or by written publication. "Trial by newspaper", as it has sometimes been called, belongs to this latter category. It has been defined as a publication referring to a matter under consideration [by the court] and [constituting] in effect a threat to its impartial disposition. It must create an atmos- pheric pressure incompatible with rational impartial adjudication. But to interfere with justice it need not succeed.33

(b) Civil contempt The foregoing contempts have been classed as criminal or special. From these are distinguished the non-criminal or ordinary contempts, contempts in procedure or, as they have also been called, quasi-contempts.33 Of civil contempts it has been said that : A notion prevails that a contempt must be some disrespect shewn to the Court. . . . This is very erroneous . Contempts are usually incurred by a party's neglect or refusal to do some act which is in justice due to the other party of the cause ; such as the giving of answers, the payment of costs or the like ; and the imprisonment which follows is at the prayer of the other party-a prayer which the Court cannot refuse to accede without a breach of its duty and a denial of justice .34 There are obvious contempts and contempts ; there is an ambigu- ity in the word; and an attachment may sometimes be regarded as a civil proceeding. For instance, where an order was made by the Court of Chancery in former days there was no mode of enforcing such order but by attachment. We must not, therefore, be misled by the words `contempt' and `attachment', but we must look at the substance of the thing.35 It is not always easy to draw the distinction between the two classes of contempt : With respect to the distinction between civil and criminal contempts . . . I agree that there may oftentimes be a difficulty in finding, first, authority for deciding where the line is to be drawn ; and, secondly, instances in practice for drawing it.3e

(c) Amphibious acts One and the same act may constitute criminal or civil contempt depending on the person of the contemnor. 32 Frankfurter J., dissenting, in Bridges v. California, supra, footnote 16, at p . 291 ; L.ed. at pp. 218-219 . 33 Black's Law Dictionary (3rd ed.) p. 417. 34 Sir John Nicholl in Barlee v. Barlee (1822), 1 Add . 301, at pp. 304- 305 ; 162 E.R. 105, at pp. 106-107 . 36 Lindley L.J . in O'Shea v. O'Shea, supra, footnote 31, at p . 64. 38 Brougham L.C. in Wellesley v. Beaufort (1831), 2 Russ . & M. 639, at p. 667 ; 39 E.R. 538, at p. 548. And see the U.S. authorities quoted by Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal (1943), 43 Col. L. Rev . 780.

1956] . Civil and Criminal Aspects of Contempt of Court 127

A party to proceedings that result in a restraining order against him commits civil contempt, if he disobeys the order. Wilful disobedience to , the order by anyone else constitutes, however, criminal contempt. The authority for this ._proposition is Seaward v. Paterson37 In this case the plaintiff, mortgagee of a house, obtained any order against the defendant tenant restraining him from interfering with the quiet enjoyment ~of the building by the plaintiff and his sub-tenants. The defendant, assisted by two other per-, sons - who were well acquainted with the contents of the restraining order, disobeyed, it and all three were committed to prison and their appeal against the committal was dismissed. In his judg-. ment Lindley L.J." drew the distinction already referred to between the two classes of contempt. The learned judge explained that the consequence of this distinction was that the party to the procedure could settle the dispute with his opponent, a capacity which a stranger to the action lacked. The jurisdiction to hold persons in . contempt who are not parties to an injunction, on the ground that they were in breach of the injunction, was well, established at the time Seaward v. Paterson was decided",and has since been followed . 40 The, pur-, pose of distinguishing between parties to the action and strangers, when classifying a contempt as civil or criminal is, it is submitted,_ to protect the plaintiff who obtained the restraining order. Such, an order can be obtained only against a person who has been made a party to, the proceedings that led to the order. The plain-, tiff would be left without effective redress if the restraining order could be breached by strangers to the proceedings. This redress is afforded by the criminal contempt jurisdiction against strangers who wilfully act in breach of an order.41 Most unfortunately for our contempt jurisprudence, the language in Seaward v. Paterson was referred to in a case that had nothing to do with the breach of an injunction by strangers to the

37 ,Supra, footnote 11 . 38 At pp. 555-556. 39 See, e.g ., Lewes v. Morgan (1818), 5 Price 42 and 518, at pp. 520- 521, 146 E.R. 530 and 681, at p. 682; Wellesley v. Mornington (1848), 11 Beav . 180 and 181, 50 E.R. 785 and 786 ; and Avery v. Andrews (1882), 51 L.J. Ch. 414. Persons aiding a civil contemnor or indemnifying him against the consequences of his contempt have been held liable for criminal contempt : e.g ., Ex paste King (1802), 7 Ves . Jun. 312, 32 E.R . 127 ; Ex parte Dixon (1803), 8 Ves Jun. 104, 32 E.R. 291. 49 E.g., in Ruthig v. Stuart Brothers Ltd. (1923), 53 O.L.R. 558 (C.A .), and in Kuzych v. White, [1950] 1 D.L.R. 537 (D.C.); reversed on other grounds, [1950] 3 D.L.R. 617 (B.C. C.A.) . 41 Against this view : W. K. Urban, Equity etc . (1953), 51 Mich. L. Rev. 1084, a note on Stewart v. State (1953), 254 S.W. 2d 55.

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action. In Scott v. Scott' Lord Atkinson criticized Lord Lindley for not having grappled with the absurdity of a man who does a certain thing which he was not prohibited from doing thereby becoming a criminal, and a man who does the same thing, though he was prohibited from doing it, not becoming a criminal. This criticism found its way into an injunction case" with the result that the court disregarded a settlement reached between the contemnor and his opponent and affirmed a judgment holding the party enjoined and his accomplices equally guilty of criminal contempt. The facts of the Poje case, just referred to, were briefly these. The plaintiff company in a civil action obtained against one Poje, an officer of a trade union, an ex parte injunction restraining him from picketing. In defiance of this order, Poje reinforced his picket line, whereupon the plaintiff moved for an attachment of Poje and some of his associates. On the return of the motion counsel for both parties produced a memorandum of settlement, by which the picketing was to be called off, work was to be re- sumed, the injunction was to be withdrawn and further proceedings were to be dropped. The court disapproved of this settlement and said that the injunction had not been granted for bargaining purposes. Although the plaintiff had withdrawn from the case, and therefore the restraining order as the basis for any further proceedings had disappeared, the case was adjourned and the court proceeded proprio motu to deal with the contempt as one directed against the authority of the court. Poje received a jail sentence and was fined $3,000 and those of his associates found guilty were fined $300 each with jail sentences in default of payment. Appeals to the Court of Appeal and to the Supreme Court of Canada were dismissed.44 This case is important, because it virtually abolished the contempt classification as criminal and non-criminal according to the person of the contemnor, a classification apparently well set tled by Seaward v. Paterson and related cases45 Furthermore, the majority of the Court of Appeal46 based their judgment inter alia

42 [1913] A.C. 417, at pp. 458-459 (H.L.). 48 Poje v. A.-G . of B.C., [1953] 2 D .L.R. 785, per Kellock J. at p. 789. 44 Canadian Transport (U.K.) Ltd. v. Alsbury (1952), 6 W.W .R. (N.S.) 473 (B.C.) ; affirmed 7 W.W.R. (N.S.) 49 (B .C. C.A.), supra, footnotes 1 and 3 ; affirmed sub nom. Poje v. A.-G. of B.C., supra, footnote 43 . 45 Supra, footnotes 37, 39 and 40. 16 7 W.W.R. (N.S.) 49.

1956] Civil and .Criminal Aspects of Contempt of Court 129

on the dubious authority of R. v. Almon,41 while the majority of the Supreme Court of Canada stressed [t]he context in which these incidents occurred, the large number of men involved and the public nature of the defiance of the Court,48 without venturing an opinion whether the same conclusion would have been reached had the contempt not been committed in public and not in the teeth of repeated warnings by an officer of the court. Although not unanimous in their judgment, all members of the Court of Appeal dealt with the case on its merits, notwith- standing the classification of the contempt as criminal and although at that time no appeals lay from criminal contempt-pon- victions. With respect to the decision of the Supreme Court of Canada that the contempt also amounted to the indictable offence of disobeying a court order," there appear to arise difficulties, when we consider that the section of the Criminal Code invoked'° makes disobedience to court orders a criminal offence only where no "other mode of proceedings is expressly provided by law". It is, submitted that such proceedings, namely,, civil proceedings, were available in this case against those defendants against whom the restraining order had been obtained . The large number of the contemnors involved" and the public nature of the offence, stressed by the Supreme Court of Can- ada, appear to be crucial points of the ratio of the case and, in so far as the presence of similar conditions will turn every contempt into a criminal contempt, the Poje case has created new law. The law may for certain purposes classify an act or omission as civil, and for other purposes consider it to be criminal contempt. So, for example, disobedience to a writ of habeas corpus was held to be civil contempt only and the contemnor therefore, where the law excluded appeals in criminal contempt proceedings, was held entitled to an appeal against an order of committal, 52 while parliamentary privilege, though protecting from civil pro- 4r Supra, footnote 1. See Sir John C. Fox, The King v. Almon, and Eccentricities of the Law of Contempt of Court, supra, footnote 11 . 4s Kellock J., [1953] 2 D.L.R. at p. 795. 4o At p. 796. 5o S. 108, a re-enactment of s . 165 of the 1927 Code. This section appears to be the corollary to Seaward v. Paterson, supra, footnotes 11 and 37. There were up to 190 pickets led by Poje: 7 W.W .R. (N.S .) at p. 6451. 52 R. v. Barnardo (1889), 23 Q.B.D. -305 . In Quebec the court may impose coercive imprisonment for disobedience to an order of habeas corpus : articles 1118 and 834 C.C.P., infra, footnote 64.

130 THE CANADIAN BAR REVIEW (VOL . XXXIV cess, was held never to extend to cases "where the object of the process [was] the delivery up of a person wrongfully detained by a party"." (d) Statutory contempts While most contempts are creatures of the common law, some of them have been reduced to statutory crimes. The new Criminal Code," for example, provides punishment for witnesses who re fuse to be sworn, answer questions, produce papers or sign de- positions," or fail to attend or remain in attendance for the purpose of giving evidence." It also makes liable to punishment for contempt any person who fails to comply with the terms of an order requiring him to release an exhibit for the purpose of a test or examination.57 Some provincial statutes relate to contempt," but most of these enactments are merely declaratory of the judge-made contempt law.59 The code extended certain contempt powers to judges and magistrates," while provincial statutes have done the same with respect to various tribunals." Statutory contempts may again be criminal or non-criminal. Where the object of the contempt legislation is the suppression of unlawful interference with the smooth working of the courts, for

"Brougham L.C. in Wellesley v. Beaufort, supra, footnote 36, at p. 673 ; E.R. at pp. 550-551 . 51 2-3 Elizabeth 2, 1953-1954, c. 51, proclaimed in the Canada Gazette, Extra No. 14, September 20th, 1954, to come into force April 1st, 1955 . 51 S. 457. It is submitted that perjury is not contempt of court: Matter of Michael (1945), 326 U.S . 224 (3rd Cir.). 'IS. 612. 'IS. 514. Is E.g., the Jury Act, R.S.A., 1942, c. 130, s . 46, and the Jurors Act, R.S.O., 1950, c. 191, s. 111, declare speaking to a juror to be contempt of court. 59 E.g., the Judicature Act, R.S.A., 1942, c. 129, s. 8 ; or the Habeas Corpus Act, R.S.N.B., 1952, c. 101, ss. 1, 3 and 5(2) . a° Sections 425 and 426. si Extending contempt powers to the Divorce Court : Divorce Court Act, R.S .N.B ., 1952, c. 63, ss. 22 and 23; to County Courts : County Court Acts, R.S.N.B ., 1952, c. 45, ss. 16 and 62; R.S.O., 1950, c. 75, ss . 32 and 33 ; to Division Courts : Division Courts Act, R.S.O ., 1950, c. 106, s. 199 ; and see the County Magistrates Act, R.S.N.B., 1952, c. 46, ss. 38 and 55 ; the Summary Convictions Act, R.S.N.B., 1952, c. 220, ss . 2(1), 14 (5), 16, 17 and 49; R.S.N.S., 1923, c. 224, s. 24 ; and the Summary Jurisdiction Act, R.S.Nfld., 1952, c. 117, s. 34. See also the Public In- quiries Act, R.S .A., 1942, c. 139, s. 3 ; R.S.B.C., 1948, c. 162, s. 11 ; R.S.N.S., 1923, c. 13, s. 5 ; R.S.O., 1950, c. 308, s. 2 ; R.S.P .E.I., 1951, c. 130, s. 4 ; R.S .S., 1953, c. 15, s. 4; the Manitoba Evidence Act, R.S .M., 1954, c. 75, ss. 87-89 ; Inquiries Act, R.S.N.B., 1952, c. 112, ss. 5-7 ; the Evidence (Public Investigations) Act, R.S.Nfld., 1952, c. 131, s . 3 ; Public Inquiry Commission Act, R.S.Q., 1941, c. 9, ss. 7, 10-12.

1956] Civil and Criminal Aspects of Contempt of Court 13 1 example, punishment for the unlawful practice of law, the contempt thus to be suppressed is criminal. Where the legislation aims at compelling recalcitrant litigants to abide by, orders of the, judiciary, it is non-criminal in nature. (e) Contempt of court under the Quebec Code of Civil Procedure Under the Quebec Code of Civil Procedure there exist two . classes of contempt. One is contempt in the presence of the court. It may be committed by disturbing order, the utterance of signs of approbation or disapprobation, or the refusal to withdraw or to obey the orders of the court or judge or officers acting under their authority. The punishment is inflicted summarily and may, be by fine or imprisonment in the discretion of the court or judge. If the contemnor is a person discharging any functions before the court, he may also be suspended from his function." . The power of the .court relating to the other class of contempt is coercive and consists in arresting the contemnor and placing him in the common jail of the district where the writ issued or in the nearest jail." The cases in which coercive imprisonment is permissible are enumerated in the code : Coercive imprisonment under a judgment rendered in a civil action is not allowed except against the persons and in the cases specified in the following Articles [that is, articles 833 and 834 C.C.]P.l. 64 sz Articles 18 and 19 C.C.P. 83 Art. 839 C.C.P. ' 64 Art. 832 C.C.P. The articles referred to (articles 833 and 834 C.C.P.) read as follows : "833. The persons liable to coercive imprisonment are: 1 . Tutors, curators, and trustees, for whatever is due by reason of their administration to those whom they-represénted ; . ; 2. Any person indebted as sequestrator, guardian or ' depositary, sheriff, coroner, bailiff, or other officer having charge of moneys or other things under judicial authority; 3 . Any person indebted as judicial .surety, or for the purchase of property or effects, moveable or immoveable sold in execution of the judgment of a court ; 4. Any person condemned by a judgment awarding damages for personal wrongs, in a sum of fifty dollars or upwards; 5. Any person condemned by a judgment awarding damages under Articles 2054 and 2055 of the Civil Code, in a'sum of fifty dollars or upwards ; 6. Institutes under a substitution, executors or administrators, tutors, . curators and trustees, for the damages occasioned by their frauds. in making investments, or for damages arising from the investments having been made by them otherwise than as provided in Article 981a of the Civil Code or than as prescribed in the will or other instrument respecting the property administered ; 7. Any bailiff who neglects or refuses to execute a writ of summons or of execution, which has been entrusted to him, or who does not execute or return such writ of summons or of"execution within a . reasonable delay.

132 THE CANADIAN BAR REVIEW [VOL. XXXIV The civil nature of coercive imprisonment manifests itself in various ways. The debtor may obtain his release with the creditor's consent" or by abandonment of his property, except in the case provided for in article 834.66 Furthermore, the debtor is protected against arrest on certain occasions s' Coercive imprisonment may also be imposed on a witness who, without valid reason, refuses to answer or to produce documents or other things connected with the suit and in his posses sion es A witness may raise valid objections to incriminating questions" or to questions tending to elucidate what has been revealed to him confidentially in his professional character as religious or legal adviser or as an officer of state, where public policy is concerned.'°

(f) Contempt of Parliament and of the legislatures Contempt of court in its widest sense includes breaches of duty which the subject owes to Parliament and the provincial legislatures. These bodies represent within the different Canadian jurisdictions what the High Court of Parliament represents in England, and contempt offered to them is punishable as contempt of court by the house the jurisdiction of which has been inter- fered with." Although the present paper deals with the contempt "834. Coercive imprisonment may also be ordered for contempt of any process or order of the court or of a judge or for resistance to such process or order, or for any evasion of any such judgment or order, by preventing or obstructing the seizure or sale of property in execution of such judgment or order. "In such cases the term of imprisonment cannot exceed one year, but may be repeatedly inflicted until the process or order is obeyed ." And see art. 1118 C.C.P., supra, footnote 52. ss Art. 864 (3). 66 Art. 864 (5). 67 Art. 841 C.C.P .: "The debtor cannot be arrested : 1. On a non-juridical day ; 2. At any time other than that prescribed for service of summons ; 3. In a place of public worship, during divine service ; 4. During the sittings of the court or of a judge, or before any privileged Tribunal ." 61 Art. 330. 61 Art. 331 ; but see Kushner and Kushner Textile Corporation v. Sapera Bros., Ltd., [19501 K.B. 547 (Que .). ro Art. 332 C.C.P . ; as to notaries : R.S.Q., 1941, c. 263, s. 8 ; physicians: R.S.Q., 1941, c. 264, s. 60 (2) ; and see infra, text preceding footnotes 193- 194 and 229-230 . n B.N.A. Act, 1867, 30 Vict ., c. 3, s. 18, as enacted by the Parliament o£ Canada Act, 1875, 38-39 Vict ., c. 38 (Imp .); the Legislative Assembly Act, R.S .A., 1942, c. 4, s. 45; the Legislative Assembly Privileges Act, R.S.B.C., 1948, c. 181 ; the Legislative Assembly Act, R.S .M ., 1954, c. 141, s. 41(2) ; R.S .N.B., 1952, c. 129; the House of Assembly Act, R.S . Nfld., 1952, c. 3 ; Stats. N.S. 1923, c. 2, s. 28 (1) ; the Legislative Assembly Act, R.S .O., 1950, c. 202, ss. 45 to 48 ; R.S.P.E.I., 1951, c. 85, s. 37 ; R.S.S., 1953, c. 3. ss. 27 and 29(2) ; the Legislature Act, R.S.Q ., 1941, c. 4, s. 53.

0 1956] Civil and Criminal Aspects of Contempt of Court 133 power exercised by courts of law, the inquiry would not be complete without a short reference to a similar power exercised by . the legislative branch of government. As this branch is not concerned with doing justice between party and party, any breach of duty owed to it is to be classified as contempt of a criminal nature. While "the powers, privileges, and immunities of the House of Commons in Canada are practically the same as those of the House of Commons in Great Britain"," those of some provincial legislatures have, by statute, beem assimilated to the powers, privileges and immunities of the Parliament of Canada." Moreover, the British North America Act itself confers the power (if it did not already exist) to pass Acts for defining the powers and privileges of the provincial legislature .74 In particular, provincial statutes have declared certain acts tending to interfere with the smooth working of the legislatures to constitute contempt of court.75 The privilege of Parliament to commit for contempt does not give it jurisdiction to punish for contempt a member of a court .of law for what he did or said in the execution of his functions . A - judge deciding a case, even if it involves a question of parliamentary privilege, cannot therefore be found guilty of contempt of Parliament." Conversely, the bringing of any civil action or prose- cution against, or the causing or effecting ofany arrest or imprisonment of, any member of a legislative body in Canada for or by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise, or by reason of anything said by him before the assembly of which he is a member, is contempt of that body.77 Each house may compel the attendance before it or any of its 72 Davies 7. in Payson v. Hubert (1904), 34 S.C.R. 400, at p. 416 (from N.S.) ; Boyd C. in McLeod v. Noble (1897), 28 O.R. 528, at p. 538. 71 R.S.N.B., 1952, c. 129, s. 1(1) ; R.S.Nfid., 1952, c. 3, s. 18 ; Stats. N.S. 1937, c. 2, s. 21 ; R.S.P.E.I., 1951, c. 85, s. 33. 74 Lord Halsbury L.C. in Fielding v. Thomas, [1896] A.C. 600, at p. 610 (P.C. from N.S.). 71 R.S.A., 1942, c. 4, ss. 43 and 45; R.S.B.C., 1948, c. 181, s. 6 ; R.S.M., 1954, c. 141, s. 41 ; R.S.Nfld., 1952, c. 3, s. 11 ; R.S.N.S., 1923, c. 2, s. 25; Stats. N.S. 1937, c. 2, ss. 22 and 31 ; R.S.O., 1950, c. 202, s. 45 ; R.S.P.E.I., 1951, c. 85, s. 37 ; R.S.S., 1953, c. 3, s. 29 ; R.S.Q., 1941, c. 4, ss. 56 and 58. 7s Coleridge 7. in Stockdale v. Hansard (1539), 9 Ad. & E. 1, at p. E 1112, at p. 1203. 243 77; R112 .R. .S .A ., 1942, c. 4, s. 45(h); R.S.B.C., 1948, c. 181, s. 6(j) ; R.S.M., 1954, c. 141, s. 41(1)(j) ; Stats. N.S., 1937, c. 2, s. 31(11) and (12) ; privilege of officer ofhouse: (13) ; R.S .O., 1950, c. 202, s. 45(1) (10) ; R.S.P.E.I., 1951, c. 85, s. 37(10); R.S.S., 1953, c. 3, s. 29(j) ; R.S.Q., 1941, c. 4, s. 57. A conflict between the legislative and the judicial branch of government will probably be resolved in favour of the former. Cf. McLeod v. Noble, supra, footnote 72:

134 THE CANADIAN BAR REVIEW [VOL . XXXIV committees of any person subject to its jurisdiction. It may also require the production of such documents or other things as it deems necessary for its proceedings or deliberations. Wilful disobedience to such an order is punishable by a fine or committal, but the committal is never for a period in excess of the then session of the legislature." From the foregoing it will be appreciated that the difficulties facing any attempt to define contempt satisfactorily cannot be overrated. It is doubted whether there exists, first, a concept so general as to apply to each offence and, secondly, language sufficiently specific as to cover no other than those acts and omissions that constitute contempt at common law or by statute. With this difficulty in mind it has, with much truth, been observed that contempt "is an offence for which it is difficult to lay down any exact definition"." Referring again to the analysis mentioned earlier," it can be said that the contempt power wielded by courts of record and other tribunals" is being used for three different purposes. First, where an order by a tribunal requiring a party to do an acts' or restraining him from doing an act has been disobeyed, the tribunal will use its power to compel the contemnor to obedience. Secondly, the court will discipline its own officers for a derelic- tion of their professional duties. And, thirdly, punishment will be meted out for acts tending to interfere unlawfully with court proceedings or with persons engaged in such proceedings. All acts or omissions giving rise to the exercise of this power constitute contempt of court.

II. The Incidents of Civil and Criminal Contempt Generally speaking, the distinction between civil wrongs and crimes does not lie in the nature of the act, but in the nature of the proceedings that may follow." The distinction between torts and crimes is most apparent in the sanction the law provides for

7s R.S .B .C ., 1948, c. 181, ss. 3, 6(g) and 7 ; R.S .M., 1954, c. 141, s. 41 (1)(i) ; R.S.N.B ., 1952, c. 129, s. 5; R.S.NSd ., 1952, c. 3, ss . 10 and 11(3) ; Stats. N.S. 1937, c. 2, s. 31(3) and (8) ; R.S .O., 1950, c. 202, s. 35 ; R.S . P.E.Z., 1951, c. 85, s. 37(7) ; R.S.S., 1953, c. 3, ss. 24 and 25 ; R.S.Q ., 1941, c. 4, s. 53. 71 4 C.E.D. (Ont.), (2nd ed., 1950) p. 2. so Supra, text to footnotes 5-8 . sL See, e.g., supra, footnote 61 . 82 Even an order for the payment of money, but subject to the Debtors Act, 1869, 32 & 33 Vict ., c. 62, s. 4 (Imp .). See Oswald, op. cit., p. 117, and 8 Halsbury (3rd ed.) pp. 21-22. sa Salmond, Jurisprudence (10th ed. by Glanville L. Williams, 1947) s. 29, pp. 106 et seq.

1956] Civil and Criminal Aspects of Contempt of' Court 135 each. The law reacts to a crime with the imposition of death, imprisonment, whipping, fine, discharge upon recognizance, release upon probation. The object of civil proceedings is the recovery of damages, a decree for specific performance, an injunction, or the like. The distinction between criminal and civil contempts follows, however, a pattern of its own. The bases of classification are mani- fold, but, in general, it can be said that it is the purpose of the sanction that distinguishes civil from criminal contempt.s4 An- other factor in distinguishing the two classes is the character of the party plaintiff. Thus, it has been suggested, that it is proper that civil or remedial contempt proceedings be brought by private parties, while criminal or punitive proceedings are to be brought by the State.ss This distinction does not appear to be helpful; before one can decide on the party plaintiff, one has to find out whether the contempt is civil or criminal. Moreover, contempt proceedings may start as civil proceedings and end as criminal proceedings es Nor is the so-called "mandatory-restraining" test of assistance. While it is true that disobedience to a mandatory order is civil contempt, it cannot be said that every disobedience to a prohibitory injunction is criminal contempt." . Having made these preliminary remarks, I proceed to inquire into the criminal and civil aspects of contempt of court under the following headings : (a) The exercise of the contempt power, (b) Alternative remedies, (c) Mens rea, (d) Appeals, (e) Pardons, (f) Disciplinary powers, (g) Privilege, (h) Limited privilege. (a) The exercise of the contempt power The means employed in the exercise of the contempt power are similar in the case of criminal and civil contempts. The court s4 Re M' Williams (1803), 1 Sch. & Lef. 169, at p. 174 (Ir.) ; Re Freston (1883), 11 Q.B.D. 545, at pp. 552-553 ; Pritchard v. Pritchard (1889), 18 O.R. 173. And see, e.g., The Rôle of Contempt Proceedings etc . in (1954), 54 Col. L. Rev. 603 at p. 607. ss Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, supra, footnote 36, at p. 787 . as See the Poje case, supra, footnote 44. 87 See, e.g., Bassel's Lunch Ltd. v. Kick, [1936] 4 D.L.R. 106 (Ont. C.A.).

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usually reacts to contempt with one of the following : imprisonment, sequestration, the imposition of a fine and the imposition of costs. Alternative remedies are, however, available." The usual punishment for criminal contempt and for disobedience to a restraining order is committal for a period limited in time. Attachment, entailing an indefinite confinement until obedience is exacted, usually follows civil contempt and is the means by which a court may enforce a mandatory injunction89 Attachment was, for example, held to be the proper remedy to compel a judgment debtor to disclose his assets." From this one would conclude that non-disclosure of his assets by a judg ment debtor is, of necessity, civil contempt. There are, however, cases" where refusal by a debtor to disclose his assets was held to be criminal contempt." On the other hand, it would be wrong to conclude that attachment is proper in all cases where the court endeavours to compel compliance with its mandatory orders. A witness in a civil case refusing to obey a subpoena, or to be sworn, or to give evidence, commits a contempt criminal in nature and the proper remedy is his summary committal to prison." The position is, however, different under Quebec law. 94 On an order for committal the contemnor is arrested by the tipstaff" or other officer of the court and committed to the custody of the governor of the prison, while an order for attachment commands the sheriff to take the contemnor into custody and place him in the jail within the county where the writ is enforced." The enforcement procedure may be adapted to meet

33 See (b), infra. ss R. v. Shannon (1883), 23 N.B.R. 1 (C.A.) ; Re Chatham Harvester Co. v. Campbell (1888), 12 P.R. 666 ; Golden Gate Mining Co. v. Granite Creek Mining Co. (1896), 5 B.C.R. 145 ; Link v. Thompson (1917), 40 O.L.R. 222. s° Scholes v. Hilton (1842), 10 M. & W. 15, 152 E.R . 362 ; and cf. art . 834 C.C.P., supra, footnote 64. si E.g., Henderson v. Dickson (1860), 19 U.C.Q.B. 592 (C .A.) : member of Legislative Council of Canada not entitled to privilege. Ex parse Van Wart (1900), 35 N.B.R. 78: a debtor, a member of a superior court, not privileged from disclosing his assets . 9, In Anderson v. Peters, [19201 1 W.W.R. 679 (Sask.), application for committal in such a case was held to be in the nature of a punitive motion . 93 Mackell v. Ottawa Separate School Trustees (1917), 40 O.L.R. 272 ; Re Gerson, [1946] S.C.R. 538 and 547. sa Art. 330 C.C.P., supra, text preceding footnote 68 . 95 For this office see, e.g., the Judicature Act, R.S .NÜd., 1952, c. 114, s. 46. se Callow v. Young (1887), 56 L.J.Ch. 690. The procedure is set out in a memorandum prepared by Mr. Registrar G. Lavie at the suggestion of one of the judges of the Supreme Court of England, printed in a note to Re Evans, [18931 1 Ch. 252, at pp. 259 et seq.

1956] Civil and Criminal Aspects of Contempt of Court 137 unforeseen circumstances, but will, so far as possible, be put into operation even in the face of a power sufficiently strong "to des- troy both the members of the Court and its officers".s' In addition to committal, a fine and the payment of costs may be imposed," or, if the nature of the offence, permits it, only a fine and costs," or even only the payment -of costs, in full or in part, may be imposed."' Where the contemnor is a corporation, the remedy is sequestration of its property," but the officers of the corporation responsible for the contempt and capable of remedying it may be committed,"' or the corporation,"' such officers, or both"' may be fined and ordered to pay the costs of the proceedings. Although the means by which the court reacts to contempt are' similar in cases of criminal contempt and contempt in procedure, the purpose of the exercise of the contempt power differs. 105 This difference of purpose explains the choice of alternative remedies in cases of civil and criminal contempt,"' the requirement of mens rea in certain contempt cases,"' and to . some extent the grant of limited privilege to certain classes of persons."' Criminal contemps are, furthermore, distinguished by the following char- acteristics : the sheriff may break open an outer door in executing the process, and perhaps may execute it on Sunday ; the order of discharge from custody may be.made conditional on the payment of costs and the prerogative of the Crown only extends to the re- mission of a sentence for criminal contempt."' . (b) Alternative remedies Sometimes the law permits the employment of alternative remedies, for example: 97 Harvey C.J. in Re Norton, [1918] 2 W.W.R. 865, at p. 870 (Alta.). And see Re Lewis, [1918] 2 W.W.R. 687 (Alta.). s8 E.g ., in the Poje case, supra, footnote 44. ss Eg., R. v. McInroy, supra, footnote 22, or A.-G. v. Crisp, [19521 N.Z.L.R. 84. ioo E.g. Dean v. Wright (1912), 1 D.L.R. 918 (Ont.) ; Re O'Brien (1889), 16 S.C.R. 197, at p. 207 (from Ont.) ; Re American Exchange in Europe, Ltd. (1889), 58 L.J.Ch. 706. Costs as between solicitor and client were imposed in Stancombe v. Trowbridge District Council, [1910] 2 Ch. 190. "z Ruthig v. Stuart Bros., Ltd., supra, footnote 40 ; Browne v. Britnell & Co., Ltd. (1924), 27 O.W.N. 232. ma O'Shea v. O'Shea, supra, footnote 31 ; and cf. Battle Creek Toasted Corn Flake Co. Ltd. v. Kellog Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.). Los R. v. J. G. Hammon d & Co., Ltd., [1914] 2 K.B. 866 ; Canadian Gen. Electric Co. Ltd. v. Toronto Electric Supply Co. Ltd., [1935] Ex. C.R. 16. Taylor v. Mullen Coal Co. (1916), 10 O.W.N. 149. ios Supra, footnote 84. ios Infra, (b). 708 107 Infra, (c). Infra, (g)" ioe 8 Halsbury (3rd ed.) p. 4. As to the prerogative of the Crown, see infra (e).

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A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment or by committal .111 Where punishment is occasioned by disobedience to a judgment or order of a court or judge, the punishment will, under the rules of court, be the same whether the contemnor be a party to the cause or matter and the contempt one in procedure only, or not a party, and the contempt therefore criminal."' In the Poje case, however, it was held that "the Rules of Court are inapplicable [in proceedings for disobedience to a labour injunction] as they apply only in civil proceedings"."' The purpose of imposing a sanction on criminal contempts is punitive. Where however a court exercises its jurisdiction in a case of civil contempt, its measures are coercive."' In a leading United States case the court said: It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant . But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.11 4 In cases of criminal contempt the court will usually impose punishment, although it may merely grant an injunction against the repetition of the offence with costs"' or, if the contempt was only technical, that is to say, slight in nature, follow the principle de minimis non carat [ex."' On the other hand, the normal purpose of proceedings for contempts non-criminal in nature is to compel

11o S.C .R ., O. 42, r. 7. 111 S.C .R ., O. 42, r. 26; and see supra, I(c). 112 Poje v. A .-G. of B.C., supra, footnote 43, at p. 796 . 113 With respect to this difference of purpose see, e.g., Joseph H. Beale, Contempt of Court, Criminal and Civil (1908), 21 Harv . L. Rev. 161, at p. 170. 114 Gompers v. Buck's Stove & Range Co. (1911), 221 U.S. 418, at p. 441, 55 L.ed . 797, at p. 806 ; commented upon by Moskovitz, Contempt of Injunctions, Civil and Criminal, supra, footnote 36, at p. 785 ; and in Contempt etc. (1954), 67 Harv . L. Rev. 889, at p . 890. 116 For the principles see Plimpton v. Spiller (1876), 4 Ch .D . 286 (C.A.), a case of non-criminal contempt . See further Bowden v. Russell (1877), 46 L.J. Ch. 414: publication of a libellous statement of claim ; Guilding v. Morel Brothers, Cobbett, and Sons (Limited) (1888), 4 T.L.R. 198 : publication calculated to prejudice the trial of an action ; Cronmire v. The "Daily Bourse" (Limited) (1892), 9 T.L.R. 101 : injunction against publication of libel refused, defendant about to prove its truth ; Lewis v. James (1887), 3 T.L.R. 527 : attempt to induce witness to hide herself. For the form of the injunction see Seton's Judgments and Orders (7th ed., London, 1912) vol . 1, p. 678. "'Hunt v. Clarke (1889), 58 L.J.Q.B. 490 (C.A.) ; Casey v. Kansas (1913), 4 O.W.N. 1581 .

1956] Civil and Criminal Aspects of Contempt of Court 139, the contemnor to do what he is bound to do towards his opponent in a cause or matter."' This difference of purpose in the case -of criminal and non- criminal contempts becomes apparent when enforcement is sought for a mandamus or a mandatory order, an injunction or a judg ment for the specific performance of any contract not complied with. These are all contempts non-criminal in nature. In any such case the Court or a Judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court or Judge, at the cost of the disobedient party."' Where an injunction will be more effective, the court will grant, it also in cases of non-criminal contempts,111 or issue a mandamus, where. this remedy is appropriate."' (c) Mens rea At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for. which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim `actus non facit reum nisi mens sit rea'.121 This principle has- not, however, been applied by the courts to defences in cases where the contempt consisted in publications that reflected on the conduct of parties connected with court proceedings. 122 Although, the publisher of such material may plead that he did not know of pending court proceedings,"' he may not defend himself by pleading ignorance of the contents of the publication." "'In Broom v. Godwin (1910), 17 O.W.R. 629, affirmed 18 O.W.R. 92 (C.A.), however, the court imposed a fine, although the motion for the contemnor's committal was made after he had finally obeyed the injunction of the court. 11a S .C .R., O. 42, r. 30 ; Wellesley v. Wellesley (1853), 4 De G.M. & G. 537, 43 E.R. 617; Rowley v. Adams (1851), 14 Beav. 130, 51 E.R. 236, a decision based on s. 17 of the Trustee Act, 1850, 13 & 14 Viet., c. 60- (Imp.) ; Stilwell v. Mellersh (1839), 4 My. & Cr. 581, 41 E.R. 224. 111 Plimpton v. Spiller, supra, footnote 115. 121 R. v. Poplar Borough Council (1922), 91 L.J.K.B. 163 (C.A.). 121 Cave J. in R. v. Tolson (1889), 23 Q.B.D. 168, at p. 181 ; but see, e.g.,, s. 138 of the Criminal Code. 122 Erskine L.C. in Ex parte Jones (1806), 13 Ves. Jun. 237, at p.,239, 33 E.R. 283, at p . 284. lea Chitty J. in Metropolitan Music Hall Co. v. Lake, supra, footnote 14, at p. 516. 124 Hardwickè L. C. in St. James's Evening Post Case, supra, footnote 9, at p. 472, E.R. at p. 685 ; Stirling J. in Re American Exchange in' Europe, ~. Ltd., supra, footnote 100, at p. 708.

140 THE CANADIAN BAR REVIEW (VOL . XXXIV It may be said that the test whether contempt proceedings will lie against publishers of court reports is an objective one. It has to be established that the publication was clearly intended, cal culated or likely to interfere with the course of justice."' "No liability without fault" was never a dogma accepted in English law Stated as a general proposition, it is contrary to the whole law of trespass, to much of the law of nuisance, to the whole law of defamation, and to the responsibility of principals for their agents.12e This may suffice as explanation why in a recent English case only the publisher of a paper was held liable for contempt and fined when one of its reporters had inadvertently committed a technical contempt. The court based its finding simply on the vicar- ious liability of the contemnor's employer."' While an employer's liability for the contempt of his employee does not depend on the employer's mens rea, it is submitted that blameworthiness is a necessary ingredient in other cases of crim inal contempt. The breach of a court order by a stranger does not make him contumacious, unless he knew of its existence and its contents. Other criminal contempts require the alleged contemnor's knowledge of the nature of the act complained of. The language of the British Columbia Court of Appeal in the Poje case, that "contumacious or defiant" or "intentional" disobedience makes any contempt a crime,"' may have been influ enced by the laws of the United States,"' but does not appear to be supported by Canadian or English authorities and, indeed, the Supreme Court of Canada based its confirming judgment on broader grounds."' While it is conceded that contempts do, if so characterized by statute, constitute crimes, it is difficult to subscribe to the view that identifies all contempts other than contempts in procedure with crimes. Persons imprisoned for contempt, with exceptions not in point here, receive the same treatment, regardless of

115 R. v. Payne, R. v. Gray, R. v. Evening Standard Co., Ltd., supra, footnote 12 ; R. Holmes, Criminal Contempt of Court, supra, footnote 14. 126 Sir Frederick Pollock, A Plea for Historical Interpretation (1923), 39 L.Q. Rev. 163, at p. 167. 121 R. v. Evening Standard Ltd., supra, footnote 12, per Lord Goddard C.J. at p. 1030 ; applied in R. v. Western Printing & Publishing Ltd ., supra, footnote 14. See also the remarks of the Hon . George Drew, 96 House of Commons Debates, pp. 5974 et seq., No. 129 (June 15th, 1954). 128 Sidney Smith J.A. (1952), 7 W.W.R. (N.S.) at p. 70. 129 See, e.g., E. W. Rothe, The Intent Element in Contempt, etc. (1950), 48 Mich . L. Rev. 860, at pp. 864 et seq. "o Supra, text preceding footnote 48.

1956] Civil and Criminal Aspects ofContempt of Court 141 whether the contempt is civil or criminal."' From this the conclusion appears justified that the distinction between criminal contempts and contempts in procedure cannot be equated with the distinction between a criminal and a non-criminal act-"Con- tempts are neither wholly civil nor altogether criminal".132 The purpose of imposing sanctions for the disobedience to a judgment or order is but the means by which the court compels obedience to its orders. Knowledge of the breach is therefore a prerequisite for civil contempt proceedings. Knowledge, on the other hand, is also sufficient to hold a person in contempt for the breach of an injunction ; malice connoting improper motives is not required. 133 Enforcement by sequestration against corporate property or by attachment against officers of a corporation will therefore be permitted only where wilful disobedience to a judgment or order can be shown. 134 Furthermore, casual, or accidental and unintentional disobedience to an order of the Court is not enough to justify either sequestration or committal ; the Court must be satisfied that a contempt of Court has been committed-in other words, that its order has been contumaciously disregarded. 135 The court may direct a writ of sequestration to issue, but to lie in the office for a certain period and not to issue at all, if the defendants abide by the order."' Where the contempt consists in the disobedience by a party to an order, a distinction as to service requirements has been drawn between mandatory and prohibitory injunctions. Man- "I Oswald, op. cit., pp. 249 et seq. 132 Gompers v. Buck's Stove & Range Co., supra, footnote 114, and see Buckley L.J. in Seldon v. Wilde, [1911] 1 K.B. 701, at p. 707 (C.A.), who distinguishes between offences and criminal offences. In English law, "Criminal contempt is a misdemeanour punishable on indictment by fine or imprisonment, or by order to give security for good behaviour", 8 Halsbury (3rd. ed.) p. 3. "3 Corbeil v. Maranda, [19531 R.L. 55. The law of the United States appears to be similar. See, e.g., E. W. Rothe, op. cit., supra, footnote 129, referring to Holloway v. People's Water Co. (1917), 100 Kan. 414, 167 P. 265, where a defendant was held liable in damages in civil contempt proceedings, although he had done all that was humanly possible to obey a court order. "a S.C.R., O. 42, r. 31 ; Lewis v. Pontypridd, Caerphilly, and Newport Railway Co. (1895), 11 T.L.R. 203 ; Stancomb v. Trowbridge, supra, footnote 100, at p. 194; Browne v. Britnell & Co. Ltd., supra, footnote 101 ; Pride-of Derby & Derbyshire Angling Association, Ltd. v. British Celanese, Ltd., [195311 All E.R. 179, per Denning L.J. at p. 204 (C.A.). For further cases see Oswald, op. cit., at pp. 102-103, footnotes (m), (n) . "s Fairclough v. Manchester Ship Canal Co., [1897] W.N. 7 (C.A.) ; Partington v. Booth (1817), 3 Mer. 148, 36 E.R. 57 ; Sayre v. Harris (1879), 18 N.B.R. 677 (C.A.). 131, Stancomb v. . Trowbridge Urban District Council, supra, footnote 100, at p. 196.

142 THE CANADIAN BAR REVIEW (VOL . XXXIV datory orders, including writs of habeas corpus, certiorari and mandamus, must be personally served, unless for good reasons personal service has been dispensed with. Where the order fixes a time within which an act is to be done, the order should be served before the time has expired. In any case, all formalities should be duly observed, otherwise the contemnor will not be attached."' Where the party bound by the order is a corporation, personal service upon its officers is not required, if they have knowledge of the obligation imposed upon the corporation. This was held to be a rule derived from the ratio in Seaward v. Paterson."' In the case of a restraining order proof of its service is not necessary, where it can be shown that the contemnor had knowledge of its contents."' The onus of proving knowledge is, however, on the applicant and where there is no conclusive proof of the alleged contemnor's knowledge of the order he failed to comply with, an application for his committal will be refused. The same result will follow where procedural requirements have not been strictly complied with."' While ignorance of an order will excuse the person disobeying it,

13r Rider v. Kidder (1806), 12 Ves. Jun. 202, 33 E.R . 77 ; De Maneville v. De Maneville (1806), 12 Ves. Jun . 203, 33 E.R. 78 ; Adkins v. Bliss (1858), 2 De G. & J. 286 ; 44 E.R. 999; Re Reynolds (1862), 10 W.R . 709 ; Hope v. Carnegie (No . 1) (1868), L.R. 7 Eq. 254; Wagner v. Mason (1874), 6 P.R. 187 ; McAvilla v. McAvilla (1876), 6 P.R. 311 ; Re Holt (1879), 11 Ch. D. 168 ; Mann v. Perry (1881), 50 L.J.Ch. 251 ; Smith v. Marrin (1884), 4 C.L.T. 493 (Ont.); Berry v. Donovan (1894), 21 O.A.R . 14 ; Re Hallock (1894), 15 C. L. T. Notes 9 (Ont.); R. v. Woodyatt (1895), 27 O.R. 113 ; Woods v. Fader (1905), 10 O.L.R. 643 ; Re Tuck, [19061 1 Ch. 692 (C.A.) : personal service necessary, even if order had been made by consent and in the presence of the defaulting party ; Century Insurance Co., Ltd. v. Larkin, [1910] 1 I.R. 91 ; Paffard v. Cavotti (1928), 34 O.W.N. 15 ; Williams v. Williams (1943), 59 B.C.R. 359 (C.A.) ; Claggett v. Clag- gett, [1945] 3 D.L.R. 414 (B.C. C.A.). Secus, Re Harnden (1885), 11 P.R. 35 ; Haydon v. Haydon, (191112 K.B. 191 (C.A.). 138 Supra, footnotes 11, 37 et seq. ; Re Bolton and County of Went- worth (1911), 23 O.L.R. 390, at p. 395 ; Aberdonia Cars (Lim .) v. Brown, Hughes, & Strachan (Lim.) (1915), 59 Sol. Jo. 598. "I Hearn v. Tennant (1807), 14 Ves . Jun. 136, 33 E.R . 473 ; Andrews v. Maulson (1862), 8 U.C.L.J. 74; Re Bryant (1876), 4 Ch. D. 98 ; Avery v. Andrews, supra, footnote 39, at p. 416 ; United Telephone Co. v. Dale (1884), 25 Ch.D. 778 ; Re Tuck, supra, footnote 137, at p. 696 ; Irvine v. Hervey (No. 1) (1913), 47 N.S.R. 289 ; Turnbull Real Estate Co. v. Segee (1914), 42 N.B.R. 625 (C.A.) ; Mackell v. Ottawa Separate School Trustees, supra, footnote 93 ; Cook v. Doyle, [1946] N.Z.L.R. 398. Secus, Shields v. Shields (1918), 13 O.W.N. 444 ; Detroit Fuse and Manufacturing Co. v. Metropolitan Engineering Co. of Canada Ltd. (1922), 63 D.L.R. 179 (Ex. Ct.) . 140 Hinde v. Blake (1842), 5 Beav. 431, 49 E.R. 645 ; Stephens v. Work- man (1863), 11 W.R. 503 ; Re Brwen (1863), 11 W.R. 607 ; Hynes v. Fisher (1883), 4 O.R. 78 ; Mackenzie v. Carter (1888), 12 P.R . 544 ; Moose Mountain Lumber & Hardware Co. v. Paradis (1910), 14 W.L.R. 20 (Sask.) ; Menard v. Montreal, [1953] Que. P.R. 164.

1956] Civil and Criminal Aspects of Contempt of Court 143 no person is allowed to question the propriety of issuing any process or order of Court on a motion to commit for contempt of the Court, in respect of such process, or order, so long as the same remains in force.141 Only where such an order is void and not merely appealable need it not be obeyed and will no contempt proceedings lie.142 From the foregoing it follows that in cases ofcriminal contempt the absence of mens rea is no absolute defence. On the other hand, wilful disobedience to a judgment or order must be shown before it can be held that contempt in procedure has been committed.143 Against this submission, however, certain dicta permit the conclusion that the mere presence of mens rea, or rather of ulterior motives, makes any contempt criminal.l44 (d) Appeals The main difference between criminal and other contempts was considered to be that an appeal lay only in case of the latter.14s While it is true that in civil contempt cases the defendant could always appeal, 146 it is also true that appeals were sometimes heard on the merits in cases of criminal contempt, regardless of whether the appeal was brought by the contemnors 14' or by their opponents.lI It appears that, in cases where the Judicial Committee of the Privy Council was the supreme reviewing authority, it always had jurisdiction to grant leave to appeal in criminal and non-criminal cases alike."'. The Criminal Code now permits an appeal against the punish- 141 Wilson C.J. in Hynes v. Fisher, supra, footnote 140, at p. 86 ; The Eastern Trust Co. v. MacKenzie, Mann & Co. Ltd. (1915), 22 D.L.R. 410, at p. 418 (P.C. from N.S.) ; The Canadian Pacific Navigation Co. (Ltd.) v. The City of Vancouver (1892), 2 B.C.R. 298, at p. 301 ; Notter v. Smith (1859), 1 Chy. Chrs. 21 ; Proudfoot V.C. in Allen v. Edinburgh Life Assur- ance Co. (1879), 26 Gr. 192, at p. 193 ; Dunn v. The Board of Education for the City of Toronto (1904), 7 O.L.R. 451 ; Poje v. A.-G ., supra, footnote 44. 142 McLeod v. Noble, supra, footnote 72, based on De Geneve v. Han- nam (1830), 1 Russ. & M. 494 ; 39 E.R. 190. 141 Against this view: W. A. Urban, Equity, etc., supra, footnote 41 . 144 Sidney Smith J.A. in Canadian Transport (U.K.) Ltd . v. Alsbury, supra, footnote 44, at pp. 69-70. 145 Oswald, op. cit., p. 229. 146 Witt v. Corcoran (1876), 2 Ch.D. 69 (C.A.) ; Stevens v. Metropolitan District Railway Co. (1885), 29 Ch.D. 60 (C.A.) ; Bristow v. Smyth (1885), 2 T.L.R. 36 (C.A.) ; and see The Southwark & Vauxhall Water Co. v. The Hampton Urban District Council, [1899] 147 1 Q.B. 273 (C.A.) . As in Seaward v. Paterson, supra, footnotes 11, 37 and 38, or in the Poje case, supra, footnote 44. 148 Hunt v. Clarke, supra, footnote 116. 141 Ambard v. A.-G. of Trinidad and Tobago, supra, footnote 12, at p. 706.

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ment imposed for contempt committed in the face of the court'"' and, where the contempt was not committed in the face of the court, from the conviction and against the punishment .'"' The difference between these two classes of contempt appears to lie in the evidence required to support a conviction. Where the contempt was committed in the immediate view and presence of the court, the conviction for it will be based, or will be based to some extent, on what the members of the court themselves saw and heard. Where the court has to rely exclusively on the evidence of witnesses, it cannot, it is submitted, be held that the contempt was committed in the face of the court. Black's Law Dictionary'"' proposes a classification similar to that contained in section 9 of the Criminal Code. According to this dictionary a contempt is direct if committed in the immediate view and presence of the court or so near the court as to obstruct or interrupt the due and orderly course of the proceedings. Any other contempt is termed constructive or consequential. It is however submitted that the clear language of the code requires the application of subsection (2) of section 9 to all acts committed out of the immediate vision of the members of the court, even if the acts could be termed direct contempts because committed so near the court as to cause an obstruction or interruption of the proceedings. The distinction between contempts committed in the actual view of the court and those out of court appears to be based on sound historical foundations : in the fourteenth century and onwards-perhaps down to the early part of the eighteenth century-the jurisdiction of the king's justices to punish contempts of a criminal nature summarily was limited to offences, not heinous, committed in court in their actual view, and to breaches of duty by officers of justice ; . . . in the eighteenth century the summary jurisdiction was held to extend to all contempts whether committed in or out of court.is3 This distinction can also be observed in later attempts at codifi- cation.'" Although, so far as appeals are concerned, the distinction between contempts criminal and non-criminal has dwindled, it could be argued that precedents where appeals brought by contemnors were allowed could still be used for the purpose of de- 150 S. 9(1) . 111S .9(2). 'sz P. 416 . "I Fox, The Summary Process to Punish Contempt (1909), 25 L.Q . Rev . 238, at p. 252. 154 See Fox, The Nature of Contempt of Court, supra, footnote 4, at p. 192.

1956] Civil and Criminal Aspects of Contempt of Court 145 termining whether certain contempts are to be classified as criminal or non-criminal. But in view of the fact that appeals in criminal contempt cases were sometimes decided on the merits"' and one and the same behaviour may still be classified differently for different purposes,15s it is submitted that contempt cases, where appeals were decided on the merits or even where the appeals were allowed, cannot be relied on when classifying contempts as civil or criminal.

The absence of a right of appeal in cases of criminal contempt was, to some extent, mitigated by the right of the Crown to re- mit fines and to grant pardons. 157 This right still subsists. It be longs exclusively to the Crown and is vested in the Governor General acting on the advice of at least one of his ministers,"' but is confined to cases where no right or benefit is vested in a subject. Where a. wrong has been committed against a party for which the law affords a remedy to the party, no pardon may be granted : "I It is the practice of the representative of the Crown . . . not to interfere . . . when the contempt consists in the refusal to do that which is right to a party litigant.lso In other words, only where the contempt has been classified as criminal may the drown exercise the right of pardon. But it has been held that this right also subsisted, for example, where a letter concerning the conduct, of a judge was published in -a newspaper and contained criticism of such a nature that it might have been made the subject of proceedings for libel, although in the circumstances it was not calculated to obstruct or interfere with the due administration of law."' Contriving the marriage of a ward of the court without authority was likewise held to be a contempt for which a pardon could be granted."'

lss Supra, footnotes 147 and 148. lss Supra, text preceding footnotes 52-53. 157 See, e.g., Rainy v. Sierra Leone JJ. (1853), 8 Moore 47, 14 E.R. 19 (P.C.), where no opinion on the appeal was given by the Judicial Com- mittee, but where a reduction of the fine imposed was recommended. I's Letters' Patent constituting the office of Governor General of Can- ada, effective October 1st, 1947, art. XII, R.S.C., 1952, vol. VI, p. 6432. lso Thomas v. Sorrell (1673), Vaughan 330, at pp. 334, 335, 342 and 343, 124 E.R. 109.8, at pp. 1100-1101, 1105. See also Ex parte Fernandez, supra, footnote 10, per Erle C.J. at pp. 25-26; E.R. at p. 358. lso Rigby L.J. in Seaward v. Paterson, supra, footnote 11, at p. 559. lsl Re Bahama Islands, supra, footnote 29. lsa Phipps v. flngelsea (1721), 1 P.Wms. 696; 24 E.R. 576.

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(f) Disciplinary powers Since solicitors are officers of the court, the courts have always exercised disciplinary powers over them. In addition to the usual consequences of contempt, a solicitor may face suspension from practice. He may be struck off the rolls and, if he is also a barrister, may be disbarred."' Where the disciplinary powers of the court primarily aimed at the protection of the legal profession, it was held that this power of the court was exercised in a civil matter. The position is different where the court inquires into the conduct of a solicitor and finds him guilty of improper dealing with his client's property. This difference in classification of the disciplinary power is best illustrated by comparing two cases. In one case a solicitor permitted his name to be used by an unqualified person. While it was held that "punishment inflicted on the unqualified person must be in a criminal matter", the court held that it was not dealing with a criminal matter so far as the solicitor was concerned. He was struck off the rolls, but was granted leave to appeal."' This case may be contrasted with another, where a solicitor failed to deliver up certain documents and pay out a certain sum of money after having been ordered by the court to do so. On a writ of attachment he was arrested and his claim to privilege was refused. The court held that "a default by a solicitor is an act of a criminal nature, for which he may be punished as for a contempt"Ys In this connection the terms "punitive" and "disciplinary" were treated as synonymous."' The primary consequences of classifying such a contempt as criminal was held to be that the solicitor was not entitled "to be released ex debito justitiae upon doing the acts commanded or upon ceasing to do the act forbidden, as the case may be", and that "the Court can always order the solicitor to pay the costs of the application"."' These disciplinary powers existed before the Debtors Act, 1869,168 and were expressly saved by it. Before this act came into force, imprisonment was one of the remedies against any default ing debtor, but the act abolished this remedy with certain exceptions. From the operation of the enactment prohibiting the arrest and imprisonment of a defaulting debtor there was excepted de-

113 Cf. also art. 19 C.C.P. "a Re Eede (1890), 25 Q.B.D . 228 . 165 Brett M.R. in Re Freston, supra, footnote 84, at p. 555, relying on the judgment of Lord Brougham L.C. in Wellesley v. Beaufort, supra, footnote 36, at p. 665. 166 Re Freston, at p. 557. 117 Ibid., pp. 554-555 . 161 Supra, footnote 82.

1956] Civil and Criminal Aspects of Contempt of Court 147 fault by a solicitor in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to do so in his character of an officer of the court making the order.161 While thus the power of the court to attach a solicitor in certain cases was maintained, the court or judge was, by statute, empowered to inquire into the case and to grant or to refuse, either absolutely or upon terms, any application for a writ of attachment, or other process or order of arrest or imprisonment, and any application to stay the operation of any such writ, process or order, or for discharge from arrest or imprisonment thereunder."' In some provinces this particular disciplinary jurisdiction of the courts over solicitors acting in the capacity of officers of the court has been re-enacted.171 As mentioned previously, the court will, if necessary, use its contempt powers wherever a solicitor"' neglects to pay out moneys or hand over papers held by him without lawful excuse"' or moneys received for charges improperly made.174 Failure of a solicitor to pay out his client's funds will, however, not always enable the latter to invoke the criminal contempt powers of the court. If the client elects to take civil proceedings against the solicitor, he stands in the same position as any ordinary creditor. He cannot then proceed against the solicitor by attachment, but must proceed by way of execution, as on a judgment. 175 Similarly, where the defendant, a solicitor, made default in delivering to the plaintiff, another solicitor, his bill of costs as ordered by the court, and the plaintiff on a motion for attachment recovered costs, it was held that the order for costs was not made in a criminal or quasi-criminal matter and that, therefore, the costs were recoverable by civil action."' Where a solicitor in this capacity has given an undertaking, for example, to pay out certain moneys, the undertaking can be enforced against him personally. 177 Such

189 S. 4, point 4 of the act. 178 The Debtors Act, 1878, 41 & 42 Vict., c. 54, s. 1 . 171 E.g ., The Solicitors Act, R.S.O., 1950, c. 368, s. 2. See also art. 19 C.C.P. 172 In this character only: Re O'Reilly (1841), 2 P.R. 198. 171 Re Freston, supra, footnote 84; Re A.B. (1.886), 3 Man R. 316; Pritchard v. Pritchard (1889), ,18 O.R. 173 ; Re Grey, [1892] 2 Q.B . 440 (C.A.) ; Re Bryant Isard & Co., [192411 D.L.R. 49 (Ont.) . 179 Ex parte Crimmens 178 (1831), 1 N.B.R. 284. Re Ball (1873), L.R. 8 C.P. 104; Ex parte White Sewing Machine Co. (1892), 31 N.B.R. 237. Secus,, Re Grey, supra, footnote 173, per Lord. Esher M.R. at p. 443. 178 Seldon v. Wilde, supra, footnote 132. 177 Standard Trust Co. v. Szlachetka, [1919] 3 W.W.R. 614 (Sask.); Re Solicitors, [1917] 1 W.W.R. 529 (B.C. C.A.).

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proceedings have been held to be civil for the purpose of an appeal against the attachment order."' Likewise, a solicitor who has undertaken to enter an appearance may be compelled by attachment to do so."'

(g) Privilege "I The law protects certain persons and their property from contempt proceedings, but the extent of the protection varies with the position the privileged person occupies. Some persons, for example heads of state, enjoy absolute privilege from all court proceedings. They cannot normally be sued, they are immune from arrest and no execution lies against their property. So far as the sovereign or a foreign prince is concerned, there is no point in distinguishing between the civil and criminal aspects of contempt proceedings. The royal prerogative also covers, however, certain of the sovereign's servants, but they are protected only against arrest in civil cases. Where a foreign embassy and its staff are concerned, the privilege amounts to complete immunity from process and, again, there is nothing to be gained in distinguishing between proceedings for criminal and non-criminal contempt. Only in very exceptional cases of a criminal nature"' will this immunity give way to considerations of public policy. The distinction between criminal and other contempts is of real importance in cases of limited privilege, because persons enjoying a limited privilege are protected only against proceedings for contempt of a purely civil nature. The common-law maxim, "The King can do no wrong",182 although no longer valid in the law of property, contract or tort,"' affords to the person of the sovereign 184 and her property, both in her regal and private capacity, absolute privilege from contempt proceedings."' The Governor General and the Lieutenant

178 Re Kean v. Kean (1927), 48 Can. C.C . 363 (B .C.) . 179 Phipps v. Groves, [1923] 3 W.W.R. 780 (Alta.). 180 Oswald, op. cit., pp. 173 et seq. 181 Cf. Rose v. The King, [1947] 3 D.L.R. 618 (Que .) ; followed in R. v. Lunan, [1947] 3 D.L.R. 710 (Ont. C.A.). 182 For this maxim : Fournier J. in R. v. McLeod (1883), 8 S.C.R . 1, at pp. 30-32. 188 Petition of Right Act, R.S.C., 1952, c. 210 ; Exchequer Court Act, R.S.C., 1952, c. 98 ; Crown Liability Act, Stats. Can. 1953, c. 30 ; Crown Procedure Act, R.S .B.C., 1948, c. 86. 184 Stat . 1660, 12 Car . 2, c. 30 ; 4 Halsbury Statutes 142, at p. 143. "1 7 Halsbury (3rd ed.) p. 240. And see The Eastern Trust Co. v. Mac- Kenzie, Mann & Co. Ltd., supra, footnote 141, at p. 418 ; The Broadmayne, [1916] P. 64 (C.A.).

1956] Civil and Criminal Aspects of Contempt of Court 149 Governors as the Queen's representatives"' seem to enjoy the same privilege. Earlier legislation"' appears to be obsolete in view of the change in the constitutional position."' It seems that the Governor General and the Lieutenant Governors always en- joyed privilege from imprisonment in execution of judgment."' The prerogative of the Queen that her service may not be in- terrupted protects servants employed in the royal household. They may not be arrested without prior leave having been obtained from the Lord Chamberlain of the Household. Where the status of an arrested person as servant in the Queen's household is not called in question, he will be discharged upon motion. Otherwise this privilege has to be asserted by writ of privilege."' "On the same principle no arrest can be made in the Sove- reign's presence or within the verge of a royal palace,"' and no judicial process can be executed therein provided some royal ap pearance be kept up, even though the Sovereign is not at the time personally residing there." I" It may be convenient to mention here the privilege of the exe- cutive to keep certain information secret. Where, for example, a witness is a civil servant and the examination touches communi= cations received by him in his official capacity, it is, as a rule, for his superior and not for the court to decide whether the witness should disclose them. The same thing applies where the com- munication to be revealed was received by him in his professional

116 Cf. Cmd. 2768, p. 16 (U.K.), referred to in 5 Halsbury (3rd ed.) p. 439, note (e). For the earlier law see, e.g., Cameron v. Kyte (1835), 3 Knapp 332, at p. 344 ; 12 E.R. 678, at p. 683 (P.C. from Berbice). 187 Stat. 1698-9, 11 Will. 3, c. 12 ; 5 Halsbury Statutes 521 ; Criminal Jurisdiction Act, 1802, 42 Geo. 3, c. 85 ; 5 Halsbury Statutes 595, as applied in R. v. Picton (1805), 30 St. Tr. 225, and R. v. Eyre (1868), L.R. 3 Q.B. 487. "es The contrary view, expressed in 5 Halsbury (3rd ed.) p. 468, preceding note (t), can, it is submitted, be maintained only on the basis of a narrow construction of the law without regard to the de facto constitutional position. isa 5 190 Halsbury (3rd ed.) p. 564, note (d). 7 Halsbury (3rd ed.) p. 246; Luntley v. Battine (1818), 2 B. & Ald. 234, 106 E.R. 353 ; Leslie v. Disney (1834), 1 C.M. & R. 578, 149 E.R. 1211 ; R. v. Moulton (1666), 2 Keb. 3, 84 E.R. 2; Anon. (1681), 2 Chan. Cas. 69, 22 E.R. 850; Bartlett v. Hebbes (1794), 5 T.R. 686, 101 E.R. 382; King v. Poster (1809), 2 Taunt. 167, 127 E.R. 1041 ; Byrn v. Dibdin (1835), 1 C.M. & R. 821, 149 E.R. 1312 ; Winter v. Dibdin (1844), 13 M. & W. 25, 153 E.R. 11 ; Harvey v. Dakins (1849), 3 Exch. 266, 154 E.R. 843 ; Reynolds v. Pocock (1838), 4 M. & W. 371, 150 E.R. 1472; Dyer v. Disney (1847), 16 M. & W. 312, 153 E.R. 1208 ; Robson v. Doyle (1855), 3 W.R. 417. "i But see A.-G. v. Dakin (1870), L.R. 4 H.L. 338 . 192 7 Halsbury (3rd ed.) p. 246.

150 THE CANADIAN BAR REVIEW [VOL . XXXIV character as religious or legal adviser. Refusal by a witness to answer in such circumstances does not amount to contempt.393 The privilege is not personal to the witness and, it is submitted, can only be waived by the person or persons whose secrets are to be protected and, where an official secret is concerned, by those persons who ultimately have to decide upon such questions of public policy."' By the law of nations as applied by British courts, no jurisdiction will be exercised over the person of any foreign sovereign's' or ambassador, or over the public property of any state which is destined to its public use, or over the property of any ambassador, no matter where these persons or this property may be found. These persons and this property are, therefore, exempt from local jurisdiction, including enforcement proceedings."' The statutory immunity granted to diplomatic representatives of foreign states"' is but declaratory of the law of nations as recogniz- ed and applied by our courts."' It has been extended to Common- 193 M.N.R. v. Die-Plast Co., Ltd., [1952] 2 D.L.R. 808 (Que.), based on art. 332 C.C.P., supra, text preceding footnote 70; Duncan v. Cammel, Laird & Co. Ltd., [1942] A.C. 624, at p. 635 ; Weber v. Pawlik, [1952] 2 D.L.R. 750 (B.C. C.A.) ; Clemens v. Crown Trust Co., [1952] 3 D.L.R . 508 (Ont.) ; Carroll v. Osburn, [1952] N.Z.L.R. 763 ; M.N.R. v. Die Plast Co., Ltd. (1952), 32 C.B.R. 241 (Que.) ; Hinton v. Campbell, [1953] N.Z.L.R . 573 ; Reese v. The Queen, [1955] 3 D.L.R. 691 (Ex. Ct .) ; Re Lew Fun Chaue (1955), Can. C.C. 264 (Ont.) ; Broome v. Broome, [1955] 1 All E.R . 201 ; but see R. v. Snider, infra, footnote 194. 194 See, however, R. v. Snider, [195414 D.L.R. 483 (S.C. from B.C.), and F. E. LaBrie, Evidence, etc., in (1953), 31 Can. Bar Rev . 927, and John Willis, Administrative Law, etc., in (1955), 33 Can. Bar Rev. 352 and 1186. "I Not even if he happens to be a British subject, provided he acted in his regal capacity: Duke of Brunswick v. King of Hanover (1848), 2 H.L.C. 1 ; 9 E.R. 993. 191 The Parlement Belge (1880), 5 P.D. 197 (C.A.) ; Strousberg v. Re- public of Costa Rica (1880), 29 W.R. 125 (C.A.) ; Mighell v. Sultan of Johore, [1894] 1 Q.B. 149 (C.A.) ; Musurus Bey v. Gadban, [1894] 2 Q.B. 352 (C.A.) ; South African Republic v. La Compagnie Franco-Beige du Chemin de Fer du Nord, [1898] 1 Ch. 190; The Jassy, [1906] P. 270; Re Republic of Boliva Exploration Syndicate, Ltd., [1914] 1 Ch . 139 ; The Crimdon (1918), 35 T.L.R. 81 ; The Gagara, [1919] P. 95 (C.A.) ; The Porto Alexandre, [1920] P. 30 (C.A.) ; The Tervaete, [1922] P. 259 (C.A.) ; Duff Development Co. v. Government of Kelantan (1923), 92 L.J. Ch . 273 (C.A.) ; Compania Mercantil Argentina v. U.S. Shipping Board (1924), 93 L.J.K.B. 816 (C.A.) ; The Jupiter (1924), 93 L.J.P. 156 (C.A.); Compania Naviera Vascongada v. Cristina S.S., [1938] 1 All E.R. 719 (H.L.) ; The Arantzazu Mendi, [1939] T All E.R. 719 (H.L.) ; Krajina v. The Tass Agency, [1949] 2 All E.R. 274 (C.A.) ; Kahan v. Pakistan Federation, [1951] 2 K.B. 1003 (C.A.) ; United States of America v. Dollfus Mieg et Com- pagnie s.a., [1952] 1 All E.R. 572 (H.L.). But see : Sultan of Johore v. Bendahara, [1952] 1 All E.R. 1261 (P.C. from Singapore); Juan Ysmael & Co., Inc. v. Republic ofIndonesia, [1955] A.C. 72 (P.C. from Indonesia) . 191 Diplomatic Privileges Act, 1708, 7 Anne, c. 12, s. 3 ; Criminal Code, s. 7. 198 Lord Mansfield in Triquet v. Bath (1764), 3 Burr. 1478, at p. 1480,

1956]. .Civil and Criminal Aspects of Contempt of Court 151 wealth representativesa" The immunity covers the family of the representative, his suite, as, for example, councillors, secretaries, attaches,"° and his domestic servants.261 Diplomatic immunity exempts the person and the property covered thereby from the jurisdiction of the courts, but may be waived. 202 No waiver is, however, necessary where no immunity is claimed or where documents allegedly owned by a foreign state, are produced in evidence by the Crown."' Where a defendant has waived his diplomatic privilege, he may later reassert his status and thereby prevent execution against his property.204 Diplomatic immunity extends to the- embassy building. It is inviolable in the sense that no process willbe executed there. Recent statutes extend immunity from process to corporations, individuals and property enjoying immunity under conventional law, as for example, the United Nations, the Specialized Agencies, the North Atlantic Treaty Organization and their archives, the state representatives to these organizations, and certain of their personnel.216

(h) Limited Privilege Limited privilege never protects. against criminal contempt proceedings or against arrest in any but a purely civil matter. It can, therefore, be concluded that in each contempt case, where a claim of limited privilege was upheld, the case was purely civil. From this, however, it must not be. concluded that limited privilege protects against the consequences of all civil contempts.

97 E.R. 936, at p. 937 ; Slesser L.J. in Hemeleers-Shenley v. The Amazone, [1940] 1 All E.R. 269, at p. 271 (C.A.) . ... Diplomatic Immunities (Commonwealth Countries) Act, Stats. (Can.) 1953-54, c. 54. 2°° Attach6: Parkinson v. Potter (1885), 16 Q.B.D. 152 ; chief of mail department : Assurantie Compagnie Excelsior v. Smith (1923), 40 T.L.R. 105 (C.A.) ; consular secretary : Engelke v. Musmann (1928), 97 L.J.K.B. 789 .). 201(H.L Paitier v. Croza (1749), 1 Wm. Bl. 48, 96 E.R. 26; Wigmore v. Alvarez (1731), 232 Fitz-G. 2007 94 E.R. 719; Stats. (Can.) 1953-54, c. 54 s. 5. By the defendant minister himself: Re Suarez, [1918] 1 Ch. 176; by a defendant First Secretary himself: Dickinson v. Del Solar (1930), 99 L.J.K.B. 162 ; by the ambassador on the defendant's behalf against the latter's objections : R. v. Kent (1941), 110 L.J.K.B. 268 (C.C.A.). By the minister on his own behalf with his government's consent: Re Re- public of Bolivia Exploration Syndicate, Ltd., supra, footnote 196. 233 Rose v. The King, supra, 234 footnote 181. Re Suarez, supra, footnote 202; Duff Development Co. v. Govern- ment of Kelantan, supra, footnote 196. 216 7 Halsbury (3rd ed.) pp: 269-270, footnote (a). 216 Privileges and Immunities (United Nations)- Act, R.S.C., 1952, c. 219 ;, Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C., 1952, c. 218. , ,

152 THE CANADIAN BAR REVIEW [VOL . XXXIV As shown, a contempt may for one purpose be held civil but for another criminal. Appeals lay against committals for disobedience to a writ of habeas corpus, but the contemnor was not allowed his privilege.207 It can, therefore, be said that cases on limited privilege do not necessarily assist in distinguishing between contempts criminal and non-criminal. Only where a claim to privilege was upheld is the conclusion justified that the contempt was not criminal. A claim to privilege was upheld, for example, where the contempt proceedings were based on an order directing the contemnor to pay out money and hand over documents within a specified time ,208 or where committal was applied for non-payment of rates. It was held that this was merely a civil process for enforcing payment.209 The committal of a person to be examined on oath pursuant to a summons issued by the court is only a means of enforcing obedience to the order of the court. Consequently, it was held that a member of Parliament was protected against such civil contempt proceedings210 The following three classes of behaviour have been held to constitute contempt against which privilege does not protect : interference with members of the judiciary (including interference with court proceedings), disobedience of habeas corpus and similar orders, and of orders for examination. These classes are given here only as examples : they are by no means exhaustive. As limited privilege protects only against arrest in civil proceedings and never against the consequences of criminal contempt, there was no difficulty in holding against a claim of privilege where the contempt consisted in sending a threatening letter to the master, the letter having the tendency to induce him to alter his opinion in a case where the contemnor, a barrister and member of Parliament, had appeared as counsel."' Limited privilege does not protect even against certain civil proceedings, however, where either the act "savours of criminality" or is accompanied by criminal incidents and the committal is, therefore, in the nature of punishment: 2°' R. v. Barnardo, supra, footnote 52 ; Wellesley v. Beaufort, supra, footnote 36; and see the text preceding these notes. In the Wellesley case the contemnor was not a party to the proceedings and for this reason alone, it is submitted, was his contempt criminal. 211 Re Anglo-French Co-operative Society (1880), 14 Ch . D. 533 . tae Hobern v. Fowler (1892), 62 L.7.Q.B. 49. 211 Re Armstrong, [1892] 1 Q.B. 327. 211 Charlton's Case (1837), 2 My. & Cr. 316, 40 E.R. 661 ; R. v. Castro (1873), L.R. 9 Q.B. 219.

1956] Civil and Criminal Aspects of.Contempt of Court 153 privilege never extends to protect from punishment, though it may extend to protect from civil process; . . . privilege never extends to protect even from civil process where the object of the process is the delivery up .of a person wrongfully detained by a party.212 Where a debtor refused to attend his examination, the court held that he was liable to be committed and that the order com- mitting him was made in a - criminal matter. Consequently the contemnor, a member of the provincial legislature, was refused parliamentary privilege."' Where imprisonment is not merely â means of compulsion to pay out moneys received in trust, but also punishment for fraud, "punishment ought to be inflicted for the purpose of teaching this man that a dishonest act of this kind will not be passed over with impunity, even though he is unable to pay, and for the purpose of teaching other trustees the same lesson-.214 A Queen Consort and members of the Royal Family enjoy privilege from arrest in civil proceedings,"' but it is hardly ' of practical importance to decide how wide for our purposes the circle of the Royal Family is to be drawn. In contempt cases the courts are, in any event, slow to interfere with the freedom of the individual and, where other means of coercion are available, they will not commit the contemnor to prison."' For the same reason it can hardly be expected that the courts will be called upon to decide whether a peer of the United Kingdom or one of its constitu- eilt parts is liable to be arrested in a civil case. At common law peers enjoy freedom from civil arrest under parliamentary immunity.21' It is, however, difficult to imagine that immunity could be accorded to persons who are not members of any Canadian legislative body and it is therefore submitted that only peers of the blood royal may claim privilege from arrest in Canada and only on the ground of the royal prerogative. The protection accorded to servants attending the person of the sovereign has been mentioned in connection with the royal prerogative in general.211 Zit Lord Brougham, obiter, in Long Wellesley v. Beauford, supra, footnote 36, at p. 673 ; E 213 39 .R. 538, at pp. 550-551 . Henderson v. Dickson, supra, footnote 91. See also Ex parte Van Wart, supra, footnote 91, but cf. Re Armstrong, supra, footnote 210. 214 North J: in Re Gent, supra, footnote 30, at p. 196, quoting Kay J. in Re Knowles (1882-83), 52 L.J. Ch. 685, at p. 687. 215 Earl of Shrewsbury's Case (1611), 9 Co. Rep. 46b, at p. 49a ; 77 E.R. 798, at p. 803. 215 Cockburn C.J. in R. v. Castro, supra, footnote 211, at p. 229. 211 Couche v. Arundel (1802), 3 East 127, 102 E.R: 545 ; and see-fnfra, text preceding footnotes 219-222. 218 Supra, text preceding footnote 190.

154 THE CANADIAN BAR REVIEW [VOL . XXXIV

At common law members of Parliament are protected during the sitting of their house from any arrest for any debt or cause of a civil nature."' This privilege has been extended by statute to the members of the Senate, the House of Commons and the provincial legislatures .226 The protection extends beyond the dissolution of the house for a period of forty days for members of the federal Parliament"' and those of the provincial legislatures whose privileges have been assimilated to those of the Parliament of Can- ada 221 Persons enjoying this privilege are entitled to discharge on motion and the party who has acted in breach of the privilege is probably guilty of a contempt of the house of which the aggrieved party is a member.222 In general, persons attending judicial proceedings on busi- ness are privileged from arrest in civil process, including cases of strictly civil contempt. This privilege protects, for example, the parties to civil and criminal proceedings,223 prosecutors and witnesses in criminal proceedings'224 solicitors and barristers.225 The privilege protects these persons from arrest on their way to the proceedings, during the proceedings and on their way home, or, as it has been expressed, eundo, morando et redeundo . Imma terial deviations and accidental delay in going to the proceedings and in returning from them do not vitiate the privilege to which the party is otherwise entitled. "The morando also should include purposes of natural rest and necessary refreshment, and ought to be construed with liberality." 226 It is for the party who arrests to 219 Re Anglo-French Co-op. Society, supra, footnote 208 . 226 For this legislation see supra, footnote 71 . 221 Supra, footnote 73 ; and see : B.N.A. Act, 1867 ; Senate and House of Commons Act, R.S.C., 1952, c. 249, s. 4 ; R.S.A ., 1942, c. 4, s. 43 (twenty days preceding and twenty days following session) ; R.S .B.C., 1948, c. 65, ss . 74 et seq., c. 181, s. 6(k) ; R.S.M., 1954, c. 141 ; R.S.Nfld., 1952, c. 3 ; Stats. N.S . 1937, c. 2, s. 22 ; R.S .O., 1950, c. 202, s. 38 ; R.S.P . E.I., 1951, c. 85 ; R.S.S., 1953, c. 3, s. 34 ; R.S.Q., 1941, c. 4, s. 58. 222 See supra, footnotes 73, 75 and 77. 223 Defendant coming to give security of the peace: R. v. Feilding (1685), Comberbach 29, 90 E.R. 323 ; plaintiff in a civil action : Pulton v. Farrar (1729), 1 Barn . K.B. 251, 94 E.R. 172 ; accused persons : Gilpin v. Cohen (1869), L.R. 4 Exch. 131. 224 Mountague v. Harrison (1857), 3 C.B.N.S. 292 ; 140 E.R. 753. 226 Garden v. Sheers (1730), Cooke, C.P. 60, 125 E.R. 957 (obiter) ; Pigot v. Charlewood (1734), Barnes 200, 94 E.R. 875; Luntly v.-(1883), 1 C. & M. 579, 149 E.R. 530 ; The Case of the Sheriff of Oxfordshire (1816), 2 Car. & K. 200, 175 E.R. 83 ; The Case of the Sheriff of Kent (1846), 2 Car. & K. 1972 175 E.R. 82. Barristers attending court with a view to being engaged to practise are not privileged: Newton v. Constable (1841), 2 Q.B. 157, 114 E.R. 62 ; Brett M.R., obiter, in Re Freston, supra, footnote 84, at p. 552. 226 Graham B. in Ricketts v. Gurney (1819), 7 Price 699, at p. 704, 146 E.R. 1106, at p. 1108 ; Luntly v. -, supra, footnote 225 ; The Case of the Sheriff of Kent, supra, footnote 225 . Casual impecuniosity is no ex-

1956] . Civil and Criminal Aspects of Contempt of Court 155 prove deviation, where it was shown that the privileged person was on his way home.221 The person claiming privilege because of court attendance has to file with his application for discharge-an affidavit showing unequivocally that he was entitled to his privilege. , Ministers celebrating divine service have been held to enjoy statutory immunity from arrest during the service and also eundo et redeundo. It was further held that this privilege extended to their assistants .229 In the province of Quebec, priests and ministers of any religious denomination enjoy a limited privilege at all times. It pro-. tects them from arrest or imprisonment by reason of any debt or cause of civil action, but it does not protect them from coercive imprisonment under articles 833 or 834 of the Code of Civil Procedure.23 o Persons of the age of seventy years and upwards and women enjoy in the province of Quebec the same limited privilege from arrest and imprisonment as do ministers of religion."'

111. The Distribution of Legislative Powers By section 91(27) of the British North America Act, 1867, the criminal law, including the procedure in criminal matters, is within the exclusive legislative authority of Parliament, while by section 92(15) the imposition of penal consequences for enforcing any law of a province made in relation to any matter coming within the classes of subjects enumerated in section 92 of the act is within the legislative authority of the provincial legislatures to the exclusion of Parliament. While the courts apparently have not had an opportunity to pronounce upon the question whether legislation with regard to any contempt other than contempt in procedure falls under the provisions of section 91(27), and therefore within the exclusive' cuse for tarrying : Spencer v: Newton (1837), 6 Ad. & E. 623 ; 112 E.R. 239. 221 Selby v. Hills 223 (1832), 8 Bing. 166 ; 131 E.R. 364. Stiles v. Mead (1727), 2 Stra. 738, 93 E.R. 818 ; Garden v. Shears, supra, footnote 225 ; Newton v. Harland (1839), 8 Scott 70, 3 Jur. 679 . But cf. Strong v. Dickenson (1836), 1 -M. & W. 488, 150 E.R. 527, where the affidavit .was equally consistent with the afllant solicitor's presence in a coffee-house for a purpose.entirely unconnected with the proceedings and 229he was held not to be entitled to privilege. Priest's Privilege Case (1556), . 12 Co. Rep. 100, 77 E.R. 1375 ; . Goddard v.. Harris (1831), 7 239 Bing. 320, .131 E.R. 124. Art. 835(1) C.C.P. Poi: the, wording of articles 833 &A4'.,834, lsée 64, supra. fôôtnote231 Art. 835(2) and (3) C.C.P. , .

156 THE CANADIAN BAR REVIEW [VOL. XXXIV jurisdiction of Parliament, the Supreme Court of Canada decided recently that in proceedings for certain criminal contempts the jurisdiction of the provincial legislatures under section 92(15) is excluded.232 Whether this means that it is ultra vires of the provincial legislatures to legislate with respect to all criminal contempts, or only with respect to contempts consisting in disobedience to labour injunctions, does not appear from the decision. The more restricted assumption is preferable, because it is com- patible with the authority of the Nat Bell Liquor case."' In that case the Judicial Committee was called upon to decide whether the word "criminal" in the Supreme Court Act... was to be limited to the sense in which criminal legislation is exclusively reserved to the federal Parliament by section 91, or whether it includes that power of enforcing other legislation by the imposition of penalties, including imprisonment, which it has been held that section 92 authorizes provincial legislatures to exercise. The decision was that "criminal" was not limited to matters falling within section 91(27) of the British North America Act. However, in the Poje case the Supreme Court of Canada held that because the contempt was "criminal" the provincial rules of court were inapplicable,"' it being ultra vires a provincial agency to legislate with respect to criminal matters. If the word "criminal" covers matters falling under section 91(27) and under section 92(15) of the British North America Act, it is difficult to understand why it should be ultra vires a provincial legislature to make laws with respect to breaches of a court order issued on the application of a private party for the sole benefit of that party. Neither the proviso in section 8 of the Criminal Code preserv- ing the jurisdiction of the courts to punish for contempt nor section 9, giving for the first time in legal history a right of appeal in criminal contempt cases (limited to an appeal against punishment for contempt in facie curiae), impinges upon the powers of

232 poje v. A.G. of B.C., supra, footnote 43, at p. 796 : "It follows that the Rules of Court are inapplicable as they apply only in civil proceedings". 233 R. v. Nat Bell Liquors Ltd. (1922), 37 Can. C. C. 129 (P.C. from Alta.). 2S4 R.S .C ., 1906, c. 139, as amended by Stats. Can., 1920, c. 32. It has not been overlooked that the decision in the Nat Bell Liquor case turned on the interpretation of a statute . But the ratio of the case, excluding appeals in criminal cases, no matter whether they arise from the breach- of a federal or a provincial statute, implies that it is within the power of both Parliament and the provincial legislatures to pass legislation with respect to criminal matters, including, it is submitted, criminal contempt of court. 235 Supra, footnote 232.

1956] Civil and Criminal Aspects of Contempt of Court 157 the provincial legislatures. Other provisions of the Criminal Code, namely, those contained in sections 457, 610, 612 and 514(2), relate to criminal procedure only and are undoubtedly within the legislative power of Parliament. Although, in view of'the Poje case, the difficulty of drawing the dividing line between the two contempt .jurisdictions should not be overlooked, there is at present no serious conflict between Dominion and provincial legislation on contempt. But, in case further legislation were contemplated, it might be said that no conflict between the two legislative powers need arise, because matters which, from one point of view and for one purpose, fall exclusively within the Dominion authority, may, nevertheless, be proper subjects for legislation by the Province from a different point of view.238 IV. Conclusions From the foregoing it appears that, as the law stands at present, there is hardly a topic in the Canadian law on contempt that is free from uncertainty. While it is true that great progress has been made in establishing a statutory 'appeal jurisdiction in cases of criminal contempt, the substantive law has not yet been touched by any modern legislative measure . There is still no- certainty where the dividing line is to be drawn between criminal and other contempts. This uncertainty may have serious effects in cases of alleged contempt, where an injunction has been breached. In criminal contempt cases knowledge off an injunction was. held sufficient to base contempt proceedirigs, 237 and strict compliance with service requirements was held essential in civil contempt cases."s Consequently, if no reliable dividing line between these two classes of contempt can be drawn, it will in many cases be impossible to decide whether a contempt has been committed at all. The uncertainty as to what constitutes criminal and what non-criminal contempt affects further the question of privilege,239 the question whether the contemnor can escape the consequences of his behaviour by compromise with his opponent 2" and so on., . Furthermore, the combination of a lack of legislative provisions and the absence of a right to appeal has, in some cases, pro- "" Duff C.J. in The Provincial Secretary of P.E.I. v. Egan, [1941] S.C.R. 396, at p . 401. The constitutional validity of the statutory contempts, listed supra under footnotes 58, 59 and 61, has not been seriously doubted. 23"Supra, text preceding footnotes 127-128 . 238 Supra, text preceding footnotes 137-140. 239 Supra; text preceding footnotes 207-231 . 211 Supra, text following footnote 38.

158 THE CANADIAN BAR REVIEW [VOL . XXXIV

duced results which, measured against related branches of the law-for example, the law of defamation-cannot be called satisfactory. The newly created right of appeal241 may rectify some anomalies, but it cannot rectify one anomaly inherent in the code itself and this is its incomplete coverage of contempt of court, a topic on which legislative guidance would have been most helpful. There appear then two points within the law of contempt worthy of special comment. First, what acts or omissions constitute contempt? This point will be illustrated by a comparison of two recent decisions, both based on a newspaper article concerning a murder trial.242 Once a clear case of contempt has been established, a further question emerges : Is the case to be classified as civil or as criminal contempt? This question will be dealt with in a comment on the Poje case."'

(a) Newspapers and the Criminal Code There exists, among others, one important reason, not without political significance, why it is desirable to have, in statute form, a definition of all acts of contempt liable to be punished. This submission is based on the conviction that the freedom of the subject cannot be guaranteed unless the principle nulla poena sine lege becomes part of the law. Modern criminal codes express this principle,"' and its influence on the framers of the new Criminal Code is unmistakable. The principle is embodied in section 8 of the code, but the important proviso that the jurisdiction to punish for contempt remains unaffected"' nullifies, of course, its full force so far as Canadian criminal law is concerned. The enactment of sections 457, 610 and 612 relating to contempt of court by witnesses and of section 514(2), on disobedience to certain orders, is only a start in the right direction. In view of certain dicta"' the possibility cannot be excluded that the contempt power will be extended to fields yet unknown. Recent developments 247 show that these expectations are not unfounded. 241 Supra, text preceding footnotes 145-156. 242 Re Nicol and MacKay v. The Southam Co. Ltd., supra, footnote 16. 243 Supra, footnote 44. 244 See, e.g., article 4 of the French Criminal Code of February 12/22, 1810 : "Nulle contravention, nul délit, nul crime, ne peuvent être punis de peines qui n'étaient pas prononcées par la loi avant qu'ils fussent commis" . 246 "[Njothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before the coming into force of this Act, to impose punishment for contempt of court." 246 E.g., Williams J. in Miller v. Knox, supra, footnote 11,, at p. 589 ; E.R. at p. 916. 247 See, e.g., the Poje case, supra, footnote 44. "

1956] Civil and Criminal Aspects of Contempt of Court 1:59:

If we are determined to make the principle nulla ;poena sine lege part of our law, it should not be too difficult to do away with contempt as a common-law crime, a disconcerting,,anachronism in our Criminal Code.248 . As.'the law stands in . Canada at present,, any criticism of the, judicial machinery may invoke contempt proceedings. An . opponent of capital punishment, for example, who as a. member of a society that employs human beings for the destruction. of fellow human beings feels a sense of guilt and, after a death sentence has been passed, airs his feelings in a newspaper article, may be punished for contempt. He may not criticize that section of the Criminal Code which requires a judge sentencing, a murderer to appoint the day of execution.249 To imply that the application of this section involves cruelty has been held to impute wrong motives to the judge"' and in the same case -it was held,that applying ."a term of opprobrium" to a, jury amounted to contempt of court,2" although the same term was, in the defamation suit later instituted against the contemnors, held by the trial judge not to constitute a libel.252 The law and practice in the United States with regard to contempt differs from ours and there is no .uniformity among federal and state laws 253 There are various reasons, why these. laws would be unsatisfactory models in Canada. The contempt power is, applied in the United States in cases where; it,is hoped, a Canadian, or English judge will never use it.254 On the .other hand, the reaction to a too wide use of the contempt power seems to have produced in the United States a state of affairs,where ."'trial by newspaper', 298 On this postulate see, e.g., the remarks of the Hon. George Drew, supra, footnote 127. , .. 249 S. 643 ; s. 1063 of the 1927 Code. 260 Re Nicol, supra, footnote 16, at p. 698 ; but see Ambard v. A.-G., supra, footnote 12, at p. 709, and McLeod v. St. . Aubyn, footnote 15, at p. 561 . lei Ibid., p. 696. 252 MacKay v. The Southam Co. Ltd., supra; footnote . 16. On -the Nicol çase see, Post-trial Contempt :, Criticism of Judge .and Jury (1955), 55 Col. L. Rev. 114, and on U.S. federal law, e.g., Contempt by Publi- cation (1950), 59 Yale L.J. 534. , 253, Cf. Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts, etc., (1924), 37 Harv. L. Rev. 1010. 254 Cf., e.g., R. H. Witty in (1951), 14 Mod. L. Rev: 89, on,the case, Of Vincent Hallinan, a leader of the California bar,°who,. in the middle- of the perjury trial of one Bridges, a trade union leader, was sentenced to six months imprisonment for contempt of court ; or Fowler Harper and . David Haber, Lawyer Troubles in Political Trials (1951), 60 Yale L.J. 1, on United States v. Dennis (1950), 183.,F. 2d 201 (U.S.C.A ., 2nd Cir.), certiorari granted, 19 U. S.L. Week 3116,,where counsel for the accused were jailed for contempt for having, inter: aliq;`,`persisted in making long, repetitious and unsubstantiated:,argttments, .:ï, , ;.: working 1n,shifts' ry ;

160 THE CANADIAN BAR REVIEW [VOL. XXXIV

is protected to a considerable degree by the constitutional right of freedom of the press"."' It would be a sad day indeed were the independence and integri- ty of our judiciary to yield to the clamour for partisan decisions dictated by a sensational press in the name of freedom of speech and the wishes of the people. It is, however, submitted with deference that decisions like Re Nicol strengthen such voices, because the punishment meted out in that case does not appear to have been dictated by the need to preserve public confidence in the administration of justice. This then is not a plea for diminishing the contempt power where its maintenance is essential for the proper administration of justice. No one would wish to see the judges sitting helplessly in the face of insolent behaviour in open court, although history shows that even in such instances our sense of proportion has improved considerably since the seventeenth century, when it was not unusual to punish a contemnor by amputating his right hand."" One could hardly consider it in the interest of a fair and impartial trial to permit newspapers to employ their own investi- gators and publish their evidence before the trial,"? whether such evidence would or would not be admissible at the trial, or to permit them to publish photographs of the accused, where his identity had not yet been established.2" Nor would it be in the interest of justice to permit an interference with the parties to a suit, where such interference would tend to compel either or both of them to change their course of action from fear of public dislike.259 In such cases the exercise of the contempt power is a reliable weapon in the struggle against injustice. The writer joins issue, however, with the suggestion that the interest of the public can be satisfied merely by a full and accurate report of court proceedings.211 The sug-

255 Delaney v. U.S. (1952), 199 F. 2d 107, at p. 113 (1st Cir.) ; Hedo M. Zacherle, Pretrial Fact Press Reports as Contempt (1954), 38 Iowa L. Rev. 738. 255 Cf. Anon. (1631), supra, footnote 15 : "A prisoner . . . threw a brickbat at the . . . Judge, which narrowly missed ; and for this an indictment was immediately drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was himself immediately hanged in the presence of the Court" . 257 R. v. Tibbits ; R. v. Clarke ; R. v. Evening Standard (1924), supra, footnote 14. 25s R. v. Daily Mirror, [1927] 1 K.B. 845. 259 Re The William Thomas Shipping Co. Ltd., supra, footnote 12; Re R. v. Solloway, supra, footnote 14. 250 Arthur L. Goodhart, Newspapers and Contempt of Court in Eng. lish Law (1935), 48 Harv. L. Rev. 885, at p. 910.

1956] Civil and Criminal Aspects of Contempt of Court 161 gestion overlooks one of the most important functions of a free press, its duty to interpret the news and to. offer constructive criticism It is . . . one thing to make a judge secure; it is another thing to protect him from just comment by the citizen-body. . . . To secure for the public the certainty that this criticism will be made is therefore important . . . . Yet no such protection is afforded . . . in English law.261 Justice could not be done if the members of the court were to divert their energies from finding the law to asserting their jurisdiction in the face of various pressure groups. A judge hearing a case must not be exposed to fears or apprehensions, litigants must be , protected against the possibility that their case will be influ- enced by matters extraneous to the litigation in which they are engaged, and an accused must not be exposed to attempts to arouse public opinion against him. Ifthis is the true purpose of the protection granted to the courts, the dignity of the court is no longer identical with the prestige of the individual judge or the bench."' The protection is designed to ensure freedom from unlawful interference with the due process of law. If this is accepted, we may come to a further conclusion, namely, that the suppression of constructive criticism itself constitutes an interference with the due administration ofjustice."' (b) The vanishing line between civil land criminal contempts I have attempted to show that identical behaviour may rightly be classified-as criminal or civil contempt, depending on the person of the contemnor or the purpose of the classification264'There are only a few cases where a claim to limited privilege was upheld. It is difficult to predict when in any given case the court will classify a contemnor's behaviour as civil contempt. A similar difficulty, though to a lesser extent, exists with regard to the classification as 281 H. J. Laski, Procedure for Constructive Contempt in England (1928), 41 Harv. L. Rev. 1031, at pp. 1031 and 1033, an article quoted by Frankfurter J., dissenting, in Bridges v. State of California, supra, footnote 16, at p. 291 ; L.ed. at p. 218. 282 See, e.g., MacKay J. in R. v. Wallbridge, supra, footnote 14, at p. 379 ; McLeod v. St. Aubyn, supra, footnote, 15, at p. 561 ; R. v. Daily Mirror, supra, footnote 258, at p. 847 ; R. v. Sullivan (1951), unreported, referred to by F. A. Brewin, Contempt of Court (1952), 30 Can. Bar Rev. 614, at p. 614 ; and see Hon. Uriah McFadden, Contempt of Court, [1937] 3 D.L.R. 385. But cf. Canadian Transport (U.K.) Ltd. v. Alsbury, supra, footnote 44, at p. 480. 283 Cf. Hon. J. C. McRuer, Criminal Contempt of Court Procedure, etc. (1951), 30 Can. Bar Rev. 225, at p. 236. And see the remarks of Frankfurter J. in his dissenting judgment in Bridges v. State of California, supra, footnote 16, at p. 284 ; L.ed. at pp. 214-215.- 284 Supra, text preceding footnotes 37-53.

162 THE CANADIAN BAR REVIEW [VOL . XXXIV criminal contempt of acts not committed in the presence and within the hearing of the court. Having these difficulties in mind, one is not surprised to read that the law of contempt, at least with respect to its criminal and non-criminal aspects, is shrouded in obscurity."' The main reason for this state of affairs flows, I think, from the necessity of applying the old contempt concept to new social developments. It is submitted that most difficulties pertaining to the characterization of contempt of court could have been avoid- ed had the contempt power been conceived of as a means of ob- taining one of the following ends : the upholding of what is short- ly described as the dignity of the court, the protection of the rights of contending parties against their opponents and strangers, and the enforcement of the discipline of the officers of the court."' This, being the true purpose of the contempt power, should also determine its content and its classification in any given case as civil or criminal. The old concept merely represents what was considered contempt at a given moment in history. It should not be applied indiscriminately to contemporary circumstances that could not have been foreseen by those who initially formed it. If it is, the result will hardly ever accord with substantive justice. A satisfactory alternative can, it is submitted, be found only in a reformulation of the contempt concept. This reformulation should be based on a value judgment appraising the interests to be protected."' The rendering of a value judgment of this kind is not part of the judicial process. It has been said that Values . . . cannot be grasped by the intellect ; they can only be felt ; the intellect is blind to values .268 The task of reformulating the contempt concept should not, therefore, be left to the process of judicial reasoning; it is one for the legislative branch of government. The demand for a statutory definition of the limits of contempts

265 Sidney Smith J.A. in the Poje case, supra, footnote 44, 7 W.W.R . at p. 66. In the United States the distinction between the two classes of contempt has likewise proved to be a vexatious one. See the comment on Alexander v. U.S. (1949), 173 F. 2d 865 (1949), 62 Harv . L. Rev. 1396. 266 Supra, text preceding footnotes 79-82. 267 Cf. Max Ruemelin, Developments in Legal Theory etc . (1930), in The Jurisprudence of Interests (ed . and transl . by M. M. Schoch ; Har- vard Univ . Press, 1948) p.15 . See the value judgments on the contempt power by Brougham L.C. in Wellesley v. Beaufort, supra, footnote 36, at p. 659, E.R. at p. 545, and by Riddell J.A. in Bassel's Lunch Ltd. v. Kick, supra, footnote 87, at p. 110. 268 H. Isay, The Method of Jurisprudence of Interests, in M. M. Schoch (ed .), op. cit., p. 317.

1956] Civil and Criminal Aspects of Contempt of Court 163 and. of the punishment applicable to them is neither original nor new."' The question is not, it is submitted, whether the law as administered is harsh and arbitrary. Rather the problem appears to be this The existence of arbitrary power in a judge may cause him to abstain from exercising it . . . when punishment is necessary. In any case, it seems desirable to fix a statutory limit to the period of imprisonment and to the amount of the fine in cases of contempt, especially if it can be shown that the present practice is the result of encroachment on the rules of the common law.27o The following suggestions are made, mainly with the law of labour injunctions in mind. The division. of contempts into criminal and others has little meaning so far as punishment is concerned : the court has jurisdiction equally to jail a contemnor of proceedings and the perpetrator of a criminal contempt. The dividing line between the two classes of contempt is not drawn at the same point where privilege is claimed and where a right of appeal is being asserted. Appeals were entertained in cases where privilege was refused. If, then, the division between contempts criminal and non-criminal is to have any meaning at all, if, for example, the penal sanction of section 108 of the Criminal Code is not to be applied to all contempts or to most of them indiscriminately, and if the prerogative right of the Crown to pardon, exercisable only in criminal cases, may be exercised without questions of constitutionality being raised, the division can, it is submitted, be established with but one consideration in mind : the purpose of the contempt proceedings."' If we accept the proposition ventured earlier in these conclusions, namely, that the dignity of the courts means the freedom from unlawful interference with the due process of law, any in- sult to the court or a judge not amounting to such an interference should properly be dealt with otherwise than by contempt proceedings.272 Where private rights have been violated, the aggrieved party has, as a rule, sufficient remedies at his disposal without having to rely on contempt proceedings. Legal history shows that it was possible to'dispense with contempt proceedings even when they were looked upon as an obvious remedy.273 While it is pro- 211 Sir John C. Fox, Eccentricities of the . Law of Contempt of Court, supra, footnote 11, at p. 394. 270 Ibid., p. 398. 271- Supra, footnote 84. 272 See supra, footnote 28, and the remark of Bowen L.J. in Be Bahama Islands, supra, footnote 29: "The essence of the offence is that,it is against the public not the judge, an obstruction to public justice". 271 E.g., up to 1875, in a Chancery suit, non-entry of appearance was

164 THE CANADIAN BAR REVIEW [VOL. XXXIV bably impossible to do away with the contempt power in civil proceedings altogether, it should, in the writer's submission, be abolished wherever any suitable alternative remedy can be found. A fortiori, it should never be used where the order on which its exercise is based has become obsolete. It should be obvious that no good purpose can be served by enforcing obedience to an order in which the party who obtained it is no longer interested. Where, therefore, as in the Poje case, the parties have settled their grievances out of court, the enforcement of a court order which in consequence of the settlement has become obsolete cannot be in the interest of the parties, because it would deprive them of the power to control their own litigation. It may be said that enforcement proceedings are nevertheless necessary to uphold the prestige of the court, and this, indeed, was the majority opinion in the Poje case. But the dissenting judgment in the Court of Appeal 2'4 should not be ignored. The ratio of the Poje case has placed both parties to future labour disputes in a disadvantageous position. Apart from having to consider their own respective interests, they will now be compelled to take into account possible proceedings the court may take on its own behalf. An employer may in future hesitate to take injunction proceedings or, having taken them, to proceed with the enforcement of an injunction, because he cannot now be sure that the enforcement procedure will not develop into proceedings which he can no longer control. Having in mind these results, the view expressed by O'Halloran J.A. in his dissenting judgment is, with deference, submitted as a guide for future legislation. He said : It is not sufficient, in myjudgment, to commit people for breach of an exparte injunction before trial for conduct outside the court, simply because of their non-compliance with that order, and because a judge may personally feel strongly that it amounts to a contempt of court. 275

. . . Where a judge takes it upon himself to initiate contempt proceedings in relation to something that has occurred outside the court he may place himself in an awkward position and embarrass the higher courts by becoming a party in the appeal. . . . I think it must be generally accepted that it would be far from an edifying spectacle to have a high ranking superior court judge as a party before an appellate court in respect to a court order he has made. Such a thing would do a great deal to undermine the dignity and prestige of a superior court 7 of first instance in the eyes of the public .2 e

enforceable by attachment : Sir John C. Fox. The Nature of Contempt of Court (1921), 37 L.Q. Rev. 191, at p. 194. 274 Infra, text preceding footnotes 275-277. 275 (1952), 7 W.W.R. (N.S.) at p. 58. 276 Ibid., p. 59.

1956] Civil and Criminal Aspects of Contempt of Court 165 In conclusion, nothing in these reasons is to be interpreted in the light of the authorities as even remotely questioning the necessity for compliance with court orders, and the equal necessity for all lawful steps being taken wisely to deal with any such non-compliance according to its kind and nature and all its' surrounding circumstances?77

Psychotherapy in Criminology At the opening of this century we were concerned, as now, with progress in the ascertainment and treatment of offenders who were insane and mentally defective. We have come to realize that the problem is com- paratively small. But its importance is to be measured by the fact that it endangers social security, and public welfare is dependent upon our aware- ness. No relaxation in this sphere is permissible. Progress in the future with regard to both ascertainment, prognosis and treatment may be looked for among those offenders who are not insane or mentally defective but are included in the subnormal, psychoneurotic and psychopathic person- ality groups. We may hope that the prison clinics, and when established, the special penal institution recommended in the Reporton the Psychologi- cal Treatment of Crime, combined with the psychiatric clinics attached to hospitals for civil patients will have their full effect on the treatment of the mentally abnormal offenders who are not certifiably insane or mentally defective. Psychotherapy, however important, is not a large-scale alternative to, imprisonment. There remains the major group of offenders whose in- tractability is not the result of major or minor mental disease. The group is essentially the result of antisocial or asocial character traits, some of which are traceable to inherited causes whilst others depend'upon remedi- able environmental factors which may be attacked by ordinary methods. The modern conception of training as an important factor in socialization of the offender not only marks the official view of the problem but recog- nizes its possibilities . In his recently published book, Fox (1952), Chair- man of the Prison Commission, in one passage, states : `If one fact can be accepted as established in the field of criminology, it is the overwhelming influence of unsatisfactory home conditions in the formation of delin- quency and that not only among juveniles. Roper (1950), in a detailed survey of over 1,400 adult prisoners at Wakefield and Dartmoor, found not only faulty home training and bad family relations, but a preponderat- ing influence on subsequent criminality-this was to be expected; he also found that "25 per cent of the marriages represented have been broken by separation or divorce" and that "the man from a faulty home tends to recreate faults in his own home, when he comes to found one, and this hands evil down the generations." These observations suggest how wide a field of work there may be hitherto almost untouched, in seeking the rehabilitation of an offender through his family as well as through his personal training.' (Sir Norwood East, The Roots of Crime (1954) pp. 23- 24)

277 Ibid., pp. 63-64.