B.C.G.E.U. v. British Columbia (Attorney General)

B.C.G.E.U. v. British Columbia (Attorney General)
Collection
Supreme Court Judgments
Date
1988-10-20
Report
[1988] 2 SCR 214
Case number
19518
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
British Columbia
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 19518
Decision Content
b.c.g.e.u. v. british columbia (attorney general), [1988] 2 S.C.R. 214
The British Columbia Government Employees' Union Appellant
v.
The Attorney General of British Columbia Respondent
and
The Attorney General of Canada Intervener
indexed as: b.c.g.e.u. v. british columbia (attorney general)
File No.: 19518.
1988: March 3; 1988: October 20.
Present: Dickson C.J. and Estey*, McIntyre, Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Courts‑‑Jurisdiction‑‑Criminal contempt‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not picketing constituting criminal contempt.
Constitutional law‑‑Charter of Rights ‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not injunction denying picketers' s. 7 right to liberty‑‑Whether or not picketers' rights to be informed of specific offence and to be presumed innocent under s. 11 (a) and (d) infringed‑‑Whether or not picketers' right to freedom of expression under s. 2 infringed‑‑Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 , 11 (a), (d).
Constitutional law‑‑Division of powers‑‑Criminal law and labour law‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not legality of picketing placed beyond criminal law because strike lawful and picketing permitted by Labour Code‑‑Constitution Act, 1867, s. 91(27) .
Appellant union picketed all law courts in British Columbia in the course of a legal strike and hoped to reduce court activity to matters of urgency. All persons who crossed the picket line, however, were considered to have honoured it if they first obtained a pass from the union. McEachern C.J.S.C. perceived a constitutional duty on his part to keep the law courts open and, on his own motion and ex parte, issued an injunction restraining picketing and other activities calculated to interfere with the operations of any court. The union moved, pursuant to the terms of the concluding paragraph of the order, to have the injunction set aside. McEachern C.J.S.C. dismissed the motion and the British Columbia Court of Appeal unanimously upheld that judgment. The constitutional questions before this Court queried: (1) whether a provincial superior court judge could constitutionally enjoin picketing of court‑houses by a union representing court employees engaged in a lawful strike; (2) whether an enactment by a provincial legislature or by Parliament could validly deprive a judge of a Supreme Court of his inherent authority to protect the functions and processes of his and other courts without an amendment to the Constitution of Canada; (3) whether the order restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringed or denied the rights and freedoms guaranteed by ss. 2 (b), (c), 7 , 11 (a), (c) and (d) of the Canadian Charter of Rights and Freedoms ; (4) if so, whether the order was justified by s. 1 of the Charter .
Held: The appeal should be dismissed; the first constitutional question should be answered in the affirmative; the second constitutional question needed not be answered; the third constitutional question should be answered in the affirmative with respect to s. 2 (b) of the Charter but in the negative with respect to ss. 7 , 11 (a) and (d); and the fourth constitutional question should be answered in the affirmative. McIntyre J. would answer the third constitutional question in the negative and find it unnecessary to answer the fourth.
Per Dickson C.J. and Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.: The rule of law is the very foundation of the Charter and the courts are directed to provide a remedy in the event of infringement of the rights guaranteed by the Charter . Those rights would become merely illusory and the entire Charter undermined if access to the courts were to be impeded or denied. The picketing, notwithstanding the picketers' policy of issuing a pass, would inevitably have had the effect of impeding and restricting de facto access to the courts; it could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia.
The picketing of the court‑houses of British Columbia constituted a criminal contempt. It fell within a category of contempt offences which included, amongst others, obstructing persons officially connected with the court or its process and preventing access by the public to courts of law.
The Chief Justice had jurisdiction to enjoin picketing on his own motion and ex parte. The act of picketing, while it did not take place strictly within the court room itself, constituted contempt in the face of the court. Although the motion was made ex parte, careful account was taken of the procedural rights at stake. The appellant Union was expressly given the right to move to have the order set aside and was accorded full rights to present evidence and argument. The Chief Justice did act upon his own observations but the case did not involve contested facts.
While the Labour Relations Board has jurisdiction in relation to what might be described as the labour relations aspect of picketing, the courts retain full authority to deal with violations of civil and criminal law arising from picketing. The order was issued in relation to a criminal contempt and therefore fell within the federal criminal law power and the inherent (or common law) jurisdiction of the courts to punish for contempt. Striking court employees must obey the law in relation to criminal contempt. The legality of all aspects of picketing was not put beyond the reach of the criminal law or criminal contempt simply because the strike was lawful and the Labour Code permitted picketing in the course of a lawful strike.
Even if the effect of the injunction were to deny the Union members' right to liberty protected by s. 7 , the denial of that right was fully in accordance with the principles of fundamental justice. An injunction does not violate s. 7 of the Charter solely because it was granted ex parte: circumstances can exist where the delay necessary to give notice might result in an immediate and serious violation of rights. Here, the order constituted a minimal interference with the procedural rights of those whose course of action could only result in a massive disruption of the courts' activities and consequent interference with the legal and constitutional rights of all citizens of British Columbia.
The claims arising under s. 11 (a) and (d) failed because no one was charged with an offence and no penal sanction was imposed upon any offender. There was no need to notify of an offence when no one was charged with a specific offence. Similarly, the right to be presumed innocent until proven guilty was not violated as no finding of guilt had been made. The proceedings were fair and the requirement of an independent and impartial tribunal was met for the very purpose of the order was to protect that right.
Peaceful picketing in the context of a labour dispute contains an element of expression protected by s. 2 (b). Apart from the Charter , however, the picketing was unlawful. The issue of whether the law of criminal contempt and the injunction to enforce the law pass scrutiny under the Charter must be dealt with pursuant to s. 1 .
Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" and relates to a concern which is "pressing and substantial in a free and democratic society". The means taken to accomplish that objective satisfied the three‑step proportionality test. First, there was a rational connection between the injunction and the objective of ensuring unimpeded access to the courts. Second, the injunction accomplished this objective by impairing as little as possible the s. 2 (b) rights of the members of the Union for the Union and its members were free to express themselves in other places and in other ways so long as they did not interfere with the right of access to the courts. Finally, there was a proportionality between the effects of the injunction on the protected right and the objective of maintaining access to the courts. The injunction was to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected.
Per McIntyre J.: What was enjoined by the court order was conduct calculated to interfere with court processes and to restrict or limit access to the courts, conduct clearly unlawful and calculated to interfere with and restrict the constitutionally protected rights of others. The making of the injunction therefore involved no infringement of any constitutionally protected right of the appellant. There was no need to balance conflicting rights here. Resort to s. 1 , which can only have application where there has been an infringement of a Charter right, was unnecessary.
Cases Cited
By Dickson C.J.
Considered: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; referred to: Re Johnson (1887), 20 Q.B.D. 68; Golder v. United Kingdom (1975), 1 E.H.R.R. 524; Harrison v. Carswell, [1976] 2 S.C.R. 200; Heather Hill Appliances Ltd. v. McCormack, [1966] 1 O.R. 12; Morris v. Crown Office, [1970] 1 All E.R. 1079; R. v. Hill (1976), 73 D.L.R. (3d) 621; R. v. Froese (1980), 23 B.C.L.R. 181; Ex parte Tubman; Re Lucas, [1970] 3 N.S.W.R. 41; Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273; R. v. Davies, [1906] 1 K.B. 32; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Foothills Provincial General Hospital Board v. Broad (1975), 57 D.L.R. (3d) 758; Churchman v. Joint Shop Stewards' Committee of the Workers of the Port of London, [1972] 3 All E.R. 603; Con‑Mech (Engineers) Ltd. v. Amalgamated Union of Engineering Workers, [1973] I.C.R. 620; R. v. United Fishermen and Allied Workers' Union (1967), 63 D.L.R. (2d) 356; Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283; McKeown v. The Queen, [1971] S.C.R. 446; Better Value Furniture (CHWK) Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1981), 26 B.C.L.R. 273 (B.C.C.A.) (leave to appeal to the Supreme Court of Canada refused, [1981] 2 S.C.R. viii); Attorney‑General of Quebec v. Laurendeau (1982), 145 D.L.R. (3d) 526, 33 C.R. (3d) 40; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103.
By McIntyre J.
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , Preamble, ss. 1, 2(b), (c), 7, 11(a), (c), (d), 24(1).
Constitution Act, 1867, s. 91(27) .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 8, as am.
Labour Code, R.S.B.C. 1979, c. 212.
Authors Cited
Borrie, Sir Gordon. Borrie and Lowe's Law of Contempt, 2nd ed. By Nigel Lowe; consultant editor, Sir Gordon Borrie. London: Butterworths, 1983.
Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.
Jowitt, William Allen, 1st Earl. Jowitt's Dictionary of English Law, 2nd ed., vol. 1. By Earl Jowitt and Clifford Walsh. Second edition by John Burke. London: Sweet and Maxwell, 1977.
McRuer, Hon. J. C. "Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual" (1952), 30 Can. Bar Rev. 225.
Miller, C. J. Contempt of Court. London: Paul Elek, 1976.
Weiler, Paul. Reconcilable Differences. Toronto: Carswells, 1980.
APPEAL from a judgment of the British Columbia Court of Appeal (1985), 64 B.C.L.R. 113, 20 D.L.R. (4th) 399, [1985] 5 W.W.R. 421, dismissing an appeal from a judgment of McEachern C.J.B.C. (1983), 48 B.C.L.R. 1, 2 D.L.R. (4th) 705, [1984] 1 W.W.R. 399, 40 C.P.C. 116, dismissing a motion to set aside or vary an injunction made on his own motion and ex parte, [1983] 6 W.W.R. 640. Appeal dismissed; the first constitutional question should be answered in the affirmative; the second constitutional question needed not be answered; the third constitutional question should be answered in the affirmative with respect to s. 2 (b) of the Charter but in the negative with respect to ss. 7 , 11 (a) and (d); and the fourth constitutional question should be answered in the affirmative. McIntyre J. would answer the third constitutional question in the negative and find it unnecessary to answer the fourth.
David Blair, for the appellant.
Jack Giles, Q.C., for the respondent.
Graham Garton, Q.C., and David Stephens, for the intervener the Attorney General of Canada.
The judgment of Dickson C.J. and Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ. was delivered by
1. The Chief Justice‑‑This case involves the fundamental right of every Canadian citizen to have unimpeded access to the courts and the authority of the courts to protect and defend that constitutional right.
I
Facts
2. On the morning of November 1, 1983, as a result of strike action by the appellant British Columbia Government Employees Union (the Union) pickets were posted at the entrances to and within the precincts of, the courts of justice in Vancouver and at all other courts of justice in the province of British Columbia. The strike came at a time of the year when all the courts of the province were in session. The situation, as McEachern C.J.S.C. observed, was indeed urgent with trials, appeals and chambers due to start that morning in many locations throughout the province. Some of these cases were criminal and civil jury trials, and persons were in custody. Counsel, witnesses and jurors were or should have been en route to the court‑houses. The position of the appellant Union was clearly set out in an affidavit of its director of membership services: "The Union hopes that people will support the Union by honouring the picket line. Honouring the picket line in every instance involves people exercising their right and freedom not to cross it. The Union recognizes that persons who cross only upon obtaining a pass have nevertheless honoured the line and thereby supported the Union in the dispute." The appellant did issue "picket passes" whereby it purported to authorize people, including officers of the court, to pass through the picket lines.
3. The circumstances surrounding the passes were described in an affidavit of Ronald Fratkin, a member of the Law Society of British Columbia, which reads in part:
2. On or about Wednesday, October 19, 1983, I and several other members of an ad hoc committee of the Criminal Justice Section of the Canadian Bar Association met in Vancouver, British Columbia with Mr. Jack Adams, an officer of the British Columbia Government Employees' Union, to discuss the potential impact of a possible strike by this Union upon court services in the Province.
3. At the October 19, 1983 meeting Mr. Adams expressed the Union's concern about persons in custody and the impact of a strike upon such persons.
4. At the same meeting Mr. Adams indicated that if there were a strike followed by picketing of courthouses, passes would be issued by the Union to assist in providing lawyers to act in Court as duty counsel to deal with people in custody, including assistance at show cause hearings.
5. On Monday, October 31, 1983, when it became clear that a strike by the Union was indeed imminent, I telephoned Mr. Adams [sic] office. At 1:39 p.m. the same afternoon Mr. Adams' office left a message at my office confirming that two duty counsel passes would be issued for 222 Main Street, Vancouver. At approximately 2:15 p.m. that afternoon my office also received a telephone call from the picket captain (known to me as Becky) for 222 Main Street, Vancouver, requesting that Duty Counsel report to her on the morning of November 1, 1983 to receive the passes.
...
8. Accordingly, I discussed the problem with the picket captain at the Provincial Court at 222 Main Street, Vancouver. Shortly after, I was advised by the picket captain that she had communicated with Union headquarters and had received immediate approval to facilitate the appearance of two duty counsel at the Law Courts at 800 Smithe Street, Vancouver.
...
10. While outside the Courthouse at 222 Main Street, Vancouver, during the morning of November 1, 1983 I had occasion to observe that the British Columbia Government Employees' Union picket line was orderly and peaceful. Persons appearing to have business inside the Courthouse entered and left the building at will and at no time appeared to be impeded in any way by the picketers.
Leaflets were distributed by a group known as the British Columbia Law Union urging members of the public who approached the court‑house to respect the picket line and to encourage lawyers not to cross it except with the approval of the union upon the issuance of a picket pass. In a letter written to McEachern C.J.S.C., a member of the Law Union requested that the courts be closed, and that all civil and criminal procedures be adjourned "other than for clear emergency situations as may be agreed upon with the B.C.G.E.U. and Operation Solidarity". The Chief Justice in response said that he had a constitutional duty to keep the courts open, not to close them.
4. The Chief Justice arrived at the Court‑house at 8:00 a.m. and on his own motion and ex parte issued an injunction in the following terms:
On the Court's own motion, ex parte, THIS COURT ORDERS that all persons having notice of this Order are restrained and an injunction is hereby granted restraining them until further Order from:
(a) gathering, congregating or picketing at the entrances to the Law Courts of the Provincial, County, Supreme, or Appeal Courts of British Columbia or within the precincts of the said Courts; or
(b) from engaging in any activities whatsoever which are calculated to interfere with the operations of any Court of Justice in the province or to restrict or limit access of all persons to the Courts and their precincts.
For greater certainty IT IS FURTHER ORDERED that this injunction shall extend to and include all those locations within the province where Courts of Justice are situate in buildings where other activities are also carried on, but any persons affected by this Order may apply on 24 hours' notice in writing to the Registrar for directions with respect to such locations.
IT IS FURTHER ORDERED that any person affected by this Order may apply on 24 hours' notice in writing to the Registrar of this Court at Vancouver for an Order setting aside or varying this Order.
5. The order was served on the picketers at the Vancouver Court‑house about 9:30 and 10:10 a.m. and at various later times that day at other court‑houses. It was universally obeyed.
6. The Union moved, pursuant to the terms of the concluding paragraph of the Order, to have the injunction set aside. The application was supported by the Law Union and was resisted by the Attorney General of British Columbia. McEachern C.J.S.C. dismissed the motion in written reasons delivered on November 10, 1983. The Union appealed to the British Columbia Court of Appeal and that appeal was dismissed by unanimous judgment on June 27, 1985.
7. The Union sought and obtained leave to appeal to this Court. The following constitutional questions were stated:
1. Does a provincial superior court judge have the constitutional jurisdiction to make an order enjoining picketing of court‑houses by or on behalf of a union representing court employees engaged in a lawful strike?
2. Can an enactment by a provincial legislature or by Parliament validly deprive a judge of a Supreme Court of his inherent authority to protect the functions and processes of his and other courts without an amendment to the Constitution of Canada?
3. Did the order by the Chief Justice of the Supreme Court of British Columbia dated November 1, 1983 restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringe or deny the rights and freedoms guaranteed by ss. 2 (b), (c), 7 , 11 (a), (c) and (d) of the Canadian Charter of Rights and Freedoms ?
4. If the order of the Chief Justice of the Supreme Court of British Columbia dated November 1, 1983 restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringes or denies the rights and freedoms guaranteed by ss. 2 (b), (c), 7 , 11 (a), (c) and (d) of the Charter , is the order justified by s. 1 of the Charter and therefore not inconsistent with the Constitutional Act, 1982?
8. The Attorney General of Canada intervened before this Court with respect to questions 1 and 2, taking the position that question 1 should be answered in the affirmative, and that it was not necessary to answer question 2, but that if an answer were to be given, it should be affirmative.
II
Judgments of the British Columbia Courts
Ex parte injunction (reported at [1983] 6 W.W.R. 640)
9. McEachern C.J.S.C. framed the issue in the following terms (at p. 641):
The question arises whether it is proper or permissible for anyone, individually or collectively, deliberately or accidentally, or directly or indirectly to interfere with the business of the courts of justice or to interfere with or impede the absolute right of access all citizens have to the courts of justice.
10. The Chief Justice answered that question emphatically in the negative. He noted that in the courts of British Columbia there were literally thousands of cases set for hearing and disposition on a daily basis. Persons in custody had a right to apply for bail, persons awaiting trial were entitled to have their guilt or innocence determined without delay. The British Columbia Supreme Court's responsibility included the writ of habeas corpus, injunctions to prevent damage or loss of rights, the custody and protection of children, the right of occupation of matrimonial homes, the care and protection of disabled and infirm persons, the filing of documents to prevent the loss of a cause of action and a myriad of other matters vitally important to the ordinary citizen. McEachern C.J.S.C. noted as well the vital importance that the courts be open to the public and to the media: "Justice cannot be found behind closed doors or picket lines." He emphasized that the issue was not the personal importance or dignity of judges, but rather the protection and preservation of the institution of the courts of justice themselves. McEachern C.J.S.C. carefully distinguished picketing in connection with private commercial or industrial settings from picketing which interfered with the free and unrestricted access of all persons to the courts. Picketing which fell into the latter category, he held, constituted a contempt of court and, in his view, the court had not only the jurisdiction but, as well, the duty, to defend and protect its authority and the universal availability of its process. He quoted the words of Bowen J. in Re Johnson (1887), 20 Q.B.D. 68 (C.A.):
"What is the principle which we have here to apply? It seems to me to be this. The law has armed the High Court of Justice with the power and imposed upon it the duty of preventing (by direct action) and by summary proceedings any attempt to interfere with the administration of justice."
He concluded with these words: "The rule of law has not been suspended in this province."
Motion to set aside ex parte injunction (reported at (1983), 2 D.L.R. (4th) 705)
11. In his subsequent judgment, rendered on November 10, 1983, after affidavit material had been filed by the Union, McEachern C.J.S.C. upheld his original order and gave extensive reasons for doing so. The Chief Justice emphasized the centrality of the courts and the judiciary to our constitution and to the rule of law. He stressed as well the importance of the right of citizens to have unimpeded and uninterrupted access to the courts and the authority of the courts to protect and vindicate that right. McEachern C.J.S.C. said (at pp. 706‑7):
The powers entrusted to the judiciary by the constitution are essential to the proper organization of society because, while common law and the legislative branches of the constitution declare what the rights and obligations of the people are, the judiciary is the machinery which protects and enforces these rights and obligations. For this reason, free, unimpeded and uninterrupted access to the courts of justice of all parties, jurors, witnesses, counsel, court staff and the public is fundamental to the preservation and enforcement of every legal right, freedom and obligation which exists under the rule of law.
12. The Chief Justice carefully reviewed the authorities dealing with criminal contempt and concluded that "Any conduct which is calculated to interfere with the proper administration of justice is criminal contempt of court."
13. It was beyond question, he held, that picketing at a court‑house would have the effect of deterring witnesses, jurors, lawyers and members of the public from entering the court‑house to discharge their duties. While the Union had issued passes to individuals such as duty counsel, permitting them to cross the picket lines, McEachern C.J.S.C. held that neither the Union nor anyone else had the right to approve who should or should not have access to the court and the very thought of licensing anyone to enter the court itself was an affront to freedom.
14. McEachern C.J.S.C. held that the authority of the court to protect its process was in no way pre‑empted by provincial legislation relating to labour disputes or essential services. Recognizing that the circumstances had to be unusual, McEachern C.J.S.C. held that where a criminal contempt threatened to disrupt court proceedings, the court had the authority to move ex mero motu in order to maintain the proper administration of justice. He held that as he had direct knowledge of the facts from observation upon entering the court‑house and, in view of the urgency of the situation, he did have authority to issue the injunction in the manner in which he had.
15. The Chief Justice cited examples of important court matters which could not have been carried on behind a picket line (at pp. 713‑14):
In New Westminster Toy J. was able to continue a most difficult case and McKenzie J. was able to commence and complete the tragic case of R. v. Blackman where a young man was found not guilty by reason of insanity on a charge of murdering six members of his family; Trainor J. continued a difficult murder trial in Cranbrook; Davies J. held a criminal assize at Prince Rupert; Callaghan J. held a civil assize at Nanaimo; Lander, Finch and Wood JJ. were able to commence or continue jury trials in Vancouver; and all the other busy work of this court at Vancouver was carried on. The County Court of Vancouver was able to carry on its usual work as well as complete jury selections in criminal cases involving the attendance of upwards of 460 jurors; and, so far as I know, most of the work of all courts in most locations of the province was carried on.
There are many other examples too numerous to mention which demonstrate beyond any rational possibility of doubt that a picket line at a court‑house does in fact obstruct the proper administration of justice.
16. The Chief Justice noted that the order which he had made only precluded picketing. It did not purport to require the staff of the courts to resume the discharge of their duties. When the Union commenced the strike at midnight on October 31, 1983 against the Government of British Columbia the services of all government employees were withdrawn except certain excluded supervisory personnel and some who were required for the performance of essential services. Those withdrawn from service included all the staff (except supervisory personnel) of all the courts of justice within the province.
British Columbia Court of Appeal (reported at (1985), 20 D.L.R. (4th) 399)
17. The decision of McEachern C.J.S.C. was affirmed by a unanimous judgment of the British Columbia Court of Appeal. Nemetz C.J.B.C. characterized the issue as follows (at p. 401):
...the real issue before us is whether in a democratic society any person or bodies of persons can restrict the rights of its citizens to enjoy the benefits of the rule of law under the protection of an independent judiciary.
18. Nemetz C.J.B.C. emphasized the constitutional importance of the independence of the judiciary and of its right and duty to maintain the rule of law and the Constitution by guaranteeing unimpeded access to the courts. The Chief Justice had little doubt that the installation of a picket line surrounding the court‑house would impede access (at pp. 402‑3):
...a picket line, in British Columbia, triggers in its citizens an almost universal and automatic response not to cross it. Whether caused by trade union ethic or fear of reprisal for crossing a picket line, the response of not crossing the picket line has been described by Dr. Weiler [in Reconcilable Differences (1980, Carswells Co. Ltd.) at p. 79] as Pavlovian in nature. Thus when a picket line is established at the entrance to a court‑house, access is effectively impaired.
19. The Chief Justice went on to hold that there was undoubted inherent jurisdiction to issue an injunction to prevent conduct clearly calculated to obstruct and interfere with the due course of justice. In his view, the very fact that the Union issued picket passes demonstrated its intention to impede entry to the courts of those persons who were not accorded such passes.
20. Nemetz C.J.B.C. noted that nowhere in McEachern C.J.S.C.'s order was there any suggestion of contempt on the part of those members of the court‑house staff who, being on a legal strike, withdrew their services. The injunction was directed to the picketing. The dispute had nothing to do with the courts. It was a dispute that the Union had with the provincial government.
21. While the Charter issue was apparently not raised before McEachern C.J.S.C., reference to s. 2 (b) and (c) was made in argument before the British Columbia Court of Appeal. Nemetz C.J.B.C. noted that the matter was not fully argued, but held that even assuming that the injunction had infringed Charter rights, such infringement could be demonstrably justified under s. 1 , as the Charter itself would become an illusion if the public were to be denied access to the courts.
22. Section 2 (b) and (c) of the Charter read:
2. Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; . . .
23. Before considering picketing and its effects and the law of contempt, I must advert to the Canadian Charter of Rights and Freedoms which plays a role of superordinate importance in this appeal.
III
The Canadian Charter of Rights and Freedoms
24. The Union is advancing certain Charter arguments in the present proceedings. I will deal with those arguments shortly. For the moment I wish to highlight certain sections of the Charter which, it seems to me, are a complete answer to anyone seeking to delay or deny or hinder access to the courts of justice in this country. Let us look first at the preamble to the Charter . It reads: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". So we see that the rule of law is the very foundation of the Charter . Let us turn then to s. 52(1) of the Constitution Act, 1982 which states that the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Earlier sections of the Charter assure, in clear and specific terms, certain fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights of utmost importance to each and every Canadian. And what happens if those rights or freedoms are infringed or denied? Section 24(1) provides the answer‑‑anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The rights and freedoms are guaranteed by the Charter and the courts are directed to provide a remedy in the event of infringement. To paraphrase the European Court of Human Rights in Golder v. United Kingdom (1975), 1 E.H.R.R. 524, at p. 536, it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. As the Court of Human Rights truly stated: "The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings". And so it is in the present case. Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined.
25. There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Counsel for the Attorney General of British Columbia posed this question:
By what authority and on what criteria were the Union leaders deciding who were to be given passes and who were to be denied them?
I cannot believe that the Charter was ever intended to be so easily thwarted.
26. I would adopt the following passage from the judgment of the British Columbia Court of Appeal (at p. 406):
We have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. It is the preservation of that right with which we are concerned in this case. Any action that interferes with such access by any person or groups of persons will rally the court's powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category.
IV
Picketing and its Effects
27. Picketing is a crucial form of collective action in the arena of labour relations. A picket line is designed to publicize the labour dispute in which the striking workers are embroiled and to mount a show of solidarity of the workers to their goal. It is an essential component of a labour relations regime founded on the right to bargain collectively and to take collective action. It represents a highly important and now constitutionally recognized form of expression in all contemporary labour disputes. All of that is beyond dispute. In Harrison v. Carswell, [1976] 2 S.C.R. 200, a majority of this Court stated at p. 219:
Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing, but the right has been exercisable in some locations and not in others . . . .
28. On the other hand, and this is crucial, both courts below have found that the picketing would inevitably have had the effect of impeding and restricting access to the courts. There surely can be little doubt as to the correctness of that conclusion. The very purpose and intent of the picket line in a labour dispute is to discourage and dissuade individuals from entering the premises which are being picketed. This is clear from the affidavit material filed by the appellant Union. One of the great strengths of the trade union movement is the spirit of solidarity. By standing together as a collective whole, trade unionists are able to aspire to improved wages and working conditions unattainable if each individual member were left to his or her own devices. Solidarity is made manifest when one group of workers is on strike. Fellow unionists and other sympathetic members of the public are made aware of the strike by the presence of picketers. Picketing sends a strong and automatic signal: do not cross the line lest you undermine our struggle; this time we ask you to help us by not doing business with our employer; next time, when you are on strike, we will respect your picket line and refuse to conduct business with your employer.
29. A picket line ipso facto impedes public access to justice. It interferes with such access and is intended to do so. A picket line has great powers of influence as a form of coercion. As Stewart J. said in Heather Hill Appliances Ltd. v. McCormack, [1966] 1 O.R. 12 (Ont. H.C.), at p. 13:
The picket line has become the sign and symbol of trade union solidarity and gradually became a barrier‑‑intangible but none the less real. It has now become a matter of faith and morals and an obligation of conscience not to breach the picket line and this commandment is obeyed not only by fellow employees of the picketers but by all true believers who belong to other trade unions which may have no quarrel at all with the employer who is picketed.
30. Both judgments below refer to Paul Weiler's book, Reconcilable Differences, which summarizes the purpose and effect of a picket line in the province of British Columbia. At page 79, Dr. Weiler notes:
The crucial variable determining the impact of peaceful picketing is whether it is addressed to unionized workers. That kind of picket line operates as a signal, telling union members not to cross. Certainly in British Columbia the response is automatic, almost Pavlovian. That response is triggered by a number of factors: the sense of solidarity among members of the general trade‑union movement; an appreciation that it is in the self‑interest of each to honour the other fellow's picket line because in their own dispute they will want the same reaction from other workers; a concern for the social pressures and ostracism of other workers if they do not conform to the trade union ethic; the likelihood that they will face serious discipline from their own trade union. It might even cost them their jobs, if they defy that ethic and cross a picket line approved by the trade union movement. In the final analysis, the legal treatment of picketing must rest upon a realistic appraisal of its industrial relations role. The picket line is much more than the simple exercise of a worker's freedom of expression. In a heavily unionized community it is an effective trigger to a work stoppage by a group of employees.
31. Picketing of a commercial enterprise in the context of an ordinary labour dispute is one thing. The picketing of a court‑house is entirely another. A picket line both in intention and in effect, is a barrier. By picketing the court‑houses of British Columbia, the appellant Union, in effect, set up a barricade which impeded access to the courts by litigants, lawyers, witnesses, and the public at large. It is not difficult to imagine the inevitable effects upon the administration of justice. As the judgments of McEachern C.J.S.C. and of Nemetz C.J.B.C. poi