United Nurses of Alberta v. Alberta (Attorney General)

United Nurses of Alberta v. Alberta (Attorney General)
Collection
Supreme Court Judgments
Date
1992-04-16
Report
[1992] 1 SCR 901
Case number
21870
Judges
Lamer, Antonio; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 21870
Decision Content
United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901
United Nurses of Alberta Appellant
v.
The Attorney General for Alberta Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec and
the Attorney General of British Columbia Interveners
Indexed as: United Nurses of Alberta v. Alberta (Attorney General)
File No.: 21870.
1991: December 3; 1992: April 16.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Criminal contempt of court ‑‑ Directives of provincial tribunal filed in superior court as orders of that court ‑‑ Union breached these orders and held in criminal contempt ‑‑ Whether union had the status to be found in criminal contempt ‑‑ Whether the offence of criminal contempt violated Charter ‑‑ Whether a directive of a provincial board filed in superior court gave rise to criminal contempt ‑‑ Labour Relations Act, R.S.A. 1980, c. L‑1.1, ss. 142(7) ‑‑ Canadian Charter of Rights and Freedoms, ss. 2(b), 7, 11(a), (g) ‑‑ Constitution Act, 1867, s. 96 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1)(b)(iii).
Constitutional law ‑‑ Charter of Rights ‑‑ Criminal law ‑‑ Criminal contempt of court ‑‑ Directives of provincial tribunal filed in superior court as orders of that court ‑‑ Union breached these orders and held in criminal contempt ‑‑ Whether union had the status to be found in criminal contempt ‑‑ Whether the offence of criminal contempt violated Charter ‑‑ Whether a directive of a provincial board filed in superior court gave rise to criminal contempt.
Constitutional law ‑‑ Charter of Rights ‑‑ Protections availing accused on criminal law trial ‑‑ Cross‑examination ‑‑ Right to cross‑examine on certain affidavits refused because accused unable to establish relevancy of cross‑examination in advance ‑‑ Whether the proceedings violated the Charter because the union was not permitted to cross‑examine on the affidavits.
The United Nurses of Alberta went on strike in January, 1988, contrary to directives forbidding the strike made under the Alberta Labour Relations Act and filed with the Court of Queen's Bench. The union was found to be in criminal contempt of the orders and fined $250,000 and $150,000 on successive motions. At trial, the trial judge refused the right to cross‑examine on certain affidavits, on the ground that the accused could not establish in advance that the cross‑examination would be relevant. The Alberta Court of Appeal dismissed its appeal and the union appealed to this Court. The issues were: (1) whether the union had the status to be found in criminal contempt; (2) whether the offence of criminal contempt violated the Canadian Charter of Rights and Freedoms; (3) whether a directive of a provincial board filed in the Court could give rise to criminal contempt; and (4) whether the proceedings violated the Charter because the union was not permitted to cross‑examine on the affidavits filed by the Crown.
Held (Lamer C.J. and Sopinka and Cory JJ. dissenting): The appeal should be dismissed.
Per La Forest, Gonthier, McLachlin and Iacobucci JJ.: The union may be held liable for a criminal offence (including criminal contempt) at common law. Further, unions are societies for the purposes of the Criminal Code. The provincial legislation defining societies clearly implies that there may be societies that are not incorporated under the Societies Act. Since a union, as a society, may be prosecuted under the Criminal Code, it should also be subject to prosecution for a criminal offence at common law. Unions therefore have the status to be found in criminal contempt.
Denial of liberty resulting from criminal contempt is effected in accordance with the principles of fundamental justice. The absence of codification does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed, pre‑determined law. Nor is the crime of criminal contempt so difficult to distinguish from civil contempt that it violates these principles. The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt. To establish criminal contempt the Crown must prove beyond a reasonable doubt that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). When the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the Court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. An accused can predict in advance whether his or her conduct will constitute a crime. Criminal contempt does not therefore violate ss. 7, 11(a) or (g).
The inability of the judge to inquire into the validity of the order on the contempt proceeding does not deprive him or her of a responsibility which should rest with a s. 96 court. The judge must determine whether the Crown has established beyond a reasonable doubt that the accused has breached the directive in a way that amounts to public defiance of the authority of the court and if so, must determine the sentence. A judge entertaining a motion for contempt of an order made by a judge of the court, as opposed to an inferior tribunal, would not have the power to go behind the order for its validity is not an issue on the contempt hearing. Section 142(7) cannot insulate an inferior tribunal's decision from scrutiny as an affected party can always challenge the directive of the board on jurisdictional grounds.
Section 142(7) does not enable the province to enact criminal law, which is a matter reserved to Parliament. Rather, the provision engages the criminal law, just as it may engage the civil contempt power, but it creates neither. Jurisprudence dealing with similar provisions in labour legislation in Canada has established that, where such Board orders are filed with the court, they have the same force and effect as orders of the court and disobedience can be punished by contempt and other similar proceedings.
The word "enforceable" is not restricted to the civil contempt power and can embrace the criminal contempt power. Words are to be given their plain ordinary meaning in a statute. No dictionary need to be called in aid to demonstrate that the words "enforceable as such" mean that an order of the Labour Relations Board is to be enforced by the court as if it were an order of the court. A directive of the Board can therefore give rise to criminal contempt.
The contempt proceeding is a criminal proceeding, and the full protections availing an accused on a criminal trial are available. This includes the right of cross‑examination. However, the right of cross‑examination is not unlimited. All cross‑examination is subject to the discretion of the judge to refuse irrelevant cross‑examination.
Even assuming that the trial judge, in limiting irrelevant questioning, did not have the discretion to exclude the cross‑examination altogether on the basis that the accused did not prove beforehand that the intended questions were relevant, no substantial wrong or miscarriage of justice occurred. Section 686(1)(b)(iii) of the Code accordingly applies. The verdict would have been the same even if full cross‑examination on these matters had been allowed.
Per Lamer C.J. and Cory J. (dissenting): Unions are subject to prosecution for the common law offence of criminal contempt. They fall within the scope of the term "societies" in the Criminal Code's definition of person and are liable for prosecution for a common law crime.
Both civil and criminal contempt may apply and attach to the same activity. Contempts tending to bring the administration of justice into scorn or to interfere with the due course of justice are criminal in their nature; contempt in disregarding orders or judgments of a civil court or in not doing something ordered to be done in a cause is not criminal in its nature. The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury. In the context of a labour dispute that would be conduct which threatens the rule of law. The mens rea is that the perpetrator wilfully or knowingly caused this harm or, alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act.
More than public conduct is necessary to transform a defiance of a court order into criminal contempt. To accept public conduct as the standard would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order. Moreover, making it the sole determining factor would expand the scope of criminal contempt powers far beyond the limits necessary to achieve their end.
The criminal contempt power should be used sparingly, with great restraint and only when required to protect the rule of law. A court's response must be proportionate to the harm caused. If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice.
The unrestrained use of criminal contempt proceedings in labour relations matters may again give rise to the perception that the courts are interfering with the collective bargaining process and intervening on behalf of management. If that perception persists, the courts will no longer be seen as impartial arbiters but as the instruments used by society for imposing crushing penalties on unions and union members.
The offence must not be so broadly defined that it threatens other values important to Canadian society. Charter rights, particularly freedom of expression, must be considered. Further, frequent use of criminal contempt could effectively restrict the union's ability to set out its position to the media, especially if publicity is chosen as the element which transforms civil into criminal contempt.
Alternative methods were available for enforcing compliance with the Board's order. The legislators designed a comprehensive and balanced scheme, which included a graduated system of fines, to deal with any infringement of orders. The use of criminal contempt proceedings and the imposition of crushing penalties were inappropriate except in circumstances of violence or threats of serious violence.
The conduct of the union leadership was not sufficient to transform the civil contempt into criminal contempt. The element of public injury was missing from the breach of the order. The nurses neither flaunted their disobedience of the order nor presented any threat of violence. The diffidence of their spokesperson in discussing the matter with press indicated that the union did not intend to bring the administration of justice into a disrepute or hold it up to scorn.
A criminal contempt hearing is held as a summary proceeding and the evidence against the defendant may be adduced in affidavit form. This procedure does not, of itself, violate the s. 7 Charter rights of the accused to a fair trial if the court conducts the hearing in accordance with the principles of fundamental justice. Fundamental justice includes the right to cross‑examination on the affidavit evidence adduced in the hearing.
The accused's right to cross‑examine on the affidavit evidence need not extend to irrelevant matters. Relevance, however, should generally not be determined in advance. The right to cross‑examination should exist without preconditions. The defence should have been permitted to call and cross‑examine those witnesses who had submitted sworn affidavits. It would be wrong in principle to apply the curative provisions of s. 686(1)(b)(iii) of the Code.
Per Sopinka J. (dissenting): Section 142(7) of the Alberta Labour Relations Act does not convert the directives of the Board into an order of a court of superior jurisdiction so as to attract the power of such a court to punish for criminal contempt.
The criminal law of contempt must be distinguished from civil contempt. Criminal contempt is to punish conduct calculated to bring the administration of justice by the courts into disrepute; civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court.
Before jurisdiction to punish for criminal contempt can be found, there must be an act of the court taken in the course of the administration of justice. The alleged contemnor cannot bring the administration of justice by the courts into disrepute if the order which has been disobeyed is not in fact an order of the court but that of an inferior tribunal.
Provincial legislation cannot provide that an order, which remains a directive of the Board, be the subject of criminal contempt proceedings. In as much as no such offence exists at common law a contrary interpretation would enable the province to enact criminal law which is a matter reserved to Parliament. The language of the section is capable of a meaning that conforms to the province's powers.
The words "enforceable" and "judgment" are the critical words in s. 147. "Enforcement" can have at least two meanings: a penalty for the purpose of punishment or a process for securing compliance. When used in the latter sense a fine or other penalty may still be employed to induce obedience and not for the purpose of punishment. The use of "enforcement" in s. 147 was intended in the latter sense to enable measures to be taken to secure compliance rather than in the criminal law sense emphasizing punishment.
Cases Cited
By McLachlin J.
Considered: Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270; Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360; referred to: International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; International Longshoremen's Association v. Maritime Employers' Association, [1979] 1 S.C.R. 120; Young v. C.N.R., [1931] 1 D.L.R. 645; R. v. United Fishermen & Allied Workers Union, [1968] 2 C.C.C. 257, leave to appeal denied [1968] S.C.R. 255; British Columbia Telephone Co. v. Telecommunications Workers Union (1981), 121 D.L.R. (3d) 326; New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers (1977), 16 N.B.R. (2d) 361; B.C.G.E.U. v. British Columbia (Attorney-General), [1988] 2 S.C.R. 214; R. v. Jobidon, [1991] 2 S.C.R. 714; Frey v. Fedoruk, [1950] S.C.R. 517; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; R. v. Parke, [1903] 2 K.B. 432; R. v. Davies, [1906] 1 K.B. 32; Labour Relations Board of Saskatchewan v. John East Ironworks, Ltd., [1949] A.C. 134; Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112.
By Cory J. (dissenting)
Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Scott v. Scott, [1913] A.C. 419; R. v. Kopyto (1987), 61 C.R. (3d) 209; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 32 C.C.C. (3d) 417; R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Garofoli, [1990] 2 S.C.R. 1421.
By Sopinka J. (dissenting)
B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Hill (1976), 73 D.L.R. (3d) 621; Poje v. Attorney General for British Columbia, [1953] S.C.R. 516; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270; Attorney General v. British Broadcasting Corp., [1980] 3 All E.R. 161; Parklane Private Hospital Ltd. v. B.C. Government Employees Union (1988), 88 C.L.L.C. para. 14,017; Toronto R. Co. v. City of Toronto (1920), 51 D.L.R. 69; Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360; Edmonton General Hospital v. United Nurses of Alberta, Local 79 (1990), 104 A.R. 394; Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff'd [1967] 1 O.R. 609; R. v. Green, [1992] 1 S.C.R. 614.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2(b), 7, 11(a), (g).
Constitution Act, 1867, s. 96.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 9, 686(1)(b)(iii).
Labour Relations Act, R.S.A. 1980, c. L‑1.1, ss. 142(5)(b), (7), (7.2), 153, 154(1), (2), 155(1), (2), 156(a), (b), 157.
Rules of Court (Alberta), Rule 704(1).
Societies Act, R.S.A. 1980, c. S-18, s. 1(c).
Authors Cited
Black's Law Dictionary, 6th ed. St. Paul, Minn.: West, 1990.
Canada. Law Reform Commission. Report 17. Contempt of Court. Ottawa: Minister of Supply and Services Canada, 1982.
Maxwell, Sir Peter Benson. Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.
APPEAL from a judgment of the Alberta Court of Appeal (1990), 73 Alta. L.R. (2d) 152, 66 D.L.R. (4th) 385, 54 C.C.C. (3d) 1, 90 CLLC 14,022, dismissing an appeal from convictions of criminal contempt by O'Byrne J. and by Sinclair J. Appeal dismissed, Lamer C.J. and Sopinka and Cory JJ. dissenting.
Alexander D. Pringle and Sheila J. Greckol, for the appellant.
Paul C. Bourque and Robert C. Maybank, for the respondent.
I. G. Whitehall, Q.C., and L. M. Huculak, for the intervener the Attorney General of Canada.
Jean‑François Jobin, for the intervener the Attorney General of Quebec.
Deborah K. Lovett, for the intervener the Attorney General of British Columbia.
//Cory J.//
The reasons of Lamer C.J. and Cory J. were delivered by
Cory J. (dissenting) -- The United Nurses of Alberta, a trade union, was found on two occasions to have been guilty of criminal contempt as a result of breaches of orders of the Labour Relations Board of Alberta. The union was fined a total of $400,000. This appeal raises issues as to how criminal contempt should be defined and its relationship to civil contempt.
I have read the reasons of my colleagues Justices McLachlin and Sopinka. I find that I must with the greatest respect disagree with the reasons of McLachlin J. Although I am in substantial agreement with the reasons of Sopinka J., I have some reservation with respect to his conclusion that, if the breach of orders made pursuant to the Alberta Labour Relations Act, R.S.A. 1980, c. L-1.1, could lead to invoking criminal contempt proceedings, it would trench on the federal criminal law power. Nonetheless, I too would allow the appeal but on a somewhat broader basis.
The Law of Criminal Contempt
(a) Are Unions Subject to Criminal Contempt?
There can be no doubt that unions have the legal status to sue and to be sued in civil matters. They can and do present and defend cases before the courts. They make full use of the courts and the remedies they provide. If unions avail themselves of court facilities, they must be subject to the court's rules and restraints placed on the conduct of all litigants. It follows that they are subject to prosecution for the common law offence of criminal contempt. There can be no question that unions fall within the scope of the term "societies" in the Criminal Code's definition of person and they must be equally liable for prosecution for a common law crime.
(b) Definition of Criminal Contempt
What is criminal contempt? The common law recognizes two separate species of contempt. That which is civil and that which is criminal in nature. Contempt of court may arise in many different ways and may take many different forms. This case of course deals with the disobedience of a judicial order. The United Nurses of Alberta violated a directive of an administrative board (the Labour Relations Board of Alberta) which had been filed with the court. For the purpose of this case it can be taken that the union defied an order of the court. There can be no doubt that such defiance brings a party into civil contempt. However, both civil and criminal contempt may apply and attach to the same activity. In this case it must be determined what element transforms civil into criminal contempt.
The leading Canadian case on this issue is Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516. There, Kellock J. examined the English jurisprudence which considered the distinction between the two types of contempt. He cited Scott v. Scott, [1913] A.C. 419 (H.L.), as authority for the proposition that mere disobedience of a Court Order is not necessarily criminal. He noted at p. 520 that ". . . it may be so, depending upon the nature and quality of the conduct involved". Kellock J., at p. 522, adopted Oswald's treatise Contempt of Court, 3rd ed., at p. 36, as setting out the critical factor which transforms disobedience of the court order into criminal contempt, particularly the following paragraph:
And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt in disregarding orders or judgments of a Civil Court or in not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where contempt involved a public injury or offence, it is criminal in its nature, and the proper remedy is committal--but where the contempt involves a private injury only it is not criminal in its nature.
The distinction drawn by Oswald makes eminently good sense. The purpose of the criminal law is to protect society whereas the civil law regulates and facilitates private relationships. The sole reason for the existence of a separate category of criminal contempt is to answer the need to discourage and to punish those acts which occasion serious injuries to the public interest. Where the injury caused by disobedience to an order is private in nature, the civil contempt powers suffice. In order to determine whether by their conduct individuals are subject to criminal contempt, the court should ask: who has been injured and what are the extent of the injuries caused by the contumacious conduct?
In Poje the contempt proceedings arose from actions taken by union members during a strike involving the International Wood Workers of America. The strikers were striving to prevent the loading of lumber at the docks. To that end they formed picket lines at the dock entrance to discourage the longshoremen from loading a ship with the lumber. An ex parte injunction against the union had been obtained restraining it from obstructing access to the ship. Nonetheless, large numbers of men persisted in blocking the dock entrance. At the contempt hearings the defendants argued that their purpose was simply to communicate information, not to obstruct access to the docks. Kellock J. rejected this rather incredible explanation. He found, at p. 526, that:
The congregation of the large numbers of men at the times that the longshoremen were to arrive had no other object or effect than to present force.
It can be seen that Kellock J. was convinced, on the basis of the facts presented, that the picketers presented a very real threat of violence. It was the imminent threat of violent action undertaken by a large number of men in very public defiance of a court order which transformed the breach of the injunction into actionable criminal contempt. He concluded, at p. 527, that:
The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. It is to be observed that the nuisance created by the incidents referred to brought the appellants within the scope of s. 501 of the Criminal Code . . . . Over and above these offences, however, the character of the conduct involved a public injury amounting to criminal contempt.
Of paramount concern to Kellock J. in reaching this conclusion was the context in which the impugned conduct took place and the public character of the injury. These were the factors he took into account in classifying the activity as criminal contempt.
The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury. In the context of a labour dispute that would be conduct which threatens the rule of law. These would include acts of violence or threats of violence by large groups, or activities which could lead to a serious breakdown of the social order. The requisite mens rea of the offence is that the perpetrator wilfully or knowingly caused this harm, or alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act. See R. v. Kopyto (1987), 61 C.R. (3d) 209 (Ont. C.A.), at p. 287.
(c) The Effect of Publicity
My colleague McLachlin J. concludes that in essence all that is necessary to transform a defiance of a court order into criminal contempt is that the conduct occur in public. With respect, I cannot agree. To accept such a standard would be to ignore the basis of the distinction between criminal and civil contempt. It would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order. I would certainly agree that the intentional defiance of a court order, which takes place in full public view, may well be a significant factor in leading a court to conclude that there had been an injury to the public interest. However, to make it the sole determining factor expands the scope of criminal contempt powers far beyond the limits necessary to achieve their end. Criminal contempt provides the court with an awesome power which may have devastating consequences. It should be exercised with the greatest restraint and caution.
The Law Reform Commission of Canada examined the offence of criminal contempt in a 1982 report: Contempt of Court, Report 17. Although the Commission acknowledged that criminal contempt had an important role to play in sustaining the administration of justice it nevertheless advocated strict limits on its exercise. The Commission recommended that the use of the criminal contempt power should be confined to those rare situations in which it was essential to protect our system of justice. It noted at pp. 3-4:
Penal sanctions should be reserved for very serious cases and used with moderation in order to reaffirm fundamental values solemnly. Criminal law must thus set tolerance thresholds. In matters of contempt, these thresholds must be established on the basis of the values to be protected, and must take into account the fact that civil contempt is often sufficient to reaffirm the values contravened, or to restore peace, efficacy and impartiality to a situation jeopardized by the act of an individual.
I agree that criminal contempt power should be used sparingly, with great restraint and only in those circumstances when it is required to protect the rule of law. The response of the court to a party in defiance of its order must be proportionate to the harm caused. If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice.
If civil contempt is to be transformed into criminal contempt solely because it has occurred in a public forum, then it will have a very severe impact on all labour relations. Labour disputes culminating in strikes and picketing must necessarily take place in the public eye. Both unions and management rely on publicity to raise public awareness of the issues involved in the dispute. Both sides will seek public support. Court orders pertaining to a labour dispute will attract more attention to it. A defiance of such a court order is bound to attract still further public attention. In the usual course of events the breach of an order of a labour relations board during the course of union organizing, contract negotiations or a strike can, and should be, subject to monetary and legal consequences. The consequences should as a general rule be those provided by the applicable labour relations act or those which would result from civil contempt. It should rarely attract the penalties flowing from criminal contempt.
Historically bitter conflicts between employer and employee tore at the very fabric of society. It was evident that means were required to encourage negotiations and the resolution of disputes between labour and management. In the early days of labour disputes, the courts were frequently and vehemently criticized for the role that they played or appeared to play. The courts were seen to be pro-management. Whether that view was completely justified or not, it was one which was frequently expressed. It led inevitably to some diminution of the reputation of the courts as impartial arbiters of disputes, whether those disputes were between the state and the subject or between subject and subject.
Now the resolution of labour disputes is governed by legislative codes that have evolved over the past century. These codes have frequently been refined over the last 40 years. The labour relation boards established by this legislation operate to resolve conflicts and maintain the delicate balance between labour and management. Board members are experts in the field and are sensitive to the problems that are unique to it. It is usually the Boards that devise the solutions to conflicts. It is the Boards operating under their statutes that are best equipped to punish for breach of their orders. Thus the various Labour Relations Acts provide the penalties for breach which the Legislature or Parliament deemed appropriate in the context of the complex field of labour relations. It is these punishments which should as a general rule be applied by the courts.
The unrestrained use of criminal contempt proceedings in labour relations matters will once again give rise to the perception that the courts are interfering with the collective bargaining process and intervening on behalf of management. If that perception persists, the courts will no longer be seen as impartial arbiters but as the instruments used by society for imposing crushing penalties on unions and union members. In her dissenting judgment in the Alberta Court of Appeal (1990), 73 Alta. L.R. (2d) 152, Veit J.A. was aware of this danger and rightly recognized that it would be "unseemly" for the courts to utilize criminal contempt in these situations.
Further, in considering the nature of criminal contempt, Courts should have regard to the values enshrined in the Canadian Charter of Rights and Freedoms and in particular, the protection of freedom of expression. It is true that the offence exists to fill the perceived need to protect the public from harm. However, the offence must not be so broadly defined that it threatens other values important to Canadian society. A strike is the ultimate weapon of labour. The dispute may often involve more than the wages of labour. Matters such as working conditions or pensions may be the basic issues. Often it is only by means of a strike that union members can publicize and emphasize the merits of their position as they see them with regard to the issues in dispute. It is essential that both the labour and management side be able to put forward their position so the public fully understands the issues and can determine which side is worthy of public support. Historically, to put forward their position, management has had far greater access to the media than have the unions. At times unions had no alternative but to take strike action and by means of peaceful picketing put forward their position to the public. This is often the situation today.
This Court has recognized that the dissemination of information was an important aspect of strikes. See RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. In that case McIntyre J. noted that peaceful picketing falls within scope of freedom of expression protected by s. 2(b) of the Charter. At page 588 he wrote:
There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line.
It must be remembered that members of the public have a right to know and understand the issues involved in a strike. A major strike is bound to have a significant, and usually aggravating, effect on members of the public. It is the public which needs information about the circumstances of the dispute. It is primarily through the media coverage that the public will be able to learn of the issues and of the positions taken by management and labour. Frequent use of criminal contempt could well have the effect of restricting the union's ability to set out its position to the media. If publicity is chosen as the element which transforms civil into criminal contempt, then it will often deny the public as "listeners" access to this important information.
(d) Alternate Remedies
It is clear that alternate methods were available for enforcing the compliance of the provisions of the Labour Relations Board order. First the defiance of the court order automatically invokes liability for civil contempt. Rule 704(1) of the Alberta Rules of Court provides:
704. (1) Every person in civil contempt is liable to any one or more of the following:
(a) imprisonment until he has purged his contempt;
(b) imprisonment for one year;
(c) a fine of $1,000 and in default of payment thereof, to imprisonment for one year.
Although the fines are limited, to $1000 a day, nevertheless that fine on a daily basis imposed upon an individual with a prospective jail term if it is not paid, must have a deterrent effect.
More importantly, the Labour Relations Act provides a code for the labour management relations and the resolution of disputes in that field. Particularly it provides penalties for a violation of Board orders in these terms:
153 Any employer, employee or other person who
(a) contravenes or fails to comply with an order, decision, notice, declaration or directive of the Board,
. . .
is guilty of an offence.
154(1) Any employer, employers' organization or employer on whose behalf an employers' organization bargains collectively who commences or causes a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the lockout continues.
(2) Any person not referred to in subsection (1) who commences, causes or consents to a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.
155(1) Any trade union that causes a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the strike continues.
(2) Any officer or representative of a trade union who strikes or causes or consents to a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.
. . .
156 Subject to section 154 and 155, any person, employee, employer, employers' organization or trade union who contravenes or fails to comply with any provision of this Act or of any decision, order, directive, declaration or ruling made by the Board under this Act, is guilty of an offence and liable
(a) in the case of a corporation, employers' organization or trade union, to a fine not exceeding $10 000, or
(b) in the case of an individual, to a fine not exceeding $5000.
157 No prosecution for an offence referred to in this Act shall be commenced without the consent in writing of the Minister.
These provisions clearly indicate that the legislators turned their minds to the issue of enforcement of board directives. They designed a comprehensive and balanced scheme to deal with any infringement of orders. Ceilings are fixed on the amount of the fines that may be levied by these sections. This suggests that the imposition of huge fines in labour disputes such as the $400,000 fine in the case at bar is contrary to the intent of the Labour Relations Act. The use of criminal contempt proceedings and the imposition of such crushing penalties are inappropriate except in circumstances of violence or threats of serious violence. The concerns voiced by the respondent that, without the criminal contempt power, the courts and labour boards will have difficulty enforcing their orders and that respect for the rule of law will be threatened are, in my view, groundless in light of the effective alternate remedies that were available.
Application to the Case at Bar
When the United Nurses of Alberta went on strike in January, 1988 the union was without doubt in defiance of a directive of the Labour Relations Board. As a result it could very properly have had imposed upon it the penalties provided by either the Labour Relations Act or those provided for civil contempt but no more than that. As a strike of hospital employees it was inevitable that it would receive a great deal of media coverage. On the first day of the strike Margaret Ethier, the president of the union, gave a news conference in response to requests from the media for a public statement. She used the press conference to publicize the grievances of the union. She took the opportunity to inform Albertans that emergency services would not be affected by the nurses' action. She did not volunteer the fact that the union was in defiance of the Board's order which had already been filed with the court. Rather, she addressed that issue reluctantly and only in response to direct questions from reporters. It is of importance that the nature of the interview be set out:
Ethier Well, I think perhaps if money is the measure by which we're we, value by which we are measured in the society, that too--but I think there's more to it than that--a matter of respect in the way that we are treated in our working conditions and also I suspect with these latest laws and threats that they have been doing to our members--and not just in the labour relation boards hearings and