III. CONTEMPT OF COURT Linda Fuerst* A. Introduction Critics have condemned the power to punish for contempt in Canada as "antiquated and autocratic",' "remedial and coercive", 2 and 3 "complex and ill-defined". While not all have been so harsh, most agree that the law in its present state is vague, confusing and in need of reform. 4 The contempt provisions in Bill C-19 5 address many defects in the current law. The most significant revision is the amendment of section 8 of the Criminal Code, 6 abolishing the common law power of judges to punish for contempt.' The Bill adopts the recommendation made by the Law Reform Commission of Canada that steps be taken to eliminate the anomaly created by section 8 and to enumerate and define the forms of criminal contempt. Section 8 would be amended to restrict liability to one of three offences created in the Code, 9 with the exception of the power to impose punishment for non-compliance with a judicial order in a civil matter.' 0 * Law Reform Commission of Canada. This article does not necessarily reflect the Commission's views. 1 Cavanaugh, Civil Liberties and the Criminal Contempt Power. 19 CRIM. L.Q. 349, at 361 (1977). 2 Watkins, The Enforcement of Conjrmity to Law Through Contempt Proceed- ings, 5 OSGOODE HALL L.J. 125, at 139 (1967). 3 Speech by The Honourable Mark MacGuigan, Lawyers' Club of Toronto Meeting, 9 Jan. 1984. 4 See Coveney, Contempt of Court: Bulvark of Freedom or Lynch-Pin of Tyranny?, 13 WESTERN ONT. L. REV. 157 (1974); Martin, Several Steps Backward: The Law Reform Commission of Canada and Contempt of Court, 21 WESTERN ONT. L. REV. 307 (1983). 5 Criminal Law Reform Act, 1984, Bill C-19, 32nd Parl., 2d sess., 1983-84 (1st reading 7 Feb. 1984) [hereafter cited as Bill C-19]. 6 R.S.C. 1970, c. C-34. 7 S. 8, as proposed in Bill C-19, cl. 6. 8 LAW REFORM COMMISSION OF CANADA, CONTEMPT OF COURT, WORKING PAPER 20, at 48 (1977) [hereafter cited as WORKING PAPER 20]. According to the Commission, s. 8 is an anomaly in Canadian criminal law because it is the only remaining common law offence. This is inconsistent with the basic principle that there must be a specific legislative enactment prohibiting particular conduct before that conduct can become the subject of a criminal prosecution. 9 See s. 131.11 (interference with judicial proceedings), s. 131.12 (affront to judicial authority) and s. 131.13 (disruption of judicial proceedings), as proposed in Bill C-19, cl. 33. 10 R.S.C. 1970, c. C-23, s. 10. 19841 Bill C-19: Contempt of Court B. Offences and Defences The three offences to be defined in the Code correspond roughly with the common law rule of sub judice and the common law offences of contempt in the face of the court and of contempt by scandalizing the court. 1. Inteiference with JudicialProceedings (a) The Offence The Bill creates an offence of knowingly making a "publication" that creates a substantial risk that the course of justice in a pending civil or criminal proceeding would be seriously impeded or prejudiced." "Publication" is broadly defined as "any speech, writing, broadcast or other communication made by any means that is addressed to the public at large or any section of the public". 12 The Bill specifies when a civil proceeding, criminal proceeding or an order granted on appeal requiring a new trial is "pending". A criminal proceeding would be "pending" from the time of the accused's arrest without warrant, from the time of the issuance of an appearance notice, summons or warrant for arrest 13 or from the time of the commencement of the proceeding by the preferring of an indictment or bill of indictment, until the determination of the proceeding by verdict, sentence, discontinuance or by other disposal. 14 This offence resembles the common law rule of sub judice, which empowers the courts to punish comments that may prejudice or interfere with the fair and impartial administration of justice. 15 Several aspects of this definition do not make significant changes to the present law. For example, requiring a "substantial risk" that the publication will seriously interfere with the course of justice is consistent with Lord Diplock's comment in Attorney-General i. Times Newspapers Ltd. In order to constitute contempt, he said, the conduct must present "a real risk as opposed to a mere possibility of interference with the due administration of justice".16 The requirement also reflects the view expressed by Hall J. in Attorney Generalfor Manitoba v. Winnipeg Free 1' S. 131. 11, as proposed in Bill C-19, cl. 33. 12 S. 13 1. 1, as proposed in Bill C-19, cl. 33. 13 This is consistent with the definition of an "accused" in s. 448 of the Criminal Code as including "a person to whom a peace officer has issued an appearance notice" or "a person arrested for a criminal offence". 1' Ss. 131.1 and 131.11, as proposed in Bill C-19, cI. 33. 15 WORKING PAPER 20, supra note 8, at 37; S. ROBERTSON, COURTS AND THE MEDIA 23 (1981). 16[197313 W.L.R. 298, at 320, [197313 All E.R. 54, at 75 (H.L.). Ottawa Law Review [Vol. 16:316 Press Publishing Co., that a substantial interference with a fair trial must be established.' 7 However, the inclusion of the word "knowingly" in the definition of the offence does change the present law, which requires only an intention to publish.' 8 This would prevent convictions when publishers are unaware of pending proceedings or of the risk created by publication. The definition of a "pending" proceeding also answers the "traditionally vexing question . of determining the point in a given proceeding at which the sub-judice [sic] rule begins to operate". 19 At the present time, whether the rule operates prior to arrest or the laying of charges is not clear.2 0 Stuart Robertson has advised that "when it is evident that a person is about to be arrested or that an information is about to be sworn and a summons or warrant issued, a reporter would be prudent to ensure that any statements made will not interfere with a future proceeding". 2 ' Thus, Bill C-19 introduces some precision to this area of law. The law in its present state appears to extend the sub judice rule to appeal proceedings in criminal cases. 2 Unfortunately, the definition of "pending" in Bill C-19 makes it unclear whether the offence of disruption would continue to apply after the determination of a criminal trial. The phrase "or other disposal" may mean the discharge of an accused at the preliminary inquiry or a direction by the prosecutor to stay proceedings pursuant to section 508 of the Criminal Code. Alternatively, it could be interpreted to mean the determination of appeal proceedings. The latter interpretation is consistent with a broad view of one of the primary purposes of the sub judice rule, namely, that it is intended to 17 47 C.R. 48, at 50, 52 W.W.R. 129, at 130-31 (Man. Q.B. 1965). See also LAW REFORM COMMISSION OF CANADA, CONTEMPT OF COURT, REPORT 17, at 28 (1982) [hereafter cited as REPORT 17]. 18 G. BORRIE & N. LOWE, THE LAW OF CONTEMPT 193 (1973); S. ROBERTSON, supra note 15, at 101; Martin, supra note 4, at 313; Shifrin, The Law of Constructive Contempt and the Freedom of the Press, 14 CHITTY'S L.J. 281, at 293 (1966); WORKING PAPER 20, supra note 8, at 39-40; Cavanaugh, supra note 1, at 355. See, e.g., Attorney General of Manitoba v. Winnipeg Free Press Publishing Co., id. at 51, 52 W.W.R. at 131-32; R. v. Barker, 53 C.C.C. (2d) 322, at 337, [1980] 4 W.W.R. 202, at 218-19 (Alta. C.A.); R. v. Vairo, 4 C.C.C. (3d) 274, at 276 (Qu6. C.S. 1982); McLeod v. St. Aubyn, [1899] A.C. 549 (P.C. Can.). 19 Martin, id. at 312. See also Watkins, supra note 2, at 142; Ziegel, Some Aspects of the Law of Contempt of Court in Canada, England, and the United States, 6 McGILL L.J. 229, at 235-37 (1960); Brown, Some Contemporarv Problems in the English Law Relating to Contempt, 15 C. DE D. 740, at 743 (1974). 20 Supra note 2, at 142-43. According to Professor Watkins, "the press ... must act at its peril when reporting situations that appear to demand criminal prosecution, for if proceedings are in fact pending or imminent, then a conviction for contempt is a strong possibility". See also R. v. Parke, [1903] 2 K.B. 432, at 437, [1900-03] All E.R. Rep. 721, at 723; R. v. Daily Mirror, [1927] 1 K.B. 845, at 851, [1927] All E.R. Rep. 503, at 505-06. 21 S. ROBERTSON, supra note 15, at 49. 22 R. v. Davies, [1945] K.B. 435, [1945] 2 All E.R. 167; R. v. Bartlett, 131 C.C.C. 119 (Man. C.A. 1961). 1984] Bill C- 19: Contempt of Court prevent courts, including appeal courts, from being prejudiced in the fair and impartial determination of cases. Humphreys J. expressed this view inR. v. Davies: It seems to me that the bringing before the minds of judges who have to try an appeal in a criminal case matters which they do not desire to know, and which if brought to their attention are likely to embarrass them in the fair and impartial consideration of the case, is wrong.