Some notes on contempt of court are in order after the Chief Justice of Manitoba’s Court of Queen’s Bench, Glen Joyal, heard in open court that the private investigator following him to his home was employed by one of the barristers pleading before him. Justice Joyal noted that such tactics could constitute obstruction of justice. They may also be a contempt of court by scandalizing the court.
The scandal in this occurs because the President of the Justice Center for Constitutional Freedoms, John Carpay, authorized the surreptitious surveillance of the Chief Justice. Mr. Carpay was in fact surveilling a host of senior government officials to determine whether any of them were violating COVID-19 health guidelines. This surveillance program was carried out while Mr. Carpay and Mr. Jay Cameron, the Centre’s litigation director, represent seven churches’ constitutional challenges to Manitoba’s COVID-19 health regulations before Justice Joyal.
Mr. Carpay has denied that the surveillance has anything to do with his organization’s involvement in the court case.
This note gives practitioners (and interested members of the public) a sense of the law surrounding criminal contempt of court. It describes some of the cases and then applies the cases to the facts described by Chief Justice Joyal.
The law of criminal contempt of court
The Supreme Court of Canada recognized contempt by scandalizing the court in Re Duncan. In that case, a barrister leveled an accusation of partiality against Justice Locke for which he had no proof and no basis for levelling. The Court took umbridge and, of its own motion, compelled the barrister to answer a charge of contempt. The barrister utterly failed, with the Court fining him $2,000 lest he be imprisoned for 60 days. He was also required to personally apologize ‘unreservedly in open Court for the statements made by him’. Until the apology was made, the Court prohibited him from appearing before the Court at the bar or in chambers. The Chief Justice described contempt by scandalizing the court as ‘any act done calculated to bring a Court into contempt or to lower its authority’ (p. 44).
Taking a broader (and more modern) view of the concept, contempt by scandalizing the court is a common law criminal offense, one of the only such offenses in Canada. The offense was described in R v Prefontaine with reference to its constituent elements:
in my view the actus reus of the offence, which must be established beyond a reasonable doubt, is whether a reasonable person in the community, well informed of the circumstances of the case, would conclude that by reason of the statements made, there was a serious risk that the administration of justice would be interfered with and that this risk is serious, real or substantial. In that context, I include the adjudicative process that is the “business of the court.” (para. 75)
McEachern C.J.A., in MacMillan Bloedel Ltd. v. Brown (1994), 1994 CanLII 3254 (BC CA), 88 C.C.C. (3d) 148 also adverted to recklessness being an element of criminal contempt when distinguishing criminal from civil contempt (at paras.91 and 92):
The act which constitutes civil contempt of court is the act of disobeying a court order. The mental element of civil contempt is that the disobedience must have been deliberate or reckless, that is, the possibility that the act would be disobedient must have been foreseen and ignored.
Criminal contempt contains all the elements of civil contempt. In addition, the act of disobedience must have been undertaken in a public way; and the deliberate or reckless act of disobedience must have been undertaken with an intention that such a public act of disobedience would tend to depreciate the authority of the courts, or, alternatively, with foresight that it might do so and indifference to whether it did so or not. (Emphasis original, para. 91)
These elements of the offense apply with reference to statements made in or about the courts. The statement must present a grave risk to the administration of justice and the accused’s state of mind must demonstrate, at a minimum, that the accused did not care whether the courts’ authority would be lessened by his gesture.
Prefontaine makes for difficult precedent because its facts deal with statements made before the courts. Such offenses are much more readily tried than statements made outside the court, let alone acts done outside the court.
Criminal contempt is reserved for the most flagrant cases that disrespect judicial authority. This observation is especially true when the only matter at issue are comments about the court or its judicial process. One of the controlling cases on this point is Regina v Kopyto. The Ontario Court of Appeal there held that a lawyer’s criticism of a court’s decision outside the courtroom was ground for contempt. The lawyer’s freedom of expression, however, restrained the Court’s ability to uphold a finding of contempt. The Canadian Charter of Rights and Freedoms protected a lawyer’s speech from criminal prosecution (although lawyers may still face professional discipline–see Histed v Law Society of Manitoba, para. 68). Justice Cory was, however, quick to add that:
The decision in this case should not be taken as a conclusion that the offence cannot exist. It is in effect a common law offence that, as presently defined, cannot meet the constitutional requirements of the Charter, and not an offence created by statute. The courts created the offence and thus the courts, as well as the legislature, might modify it to meet the requirements of the Charter. For example if the Crown were to prove:
that an act was done or words were spoken with the intent to cause disrepute to its administration of justice or with reckless disregard as to whether disrepute would follow in spite of the reasonable foreseeability that such a result would follow from the act done or words used;
and that the evil consequences flowing from the act or words were extremely serious;
and as well demonstrated the extreme imminence of those evil consequences, so that the apprehended danger to the administration of justice was shown to be real, substantial and immediate;
then the act or words could be punishable as a criminal offence in order to ensure the functioning of the judicial process.
The test summarized by Justice Cory is a concise and compelling statement of the offense. More to the point, Justice Cory’s statement applies across fields of conduct. Statements and actions are captured by the test.
Criminal contempt in 2021
The facts that Chief Justice Joyal described appear to constitute grounds for criminal contempt.
The central element to the offense in this case is that a litigant knowingly continued to surveil the Chief Justice while prosecuting a constitutional challenge before him. The challenge argues that COVID-19 public health orders barring religious congregations from assembling to worship infringe Charter rights to freedom of conscience/religion, expression, and peaceful assembly. While pleading this case, John Carpay, the President of the Justice Centre for Constitutional Freedoms, also had a private investigator surveilling the Chief Justice. The idea was to catch the Chief Justice in the act of violating COVID-19 health restrictions.
Once the Chief Justice pointed up the surveillance, Mr. Carpay was quick to apologize.
Justice Cory’s test comes into view.
Mr. Carpay ordered an act that, though likely not intending to cause disrepute to the Court’s administration of justice, arguably recklessly disregards the possibility of disrepute. In this case, that possibility obtains from either from the litigants desire to embarrass the judge in its case, thus affecting the outcome, or the perception that the judge is biased by the affront.
To be clear, Justice Joyal ought to be taken at his word that no bias will ensue.
The consequences flowing from Mr. Carpay’s decision must be extremely serious, and they are again arguably so serious. This is not a case where a lawyer expressed an intemperate or poorly worded opinion. A barrister breached the barrier between a judge’s public function and his personal life. Being followed from one’s place of work through the streets and to one’s home is inherently threatening.
This factor flows into Justice Cory’s third criteria: the danger to the administration of justice is substantial and immediate–so immediate in fact that the legislator created an offense for this conduct. Section 423.1 of the Criminal Code prohibits provoking ‘a state of fear’ in a judge to ‘impede him or her in the performance of his or her duties’. The state of fear required by section 423.1 does not necessarily need to result. The English Court of Appeal in R v Patrascu ( EWCA Crim 2417  4 All ER 1066 at -) observed that intimidation arises when a person intends to induce a state of fear in her or his target. In Canada, intimidation occurs when the ‘natural and probable’ consequences of a person’s actions lead to intimidation (R v Bergeron, paras. 19-22; vide. R v Armstrong).
The existence of a criminal offense for the conduct in this case demonstrates Justice Cory’s requirement for ‘the extreme immanence of those evil consequences’. The legislator has declared intimidation of judicial officials a danger, thus making it real for the purposes of the justice system. Intimidation is itself an offense punishable by up to fourteen years imprisonment–a substantial sentence to deter a substantial threat to the administration of justice. In this case, a judge was followed to his home, which (I am at pains to indicate) is conduct that presents an immediate danger to a reasonable person’s mind.
Justice Cory’s prescriptions are fulfilled, which is suggestive of the gravity of the offense created by Mr. Carpay’s conduct. Justice Joyal pointed up some of the stakes when he said that:
I am deeply concerned that this type of private investigative surveillance conduct could or would be used in any case involving any presiding judge in a high-profile adjudication.
His concern begs the question. Mr. Carpay has expressed genuine contrition, but his conduct may still be condemned and punished. Prosecutors and courts will ultimately have to decide whether such a sanction is worthwhile, and there is some meat on the bones of a common law charge of contempt of court.