Morasse v. Nadeau‑Dubois

Morasse v. Nadeau‑Dubois
Collection
Supreme Court Judgments
Date
2016-10-27
Neutral citation
2016 SCC 44
Report
[2016] 2 SCR 232
Case number
36351
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Quebec
Subjects
Civil procedure
Notes
SCC Case Information: 36351
Decision Content
SUPREME COURT OF CANADA
Citation: Morasse v. Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232
Appeal heard: April 22, 2016
Judgment rendered: October 27, 2016
Docket: 36351
Between:
Jean-François Morasse
Appellant
and
Gabriel Nadeau-Dubois
Respondent
- and -
Canadian Civil Liberties Association,
Alberta Public Interest Research Group and
Amnistie internationale, Section Canada francophone
Interveners
Official English Translation: Reasons of Wagner J.
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Joint Reasons for Judgment:
(paras. 1 to 45)
Concurring Reasons:
(paras. 46 to 52)
Dissenting Reasons:
(paras. 53 to 133)
Abella and Gascon JJ. (McLachlin C.J. and Cromwell and Karakatsanis JJ. concurring)
Moldaver J.
Wagner J. (Côté and Brown JJ. concurring)
Morasse v. Nadeau‑Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232
Jean‑François Morasse Appellant
v.
Gabriel Nadeau‑Dubois Respondent
and
Canadian Civil Liberties Association,
Alberta Public Interest Research Group and
Amnistie internationale, Section Canada francophone Interveners
Indexed as: Morasse v. Nadeau‑Dubois
2016 SCC 44
File No.: 36351.
2016: April 22; 2016: October 27.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for quebec
Civil procedure — Contempt of court — Required knowledge and intent — Statutory provision creating offence of contempt of court for anyone who disobeys any process or order of court or judge, or acts in such way as to interfere with orderly administration of justice or to impair authority or dignity of court — Student organization holding protests and forming picket lines at university — Student obtaining provisional interlocutory injunction mandating free access to university facilities and classes — Spokesperson of student organization commenting on injunctions and picket lines in interview — Whether spokesperson guilty of contempt — Code of Civil Procedure, CQLR, c. C‑25, art. 50 para. 1.
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 (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’ general ability 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.
Cases Cited
By Abella and Gascon JJ.
Referred to: Morasse v. Université Laval, 2012 QCCS 1565; Morasse v. Université Laval, 2012 QCCS 1859; Lavoie v. Collège de Rosemont, 2012 QCCS 1685; Goudreault v. Collège de Rosemont, 2012 QCCS 2017; Caron v. Paul Albert Chevrolet Buick Cadillac inc., 2016 QCCA 564; Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79; Centre commercial Les Rivières ltée v. Jean bleu inc., 2012 QCCA 1663; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; Guay v. Lebel, 2016 QCCA 1555; Droit de la famille — 122875, 2012 QCCA 1855, 29 R.F.L. (7th) 137; Javanmardi v. Collège des médecins du Québec, 2013 QCCA 306, [2013] R.J.Q. 328; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Constructions Louisbourg ltée v. Société Radio‑Canada, 2014 QCCA 155; Trudel v. Foucher, 2015 QCCA 691; Chamandy v. Chartier, 2015 QCCA 1142; Montréal (Ville de) v. Syndicat des cols bleus regroupés de Montréal (SCFP), section locale 301, 2006 QCCS 5273; Gougoux v. Richard, 2005 CanLII 37770; Estrada v. Young, 2005 QCCA 493; Zhang v. Chau (2003), 229 D.L.R. (4th) 298; R. v. Kopyto (1987), 62 O.R. (2d) 449; Attorney‑General v. Times Newspapers Ltd., [1973] 3 All E.R. 54; Boucher v. The King, [1951] S.C.R. 265; Re Ouellet (No. 1) (1976), 28 C.C.C. (2d) 338; Prud’homme v. Prud’homme, 1997 CanLII 8253; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156.
By Moldaver J.
Referred to: Morasse v. Université Laval, 2012 QCCS 1859; Newcastle Recycling Ltd. v. Clarington (Municipality), 2010 ONCA 314, 261 O.A.C. 373; R. v. Vaillancourt (1995), 105 C.C.C. (3d) 552; R. v. Tran, 2016 ONCA 48; Wexler v. The King, [1939] S.C.R. 350.
By Wagner J. (dissenting)
Morasse v. Université Laval, 2012 QCCS 1565; Morasse v. Université Laval, 2012 QCCS 1859; Zhang v. Chau (2003), 229 D.L.R. (4th) 298, leave to appeal refused, [2003] 3 S.C.R. v; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388; Centre commercial Les Rivières ltée v. Jean bleu inc., 2012 QCCA 1663; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; R. v. Bridges (1989), 61 D.L.R. (4th) 154, aff’d (1990), 54 B.C.L.R. (2d) 273; MacMillan Bloedel Ltd. v. Simpson (1994), 92 B.C.L.R. (2d) 1; R. v. Krawczyk, 2009 BCCA 250, 275 B.C.A.C. 6, leave to appeal refused, [2010] 1 S.C.R. xi; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585, aff’d (1975), 11 O.R. (2d) 167; Constructions Louisbourg ltée v. Société Radio‑Canada, 2014 QCCA 155; Echostar Satellite Corp. v. Lis, 2004 CanLII 2156; Procom Immobilier Inc. v. Commission des valeurs mobilières du Québec, [1992] R.D.J. 561; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Re Awada (1970), 13 C.R.N.S. 127; Droit de la famille — 122875, 2012 QCCA 1855, 29 R.F.L. (7th) 137; Iron Ore Co. of Canada v. United Steel Workers of America, Local 5795 (1979), 20 Nfld. & P.E.I.R. 27, leave to appeal refused, [1979] 1 S.C.R. viii; Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79; College of Optometrists (Ont.) v. SHS Optical Ltd., 2008 ONCA 685, 241 O.A.C. 225; Estrada v. Young, 2005 QCCA 493; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001; Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff’d [1967] 2 C.C.C. 196, leave to appeal refused, [1966] S.C.R. vii; Avery v. Andrews (1882), 51 L.J. Ch. 414; Ex parte Langley (1879), 13 Ch. D. 110; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Attorney‑General of Quebec v. Hebert, [1967] 2 C.C.C. 111; Attorney‑General v. Times Newspapers Ltd., [1973] 3 All E.R. 54; R. v. Kopyto (1987), 62 O.R. (2d) 449; Attorney‑General of Quebec v. Charbonneau (1972), 13 C.C.C. (2d) 226; Boon‑Strachan Coal Co. v. Campbell, [1981] C.S. 923; Re Ouellet (No. 1) (1976), 28 C.C.C. (2d) 338, varied on other grounds, [1976] C.A. 788; Daigle v. Corporation municipale de la Paroisse de St‑Gabriel de Brandon, [1991] R.D.J. 249; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Canadian Transport Co. v. Alsbury (1952), 6 W.W.R. (N.S.) 473, aff’d [1953] 1 D.L.R. 385, aff’d [1953] 1 S.C.R. 516; R. v. Gardiner, [1982] 2 S.C.R. 368; Westfair Foods Ltd. v. Naherny (1990), 63 Man. R. (2d) 238; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Agence nationale d’encadrement du secteur financier v. Coopérative de producteurs de bois précieux Québec Forestales, 2005 CanLII 11614; Peter Kiewit Sons Co. v. Perry, 2007 BCSC 305.
Statutes and Regulations Cited
Act to enable students to receive instruction from the postsecondary institutions they attend, S.Q. 2012, c. 12, ss. 10, 11, 13, 14, 32.
By‑law amending the By‑law concerning the prevention of breaches of the peace, public order and safety, and the use of public property, May 18, 2012, City of Montréal, By‑law 12‑024, art. 1.
By‑law concerning the prevention of breaches of the peace, public order and safety, and the use of public property, R.B.C.M., c. P‑6, art. 2.1 [ad. 2012, By‑law 12‑024, art. 1].
Canadian Charter of Rights and Freedoms , preamble, s. 2 (b).
Charter of human rights and freedoms, CQLR, c. C‑12, s. 3.
Code of Civil Procedure, CQLR, c. C‑25 [repl. 2014, c. 1, s. 833], arts. 1, 50, 51 para. 1, 53, 53.1, 761.
Code of Civil Procedure, CQLR, c. C‑25.01, arts. 58, 62.
Authors Cited
Borrie & Lowe: The Law of Contempt, 4th ed., by Ian Cram, gen. ed. London: LexisNexis, 2010.
Ferland, Denis. “La Cour suprême et l’outrage au tribunal en matière d’injonction: Baxter Travenol Laboratories of Canada Ltd. c. Cutter (Canada) Ltd., [1983] 2 R.C.S. 388; [1983] R.D.J. 481 (C.S.C.)” (1985), 45 R. du B. 462.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 5e éd. Montréal: Yvon Blais, 2015.
Gendreau, Paul‑Arthur, et autres. L’injonction. Cowansville, Qué.: Yvon Blais, 1998.
Gervais, Céline. L’injonction, 2e éd. Cowansville, Qué.: Yvon Blais, 2005.
Popovici, Adrian. L’outrage au tribunal. Montréal: Thémis, 1977.
Sharpe, Robert J. Injunctions and Specific Performance, loose‑leaf ed. Toronto: Canada Law Book, 2015 (updated November 2015, release 24).
APPEAL from a judgment of the Quebec Court of Appeal (Bich, Giroux and Dufresne JJ.A.), 2015 QCCA 78, [2015] AZ‑51142714, [2015] J.Q. no 158 (QL), 2015 CarswellQue 284 (WL Can.), setting aside a conviction and sentence for contempt of court by Jacques J., 2012 QCCS 5438, [2012] R.J.Q. 2174, [2012] AZ‑50907942, [2012] J.Q. no 11705 (QL), 2012 CarswellQue 11446 (WL Can.), and 2012 QCCS 6101, [2012] R.J.Q. 2279, [2012] AZ‑50918771, [2012] J.Q. no 14670 (QL), 2012 CarswellQue 12900 (WL Can.), and entering an acquittal. Appeal dismissed, Wagner, Côté and Brown JJ. dissenting.
Maxime Roy, Vincent Rochette and Ariane Gagnon‑Rocque, for the appellant.
Giuseppe Sciortino, Sibel Ataogul and Félix‑Antoine Michaud, for the respondent.
Written submissions only by Julius H. Grey, for the intervener the Canadian Civil Liberties Association.
Ranjan K. Agarwal, Faiz M. Lalani and Avnish Nanda, for the intervener the Alberta Public Interest Research Group.
François Larocque and Maxine Vincelette, for the intervener Amnistie internationale, Section Canada francophone.
The judgment of McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by
[1] Abella and Gascon JJ. — In the spring of 2012, massive and sustained student protests took place in the province of Quebec over the issue of proposed increases in university tuition fees. The increases were announced as part of the budget introduced by the provincial government. Several student organizations which were opposed to the increases organized responsive protests.
[2] The protests paralyzed several post-secondary institutions. Classes at several institutions were cancelled. Student organizations held votes declaring themselves to be “on strike”. Picket lines were formed at several universities and CEGEPs.[1] Students and teachers were prevented from entering the buildings in which classes were to be held. As a result, several injunctions were sought to restrict these blockages and help ensure the continuation of the school year.
[3] The underlying events in the spring of 2012 were deeply disruptive, and caused massive dislocation and frustration for many. That, however, is not the subject of this appeal. We must be wary of addressing issues and evidence that were not raised or scrutinized at trial. What we are required to determine 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. In our view, it did not.
[4] At the time, Gabriel Nadeau-Dubois was the spokesperson for the Coalition large de l’Association pour une solidarité syndicale étudiante (CLASSE). As one of the most active student organizations in the province, the CLASSE organized protests and picket lines in various post-secondary institutions.
[5] At the height of the protests, Jean-François Morasse was a student in his final year at Université Laval’s Faculty of Planning, Architecture, Arts and Design, completing a certificate in visual arts (arts plastiques). The Association des étudiants en arts plastiques de l’Université Laval (ASÉTAP), the organization representing students in that program, held a strike vote and organized protests. On February 29, 2012, picket lines were erected to block the entrance to the building where Mr. Morasse’s classes were held.
[6] In the context of civil proceedings that he instituted against Université Laval, ASÉTAP and another student organization, Mr. Morasse obtained a provisional interlocutory injunction on April 12, 2012 for a 10-day period.[2] The injunction mandated free access to the facilities in which classes for the visual arts program were held. It also ordered all persons who were then boycotting classes to refrain from obstructing or otherwise blocking access to classes by way of intimidation or through other actions likely to have this effect.
[7] On April 26, 2012, Mr. Morasse brought an application to renew the injunction. On May 2, 2012, Émond J. (as he then was) renewed the injunction through a safeguard order valid until September 14, 2012.[3] His order reaffirmed the prohibition to obstruct or otherwise prevent access to classes, but made no specific reference to picketing generally:
[translation]
ORDERS Université Laval, the Association des étudiants en arts plastiques [ASÉTAP] and any person informed of this order to give free access to the classrooms of Université Laval in which classes leading to the visual arts certificate are conducted so that those classes may be conducted in accordance with the schedule established for the winter 2012 session;
ORDERS all students and other persons currently boycotting classes to refrain from obstructing or impeding access to classes by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question;
CONFERS on Université Laval the responsibility for service, without delay, of this order in the manner provided for in the Code of Civil Procedure and for making the order known to any person it deems advisable so that it may, as the owner and authority responsible for the premises, ensure the proper execution of this order;
DECLARES that this order will remain in effect until September 14, 2012; [Underlining added; paras. 59-62 (CanLII).]
[8] Eleven days later, on May 13, 2012, Mr. Nadeau-Dubois was interviewed by RDI, CBC’s French television news network,[4] after one CEGEP, the Collège de Rosemont, resumed its regular schedule of classes upon being ordered to do so by the Superior Court.[5] Appearing with him was Léo Bureau-Blouin, head of the Fédération étudiante collégiale du Québec, a coalition representing student unions in Quebec’s CEGEPs and private colleges. The interview was broadcast live throughout the province. The relevant portions are as follows:
[translation]
[RDI Interviewer]: Let’s talk in concrete terms about what’s happening on the ground, Léo Bureau-Blouin, so tomorrow, we see that at the Rosemont CEGEP, students are being encouraged to return to class. You, for your part, are you still urging strikers to set up picket lines to prevent students from entering . . . Lionel‑Groulx as well . . . there are injunctions all over the place in some CEGEPs . . . ?
[Léo Bureau-Blouin]: There’re no demonstrations organized directly by the federation, but every time there are forced returns to class like this, of course it leads to picket lines that go up right in front of the college. We have of course urged students, for example, to comply with the injunctions, you know, when there are specific court orders, not to block the path of certain students, I think it’s important to comply with them, but it’s sure that the decision made by Rosemont College, I think it’s a dangerous decision that could potentially cause tension because, first of all, the vote by the students was a democratic one after all, so this creates some uneasiness for teachers in actually crossing the picket lines there or going to give classes despite the vote, but it also causes tension above all because there’re students who want to go to class and there’re others who don’t want classes to resume, and this leads to heated exchanges and potentially to fights, whereas at this point we’re in fact trying to calm the dispute, and it’s working, as the situation’s been a bit calmer in Montréal the last few days.
[RDI Interviewer]: As for CLASSE, Gabriel Nadeau-Dubois, what’s the reaction to the return to class tomorrow, are you, well, are you still encouraging picketing to prevent, um?
[Gabriel Nadeau-Dubois]: What’s clear is that such decisions, such attempts to force students back to class, they never work because the students who’ve been on strike for 13 weeks are standing together, they respect, and I’m speaking generally here, respect the democratic will expressed through the strike vote, and I think it’s perfectly legitimate for students to take action to uphold the democratic choice that was made to go on strike. It’s quite unfortunate that there’s really a minority of students who’re using the courts to circumvent the collective decision that was made. So we find it perfectly legitimate for people to do what they have to do to enforce the strike vote, and if that takes picket lines, we think it’s a perfectly legitimate way to do it.
(R.F., at para. 62)
[9] On May 15, 2012, Mr. Morasse, acting under art. 53 of the Code of Civil Procedure,[6] filed a motion for contempt against Mr. Nadeau-Dubois for his comments in the interview. In this motion filed in his pending proceedings against Université Laval and ASÉTAP, Mr. Morasse claimed that Mr. Nadeau-Dubois’ comments violated the following paragraph in Émond J.’s May 2nd order:
[translation] ORDERS all students and other persons currently boycotting classes to refrain from obstructing or impeding access to classes by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question; [para. 60]
[10] The motion alleged only a violation of art. 761 of the Code, which stated:
761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000, with or without imprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may be repeatedly inflicted until the contravening party obeys the injunction.
The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason to do so.
[11] On May 17, 2012, Jacques J. ordered Mr. Nadeau-Dubois to appear before the court on May 29, 2012, to respond to the allegations and evidence raised in Mr. Morasse’s motion for contempt.[7] In this “special rule” order that he issued pursuant to art. 53 of the Code, Jacques J. described the allegations made against Mr. Nadeau-Dubois as follows: [translation] “. . . did, on the air on the RDI television network, publicly incite people to contravene the order [the order of Émond J., that is] by preventing students, including the plaintiff [Mr. Morasse], from having access to their classes” (para. 3 (CanLII)).
[12] On his own initiative, Jacques J. also referred to the first paragraph of art. 50 of the Code in the reasons for the order (only the first paragraph is relevant to this appeal):
50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who 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 special rule did not indicate, however, which part of art. 50 para. 1 was at issue. Nor did it refer to any other injunction besides the May 2nd order of Émond J.
[13] The minutes and the transcript of the May 29, 2012 hearing at which the evidence against Mr. Nadeau-Dubois was disclosed, made it clear that the parties agreed that Mr. Nadeau-Dubois was only being charged with having actually violated para. 60 of the specific May 2, 2012 injunction by committing an action susceptible of preventing or of negatively affecting access to the classes.
[14] On the merits of the contempt motion, Jacques J. concluded that because Émond J.’s order had not been served on Mr. Nadeau-Dubois, he could not be found guilty of contempt of court under art. 761. However, he found him guilty under that part of art. 50 para. 1, which creates the offence of contempt for acts that interfere with the authority or dignity of the court. Jacques J. concluded that Mr. Nadeau-Dubois’ knowledge of the injunction could be inferred from the fact that ASÉTAP, which was served with the order, was a member of CLASSE at the time of its issuance. Since Mr. Nadeau-Dubois was CLASSE’s spokesperson at the time, his knowledge could be inferred. Knowledge could also be inferred from his words in the interview, and from his assumed knowledge of other unspecified injunctions that had been issued by other courts around the same time. His statements reflected an intention to obstruct justice or undermine judicial authority. And by encouraging the contravention of injunctions generally, his words had the effect of encouraging the contravention of Émond J.’s injunction.[8]
[15] Mr. Nadeau-Dubois was sentenced to 120 hours of community service, to be completed within six months under the supervision of a probation officer.[9]
[16] The Quebec Court of Appeal unanimously allowed the appeal.[10] Dufresne J.A., writing for the court, concluded that the statements made during the television interview fell short of establishing that Mr. Nadeau-Dubois knew of the existence and content of Émond J.’s order. The question to which Mr. Nadeau-Dubois was responding in the interview dealt with an injunction granted against a CEGEP, not with the order issued on May 2nd by Émond J. against Université Laval. Nor was it appropriate to infer knowledge of that specific order from Mr. Nadeau-Dubois’ general reference to [translation] “such attempts to force students back to class”.
[17] The Court of Appeal agreed with Jacques J. that art. 761 did not apply because Mr. Nadeau-Dubois was neither named nor designated in the injunction. The only issue, therefore, was whether Mr. Nadeau-Dubois was guilty under art. 50 para. 1. The court concluded that the mens rea was not met because it was not proven beyond a reasonable doubt that Mr. Nadeau-Dubois knew of the May 2nd injunction. In those circumstances, it would be improper to impute an intention to Mr. Nadeau-Dubois to encourage others to breach an order of which he had no knowledge. As for the actus reus, the court found that in any event, the words spoken were ambiguous, and that it could not therefore conclude beyond a reasonable doubt that these words incited or encouraged persons to violate the injunction. The conviction and sentence were consequently set aside and an acquittal entered.
[18] We agree with the conclusions of the Court of Appeal. Jacques J. made both legal and palpable and overriding errors that justified the Court of Appeal’s intervention. For the following reasons, we would dismiss the appeal.
Analysis
[19] In Quebec, the power to find an individual guilty of contempt of court is an exceptional one. Courts have consistently discouraged its routine use to obtain compliance with court orders. It is, in short, an enforcement power of last resort: Caron v. Paul Albert Chevrolet Buick Cadillac inc., 2016 QCCA 564, at paras. 25-26 (CanLII), citing Carey v. Laiken, [2015] 2 S.C.R. 79, at para. 36; Centre commercial Les Rivières ltée v. Jean bleu inc., 2012 QCCA 1663, at paras. 7-8 (CanLII).
[20] Contempt of court is the only civil proceeding that may result in a penalty of imprisonment in Quebec: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at p. 1076; art. 1 of the Code of Civil Procedure; art. 62 of the new Code of Civil Procedure, CQLR, c. C-25.01, which came into force on January 1, 2016. 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 for which he or she is being charged must be given to the accused, and the elements required for a conviction must be proven beyond a reasonable doubt: Guay v. Lebel, 2016 QCCA 1555, at para. 8 (CanLII); Droit de la famille — 122875 (2012), 29 R.F.L. (7th) 137 (Que. C.A.), at paras. 24 and 30, and Javanmardi v. Collège des médecins du Québec, [2013] R.J.Q. 328 (C.A.), at para. 26, both citing Godin v. Godin (2012), 317 N.S.R. (2d) 204 (C.A.), at para. 47; art. 53.1 of the Code of Civil Procedure; Céline Gervais, L’injonction (2nd ed. 2005), at p. 125; Vidéotron, at p. 1077, citing Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109. This insistence on formalism is especially important in the exceptional context of contempt proceedings brought by private parties.
[21] In all cases of contempt, it is crucial that courts stay alert to the exceptional nature of their contempt powers, using it only as a measure of last resort. A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice: Centre commercial Les Rivières, at paras. 7 and 65-66; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA 155, at para. 26 (CanLII).
[22] At the time Mr. Morasse instituted proceedings against Mr. Nadeau-Dubois, the offence of contempt of court existed in two separate provisions of the Code of Civil Procedure, arts. 50 and 761.[11] Article 50 para. 1, which fell within the section of the Code that laid out the powers of the courts and judges, established the courts’ general ability to hold someone in contempt:
50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.
[23] Article 761 was part of the section of the Code of Civil Procedure that dealt with injunctions. It created an offence for contempt of court that related specifically to breaching injunctions:
761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000, with or without imprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may be repeatedly inflicted until the contravening party obeys the injunction.
The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason to do so.
[24] Both arts. 50 and 761 have been interpreted harmoniously with the common law: see, e.g., Vidéotron, at p. 1078; Trudel v. Foucher, 2015 QCCA 691, at para. 31 (CanLII); Chamandy v. Chartier, 2015 QCCA 1142, at paras. 26 and 31 (CanLII); Montréal (Ville de) v. Syndicat des cols bleus regroupés de Montréal (SCFP), section locale 301, 2006 QCCS 5273, at para. 117 (CanLII); Gougoux v. Richard, 2005 CanLII 37770 (Que. Sup. Ct.), at paras. 28-31.
[25] 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. Actual knowledge may be shown by evidence that a court order was personally served on the person accused of contempt, or it can be inferred from the surrounding circumstances or from the individual’s conduct: Estrada v. Young, 2005 QCCA 493, at para. 11 (CanLII); Zhang v. Chau (2003), 229 D.L.R. (4th) 298 (Que. C.A.), at paras. 30-31. But actual knowledge cannot be inferred from the conduct of others or from service of the court order on persons other than the accused: Syndicat des cols bleus regroupés de Montréal, at para. 128. Moreover, where a court order is alleged to have been breached, it must state clearly and unequivocally what is required or prohibited. This ensures that an individual will not be convicted of contempt if the court order is vague: Paul Albert Chevrolet, at para. 26; Carey, at para. 33.
[26] 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: Carey, at para. 35.
[27] The second branch of art. 50 para. 1 is different. 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: Adrian Popovici, L’outrage au tribunal (1977), at p. 41; R. v. Kopyto (1987), 62 O.R. (2d) 449 (C.A.), at p. 512, citing Attorney-General v. Times Newspapers Ltd., [1973] 3 All E.R. 54 (H.L.), at pp. 66-67, per Lord Morris of Borth-y-Gest. Encouraging third parties to breach a court order is just one example of what may constitute the actus reus for this branch of civil contempt: Denis Ferl