Morasse v. Nadeau-Dubois2016 SCC 44 (Civil procedure — Contempt of court — Required knowledge and intent)

On appeal from a judgment of the Quebec Court of Appeal (2015 QCCA 78), setting aside a conviction and sentence for contempt of court by Jacques J. (2012 QCCS 5438) and entering an acquittal.

N D was the spokesperson for a student organization that held protests and formed picket lines in Quebec’s various post secondary institutions over proposed increases in university tuition fees. M, a student, obtained a provisional interlocutory injunction that mandated free access to the facilities in which classes for M’s program were held. In a television interview he gave with another student leader, N D stated that such attempts to force students back to class do not work, that a minority of students use the courts to circumvent the majority’s collective decision to go on strike, and that picket lines are an entirely legitimate means to ensure respect of the vote to strike. M filed a motion for contempt against N D for his comments in the interview. N D was found guilty of contempt of court under art. 50 para. 1 of the Code of Civil Procedure and sentenced to 120 hours of community service to be completed within six months under the supervision of a probation officer. The Court of Appeal set the conviction and sentence aside and entered an acquittal.

Held (6-3) (Wagner, Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ.:

What is at issue is whether a contempt charge brought by a private citizen against another individual, meets the strict procedural and substantive safeguards required by law to ensure that the liberty interests of those accused of contempt are fully protected. The power to find an individual guilty of contempt of court is an exceptional one. It is an enforcement power of last resort and the only civil proceeding in Quebec that may result in a penalty of imprisonment. Because of the potential impact on an individual’s liberty, the formalities for contempt proceedings must be strictly complied with. Clear, precise and unambiguous notice of the specific contempt offence must be given to the accused, and the elements required for a conviction must be proven beyond a reasonable doubt. A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice.

At the time M instituted private proceedings against N-D, the offence of contempt of court existed in two separate provisions of the Code, now consolidated in art. 58 of the new Code. Article 50 para. 1 established the courts’ generalability to hold someone in contempt. Article 761 created an offence for contempt of court that related specifically to breaching injunctions. Both provisions have been interpreted harmoniously with the common law. The offence of contempt of court at art. 50 para. 1 has two branches. Where a particular court order or process is at issue, both branches require actual or inferred knowledge of it. The first branch relates to disobeying any process or order of the court or of a judge. The person accused of contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. Under the second branch, the actus reus is made out where a person “acts in such a way as to interfere with the orderly administration of justice” or “to impair the authority or dignity of the court”. The acts done, or the words complained of must either succeed in doing so, or create a serious or substantial risk of having this effect. The mens rea for this form of contempt is an intention to vilify the administration of justice, to destroy public confidence therein, or to excite disaffection against it. Good faith criticism of judicial institutions and their decisions falls short of this threshold.

The only allegations raised by M against N‑D related to an alleged violation of one paragraph in an injunction order in the form of comments N‑D made in an interview. N‑D was not given notice as to which specific branch of art. 50 para. 1, if any, he was being charged under. With respect to the first branch, there was no evidence that N‑D had knowledge, either actual or inferred, of the order. The fact that there were other injunctions does not prove that N‑D knew of this particular order. Nor can knowledge be imputed to N‑D on the basis of his comments during the interview, the question he was asked, or the statements of the other student leader interviewed with him. Nor did his endorsement of students picketing in general amount to an encouragement to use picket lines to block access to classes, since the order did not prohibit picketing altogether. M’s failure to prove N‑D’s actual or inferred knowledge of the order is dispositive of the second branch. If N‑D did not know about the order, he cannot have intended to interfere with it, or encourage others to do so.

Per Moldaver J.:

In responding as he did in the television interview, N‑D intended to incite students at large to breach any and all court orders which enjoined the use of picket lines to block access to classes. Had the case proceeded on that basis, his call to disobey at large would necessarily have included the interlocutory injunction obtained by M, regardless of whether he had specific knowledge of it or not. However, the issue at trial was whether N‑D breached this particular order. The Quebec Court of Appeal therefore found correctly that the evidence did not support a finding that N‑D had specific knowledge of the order, and that this was fatal to the contempt finding. Given the way the case was argued at trial, it would be both unfair and prejudicial to allow M to change the theory of the case at this level of the proceedings. The appeal should be dismissed for this reason alone.

Per Wagner, Côté and Brown JJ. (dissenting):

The purpose of convictions for contempt of court, whether in a civil or a criminal context, is to maintain public confidence in the administration of justice and ensure the smooth functioning of the courts. This power is exceptional and must be exercised only as a last resort. Exercising it is nonetheless justified where a contempt conviction is necessary to protect the integrity of the justice system and to ensure that system’s credibility in the eyes of the public. Strict conditions, including the criminal law standard of proof, apply when a contempt order is made. But this does not mean that the use of the power must be so arduous that, in practice, it can no longer be exercised.

In this case, N‑D knew full well that the contempt charge he had to answer had been laid under both art. 761 and art. 50 para. 1 of the Code of Civil Procedure, as can be seen from the statements made by counsel for M at the appearance, from the special rule ordering N‑D to appear, which expressly referred to both provisions, from the acts alleged by M against N‑D in his motion and the description of the allegations against N‑D, and from the submissions made by N‑D at trial. It was therefore appropriate for the trial judge to determine whether N‑D was guilty under the final portion of art. 50 para. 1 of the Code.
Specific knowledge of an order is not essential for the purposes of the final portion of art. 50 para. 1 of the Code. The offence it establishes is broader than the simple breach of an order. A contempt conviction is possible under this provision even where the underlying order has not yet taken effect. Actual personal knowledge of a court order, a requirement that flows from the case law, can always be inferred from circumstantial evidence. The inference must be reasonable given the evidence or the absence of evidence, assessed logically, and in light of common sense and human experience. The evidence must establish that the person accused of inciting others to breach an order knew of the existence of one or more orders that were in effect at the time of the offence and was also in a position to know that his or her acts or words were contrary to those orders.
In this case, a contextual analysis of N‑D’s words can lead to only one reasonable inference. When considered in the context of the entire interview, those words show beyond a reasonable doubt that he knew of the existence, content and scope of the orders, and that he incited students to breach them.

The trial judge’s conclusion with respect to the actus reus is entitled to deference. The actus reus under the first portion of art. 50 para. 1 of the Code is disobeying any process or order of a court. By contrast, the actus reus contemplated by the final portion of that provision consists of any action that interferes or tends to interfere with the orderly administration of justice, or that impairs or tends to impair the authority or dignity of the court. When assessed in the context of the entire interview, N‑D’s words were an incitement to breach the order in question as well as the other orders that had been made to ensure that students would have access to their classes.
It would not be appropriate to interfere with the trial judge’s finding as regards the mens rea. An intention to interfere with the administration of justice or to impair the authority or dignity of the court is not an essential element of the offence of contempt; recklessness as to this consequence is enough. Given the context in which N‑D made his remarks, he knew that his act of defiance would be public and it may be inferred that he was at least reckless as to whether the authority of the court would be impaired.

The importance of freedom of expression and of the protection of that freedom in a democratic society can never be overstated. But one may not use the exercise of one’s freedom of expression as a pretext for inciting people to breach a court order. Ensuring compliance with orders made by the courts, and thereby maintaining the authority and credibility of the courts, has the effect of reinforcing the rule of law and, by extension, the fundamental freedoms, including freedom of expression.

The sentence imposed by the trial judge was neither unreasonable nor disproportionate. The trial judge correctly applied the rules dealing with the admissibility of evidence at the sentencing stage. N‑D’s argument that at the time the sentence was imposed, the need to prevent orders from being contravened no longer existed as a result of a legislative measure disregards the objective of denunciation in the case of contempt. The sentence that was imposed is not an unreasonable departure from the penalties imposed in similar cases in which the contempt was public in nature.

Joint reasons for judgment by Abella and Gascon JJ. (McLachlin C.J. and Cromwell and Karakatsanis JJ. concurring)

Concurring reasons by Moldaver J.

Dissenting reasons by Wagner J. (Côté and Brown JJ. concurring)

Neutral Citation: 2016 SCC 44

Docket Number: 36351