C.B.C. v. Quebec Police Comm.

C.B.C. v. Quebec Police Comm.
Collection
Supreme Court Judgments
Date
1979-06-28
Report
[1979] 2 SCR 618
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Administrative law
Decision Content
SUPREME COURT OF CANADA
C.B.C. v. Quebec Police Comm., [1979] 2 S.C.R. 618
Date: 1979-06-28
The Canadian Broadcasting Corporation and Dave Knapp (Applicants in Superior Court) Appellants;
and
Marc Cordeau and Rhéal Brunet JJ. and Mr. Roméo Courtemanche, members of the Quebec Police Commission, and the Quebec Police Commission (Respondents in Superior Court) Respondents.
1978: December 20; 1979: June 28.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Administrative law — Contempt of court not com­mitted in presence of the Police Commission — Power to conduct an inquiry or punish exclusive to superior courts — Motion in evocation — British North Ameri­ca Act, s. 96 — Police Act, S.Q. 1968, c. 17, ss. 8, 17, 20, 21 — Public Inquiry Commission Act, R.S.Q. 1964, c. I I , ss. 7, 9, 10, 11, 12 — Code of Civil Procedure, arts. 46 to 54.
The Quebec Police Commission made an order direct­ing appellants to appear before it to answer a charge of contempt of court because the Canadian Broadcasting Corporation had broadcast a photograph of a witness despite being formally prohibited by the Commission from doing so. The Superior Court authorized the issuance of a writ of evocation for the purpose of declaring the order void on the sole ground that the members of the Commission had no power to conduct a hearing or to impose sentence for a contempt not committed in their presence. A majority of the Court of Appeal reversed the judgment of the Superior Court. In this Court appellants pleaded the three arguments relied on in the lower courts:
(1) The Police Commission had no power to make the order for a "partially closed hearing".
(2) The Police Commission did not have the power to conduct an inquiry concerning a contempt not com­mitted in its presence or to punish such contempt.
(3) The immunity of the Canadian Broadcasting Cor­poration and its servants prevented the Commission from prosecuting them for contempt.
Held: The appeal should be allowed. Per Laskin C.J. and Ritchie, Spence, Pigeon, Beetz, Estey and Pratte JJ.: The second argument relied on by appellants is good law and suffices to dispose of the case; there is accordingly no need to consider the two other points. The validity of this proposition, namely that the Commission does not have the power to inquire into a contempt not committed in its presence or to punish such a contempt, depends upon that of a number of other propositions.
(1) At common law, the power to conduct an inquiry into a contempt committed ex facie curiae and to punish such a contempt is enjoyed exclusively by the superior courts. It can be concluded from examination of the Anglo-Canadian authorities of the last two hundred years that the power to punish for contempt committed ex facie curiae has been firmly established as a power inherent in and enjoyed exclusively by the superior courts. This rule is moreover justified in principle. First, the power to punish for contempt committed ex facie is liable to result in inquiries which may well involve a lower court in areas foreign to its jurisdiction. Second, this power is bound up with the superintending and controlling power which only a superior court may exercise over inferior courts. Finally, the inferior courts are not without any means of ensuring that their lawful orders are observed, since the superior courts may come to their aid.
(2) Unlike certain courts of law, the Police Commis­sion has no inherent powers: it has only loose powers which are conferred on it by statute.
(3) The Quebec Legislature may not constitutionally confer on the Police Commission the power to conduct an inquiry concerning a contempt committed ex facie and to punish such a contempt. A provincial legislature may not, without infringing s. 96 of the British North America Act, confer on a tribunal or a court the mem­bers of which are not appointed by the Governor Gener­al a jurisdiction which in 1867 was reserved to the superior courts.
(4) The Police Act, the Public Inquiry Commission Act and the Code of Civil Procedure do not confer on the Police Commission a power to conduct an inquiry into a contempt committed ex facie curiae and to punish such a contempt. Sections 11 and 12 of the Public Inquiry Commission Act confer on commissioners the powers of a judge of the superior court, but only those concerning the procedure for the examination of wit­nesses. As no legislation sets aside the principles of the common law, which are the source of the law regarding contempt of court, it must be assumed that the legislator intended to retain these principles, according to which the superior courts enjoy exclusive jurisdiction concern­ing contempt committed ex facie.
Per Martland and Dickson JJ.: It is not necessary to the decision in this appeal to consider the constitutional implications of the power of an inferior tribunal to punish for contempt committed ex facie. It is sufficient to state that the powers conferred upon the Police Commission, ,given the general limitation at common law upon the contempt powers of an inferior tribunal, must be strictly interpreted, and a strict interpretation in this case leads inevitably to the conclusion that such power was not invested in the Commission.
National Harbours Board v. Langelier, [1969] S.C.R. 60; Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; R. v. Almon (1765), 97 E.R. 94; R. v. Clement (1821), IV B. & Ald. 218; In the matter of W.I. Clement (1822), 11 Price's 68; Ex parte Pater (1864), 5 B. & S. Q.B. 299; R. v. Lefroy (1873), 8 L.R. Q.B. 134; Ex parte Fernandez (1861), 30 L.J. C.P. 321, 142 E.R. 349; R. v. Davies, [1906] 1 K.B. 32; In re Gerson, In re Nightingale, [1946] S.C.R. 538; In re Gerson, [1946] S.C.R. 547; Ex parte Lunan, [1951] 2 D.L.R. 589; Procureur général du Québec v. Denis, [1966] C.S. 467; Re Hawkins and Halifax County Residential Tenancies Board (1974), 47 D.L.R. (3d) 117, referred to; Re Diamond and The Ontario Munic­ipal Board, [1962] O.R. 328, followed; McKeown v. The Queen, [1971] S.C.R. 446; Re Regina and Monette (1975), 64 D.L.R. (3d) 470; Att. Gen. of Quebec and Keable v. Att. Gen. of Canada, [1979] 1 S.C.R. 218; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681; Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112; Reference re The Farm Products Marketing Act of Ontario, [1957] S.C.R. 198; McKay v. The Queen, [1965] S.C.R. 798; C.T.C.U.M. v. Syndicat du transport de Montréal, [1977] C.A. 476; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Jones v. Board of Trustees of Edmonton Catholic School District No. 7, [1977] 2 S.C.R. 872; Corpora­tion of the City of Mississauga v. Regional Municipali­ty of Peel, [1979] 2 S.C.R. 224, 26 N.R. 200, referred to.
APPEAL from a decision of the Court of Appeal of Quebec reversing a judgment of the Superior Court[1], which had authorized a writ of evocation to be issued. Appeal allowed. Gaspard Côté, Q.C., for the appellants.
Jacques Richard and Gérald Tremblay, for the respondents.
The judgment of Laskin C.J. and Ritchie, Spence, Pigeon, Beetz, Estey and Pratte JJ. was delivered by
BEETZ J.—The appeal is from a majority deci­sion of the Court of Appeal of Quebec, reversing a judgment of the Superior Court which authorized the issuance of a writ of evocation for the purpose of declaring void an order of the Quebec Police Commission. This order directs appellants to appear before the Commission to answer a charge of contempt.
I—The facts
The facts relied on in appellants' motion asking the Superior Court for leave to exercise the recourse in evocation must be taken as proven at this stage: art. 847 C.C.P. Moreover, there is no indication that these facts are in dispute.
In the course of its inquiry into organized crime, the Police Commission on April 10, 1973 made the following order:
[TRANSLATION] During the next few days we will hear only one witness.
However, the members of the Commission do not intend to receive this witness's deposition in a closed hearing. Nonetheless, this witness has expressed certain fears, and in order to facilitate his testimony, the mem­bers of the Commission have decided to hear the witness with the public excluded, but to allow journalists, who in fact represent the public, to remain present in the room.
The production or reproduction of any photographs or drawings is therefore strictly prohibited; the information media, the newspapers, news broadcasts and photogra­phers are of course strictly prohibited from reproducing any photographs or drawings of the witness in the course of the hearing.
On April 14 or 16—following the motion for evocation speaks of the 14th and the order in question of the 16th—the Canadian Broadcasting Corporation broadcasted on its English network two news bulletins in which it showed a photograph of the witness Théodore Aboud. On May 28, 1973, the Police Commission made the order disputed by the motion in evocation:
[TRANSLATION] SPECIAL RULE ART. 53 C.C.P.
We the undersigned, members of the Quebec Police Commission, sitting pursuant to Order in Council 2821-72;
IN VIEW OF the order made by us on April 10, 1973, prohibiting news and other information media from producing or reproducing any photographs or drawings of the witness Théodore Aboud during the course of the hearing;
WHEREAS on April 14, 1973, during the broadcast of news on Channel 6, the Canadian Broadcasting Cor­poration, English language network, produced or repro­duced in a television broadcast a photograph of the said witness Théodore Aboud;
IN VIEW OF the provisions of arts. 49 et seq. of the Code of Civil Procedure;
IN VIEW OF the Police Act (S.Q. 1968, c. 17, as amended);
IN VIEW OF the Public Inquiry Commission Act (R.S.Q. 1964, c. 11);
FOR THESE REASONS:
HEREBY MAKE a special rule directing the Canadi­an Broadcasting Corporation, English language network, through its duly authorized representative, and Mr. Dave Knapp, news director of the English language network, Canadian Broadcasting Corporation, to appear before us on May 31, 1973 at 10:15 a.m., or as soon as counsel may be heard, in the Montreal Court House, 1 Notre-Dame Street East, Room 5.15, to hear evidence of the acts with which you are charged and to present such arguments in your defence as you may have to answer the charge of contempt of court towards the said Police Commission.
(signed) RHEAL BRUNET .
(signed) MARC E. CORDEAU
(signed) ROMEO COURTEMANCHE
Members of the Quebec Police Commission.
II—The Superior Court judgment and the deci­sion of the Court of Appeal
On August 23, 1973, Bard J. of the Superior Court authorized the issuance of the writ on the sole ground that the members of the Commission [TRANSLATION] "have no power to conduct a hearing or to impose sentence for a contempt not committed in their presence: [1973] C.S. 888, at p. 892.
On August 22, 1974, the Court of Appeal reversed the judgment of the Superior Court and dismissed the motion in evocation. Bélanger J.A., with whom Brossard J.A. concurred, recognized that the Police Commission, unlike a superior court, had no inherent power to punish for contempt. However, he found such power in the legis­lation governing the Commission, legislation which he interpreted as extending to the power to punish for a contempt not committed in the presence of the Commission. He also interpreted this legisla­tion as empowering the Commission to make the order of April 10, 1973, which he likened to an order for a "partially closed hearing", since the Commission could order a fully closed hearing. Finally, Bélanger J.A., relying on a decision of this Court, National Harbours Board v. Langelier[2], rejected the claim of immunity made by the CBC for itself and for appellant Dave Knapp, because the Corporation is a mandatary of Her Majesty the Queen in right of Canada. The late Gagnon J.A., dissenting, would have dismissed the appeal chiefly on the ground that the order of April 10, 1973 is essentially different from an order for a closed hearing, and that the legislation governing the Police Commission does not empower it to make such an order. This order for a "partially closed hearing" would thus be void, and the order of May 28, 1973 would also be void. Without necessarily excluding the possibility that the Police Commission has the power to punish in certain cases for contempt not committed in its presence, Gagnon J.A. was also of the opinion that the Commission did not have this power in the case at bar. Gagnon J.A. did not rule on the immunity claimed by the Canadian Broadcasting Corpora­tion.
III—Arguments submitted by appellants
In this Court appellants maintained, in objection to the decision of the Court of Appeal, the three arguments relied on in the Superior Court and in the Court of Appeal:
1. The Police Commission had no power to make the order for a "partially closed hear­ing" dated April 10, 1973;
2. The Police Commission did not have the power to conduct an inquiry concerning a contempt not committed in its presence or to punish such contempt;
3. The immunity of the Canadian Broadcasting Corporation and its servants prevented the Commission from prosecuting them for contempt.
In my opinion, the second argument is good law and provides a sufficient basis for allowing the appeal. There is accordingly no need to decide the other points.
IV—The legislation
The Quebec Police Commission is a permanent body created by the Police Act, S.Q. 1968, c. 17, s. 8. It is responsible for promoting the prevention of crime and the efficiency of police service in Quebec (s. 16). Certain regulatory powers are conferred on it by s. 17, and by s. 20 it has the quasi-judicial power of inquiring into the conduct of police officers: Saulnier v. Que. Police Comm[3]. The Commission may further be requested to conduct specific inquiries, in accordance with ss. 19 and 21:
19. The Commission shall make an inquiry, whenever so requested by the Lieutenant-Governor in Council, into any aspect of crime which he indicates.
The Commission shall also make an inquiry into the activities of an organization or system, its ramifications and the persons involved, to the extent prescribed by the Lieutenant-Governor in Council whenever he has reason to believe that in the fight against organized crime or terrorism and subversion, it is in the public interest to order such an inquiry to be held.
21. For the purposes of such inquiries, the Commis­sion and each of its members and every person author­ized by it to make an inquiry shall be vested with the powers and immunities of commissioners appointed under the Public Inquiry Commission Act.
Section 22(b) of the Police Act provides that
The Commission may at any time during an inquiry order a sitting held in camera if it considers it in the public interest.
Moreover, in an inquiry contemplated in the second paragraph of section 19, it may, when it considers it necessary, order a private hearing of a witness and exclude every other person from the place of hearing. The testimony given in that case shall be confidential subject to the discretion of the Commission to use for its report the information so obtained, which shall not however be connected with the witness so heard.
Sections 7, 9, 10, 11 and 12 of the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, referred to by the Police Act, read as follows:
7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the pro­ceedings upon the hearing, all the powers of a judge of the Superior Court in term.
9. The commissioners or any of them may, by a summons under his or their hand or hands, require the attendance before them, at a place and time therein specified, of any person whose evidence may be material to the subject of inquiry, and may order any person to bring before them such books, papers, deeds and writings as appear necessary for arriving at the truth.
Every such person shall attend and answer all ques­tions put to them by the commissioners touching the matter to be inquired into, and shall produce for the commissioners all books, papers, cheques, promissory notes, deeds and writings required of him and in his custody or control, according to the tenor of the summons.
The commissioners or any one of them may require the usual oath or affirmation from every person exam­ined before them, and may administer the same.
10. Any person on whom any summons has been served, in person or by leaving a copy thereof at his usual residence, who fails to appear before the commis­sioners, at the time and place specified therein, may be proceeded against by the commissioners in the same manner as if he had failed to obey any subpoena or any process lawfully issued from a court of justice. 11. Any person refusing to be sworn when duly required, or omitting or refusing, without just cause, sufficiently to answer any question that may be lawfully put to him, or to render any testimony in virtue of this act, shall be deemed to be in contempt of court and shall be punished accordingly.
No answer given, however, by any person so heard as a witness, may be used against him in any prosecution under any act of the Legislature, if the commissioners have given him a certificate establishing that he has claimed the right to be excused from answering, and has given full and truthful answers to the satisfaction of the said commissioners.
12. If any person refuse to produce, before the com­missioners, any paper, book, deed or writing in his possession or under his control which they deem neces­sary to be produced, or if any person be guilty of contempt of the commissioners or of their office, the commissioners may proceed for such contempt in the same manner as any court or judge under like circumstances.
Finally, the provisions of the Code of Civil Procedure which apply are the following:
46. The courts and the judges have all the powers necessary for the exercise of their jurisdiction. They may, in the cases brought before them, even of their own motion, pronounce orders or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to cover cases where no specific remedy is provided by law.
49. The courts or judges may condemn any person who is guilty of contempt of court.
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.
In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.
51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding one year. Imprisonment for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.
52. Anyone who is guilty of contempt of court in the presence of the judge in the exercise of his functions may be condemned at once, provided that he has been called upon to justify his behaviour.
53. No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a special rule ordering him to appear before the court, on the day and at the hour fixed, to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have.
The rule, issued by the judge of his own motion or on application, must be served personally, unless for valid reasons another mode of service is authorized. The application for the issuance of the rule may be presented without its being necessary to have it served.
54. Judgment is rendered after summary hearing; if it contains a condemnation it must state the punishment imposed and set forth the facts upon which it is based, and in such case it is executory like an ordinary judg­ment in a penal case.
V—The Police Commission does not have the power to inquire into a contempt not commit­ted in its presence or to punish such a contempt
The validity of this primary proposition depends upon that of a number of other propositions.
1. At common law, the power to conduct an inquiry into a contempt committed ex facie curiae and to punish such a contempt is enjoyed exclusively by the superior courts
This proposition derives from the apparently unanimous, longstanding and consistent opinion of a great many judges and commentators. The opin­ions of the judges are for the most part obiter, but the reason for this is that in English and Canadian decisions of the last two hundred years, of which there have been a great many concerning contempt of court, there is so far as I know virtually no precedent in which a court of inferior jurisdiction has claimed the power to punish for contempt committed ex facie, and I have found none in which such a court has exercised it with the approval of a superior court. Superior courts, on the other hand, have always claimed and exercised this power, as an inherent power enjoyed by them exclusively. This consistency in usage is more than just significant; it is decisive. Moreover, when the legislator dealt with the question, he did so in terms which indicate that he recognized this usage and intended to sanction it, or at least in terms that in no way indicated his intention to alter it. Finally, the rule of exclusive jurisdiction of the superior courts is justifiable in principle.
In R. v. Almon[4], respondent was charged with contempt for, inter alia, publishing a defamatory pamphlet concerning a superior court. Wilmot J. wrote, at p. 99:
The power, which the Courts in Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the fact of it, 1 Vent. 1. And the issuing of attachments by the Supreme Courts of Justice in West­minster Hall, for contempts out of Court, stands upon the same immemorial usage as supports the whole fab­rick of the common law; it is as much the «lex terrae,» and within the exception of Magna Charta, as the issuing any other legal process whatsoever.
I have examined very carefully to see if I could find out any vestiges or traces of its introduction, but can find none. It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it, and therefore cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society.
—It should be noted that this statement is an opinion and not a judgment; the judgment was never rendered, as the prosecution was dropped.—
Another very old case has certain resemblances to the case at bar. This is R. v. Clement[5], and In the matter of W. I. Clement[6]. Before the successive trials of several individuals charged with high treason the Court, without ordering a closed hear­ing, prohibited any publication of the proceedings until the trials were concluded. Clement was found guilty of contempt and ordered to pay a fine of £500 for printing and publishing an account of the proceedings. The case was successively evoked to the King's Bench Division by certiorari, and to the Exchequer Division by estreat. These two divisions refused to intervene, as in their opinion the prohi­bition on publishing and the conviction for contempt were valid. Baron Wood, of the Exchequer Court, wrote at p. 87:
I am clearly of opinion that there is no ground whatever for calling upon this Court to remit the fine which has been imposed. It is incident to every superior Court of Justice to have power to fine and imprison for contempt. An offender may also be indicted, but it is not necessary to have recourse to so circuitous a mode of proceeding, where this summary authority is more con­venient and effectual. This power is inherent in the superior Courts of record, per legem terrae, and as much so as any of those which they exercise by virtue of their jurisdiction in enforcing judgments founded on cases determined by means of a jury. That at once disposes of the question which has been made of their jurisdiction.
Blackstone deals with the question as follows in 4 Commentaries on the Laws of England, 1829, 18th ed., at pp. 283 and 284:
III. To this head, of summary proceedings, may also be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.
The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are consequential, which (without such gross inso­lence or direct opposition) plainly tend to create an universal disregard of their authority. The principal instances, of either sort, that have been usually pun­ishabe by attachment, are chiefly of the following kinds.
1. Those committed by inferior judges and magistrates; by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their distribution; or by disobeying the king's writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like.
For, as the king's superior courts (and especially the court of King's Bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice.
At p. 285:
Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever: others in the absence of the party; as by disobeying or treating with disrespect the king's writ, or the rules or process of the court; .. .
At pp. 285 and 286:
The process of attachment, for these and the like contempts, must necessarily be as ancient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establish­ments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exer­cised, as early as the annals of our law extend. And, though a very learned author seems inclinable to derive this process from the statute of Westm. 2, 13 Edw. I c. 39 ... yet he afterwards more justly concludes, that it is a part of the law of the land; and, as such, is confirmed by the statute of magna carta.
It is significant that Blackstone does not even mention the jurisdiction of the inferior courts in this matter, and that he makes a necessary though not exclusive connection between the power to punish for contempt and the superintending and controlling power exercised by the superior courts, in particular the King's Bench, over magistrates with inferior jurisdiction. Nonetheless, it would appear that inferior courts of record were invested with an inherent but lim­ited power to punish for contempt, a power which they had to exercise under the supervision of the Queen's Bench Division: see Ex parte Pater[7], which involved a contempt in facie.
The clearest decision on the matter is R. v. Lefroy[8]. In a case before a county court, a lawyer taking part in the trial had published a letter in a newspaper virulently criticizing the conduct of the judge presiding over the court, and was summoned by the latter to appear before it to explain his contempt. This was an inferior court of record, empowered by statute to punish for contempt com­mitted before it by a fine not exceeding £5 or imprisonment not exceeding seven days. Counsel obtained from the Queen's Bench Division a writ of prohibition directing the county court not to proceed because it lacked jurisdiction. Cockburn C.J., speaking for the unanimous Court, said at pp. 137 and 138:
The rule must be made absolute. I think that the judge of the county court has no authority to punish for contempt not committed in the face of the Court. It is perfectly true that it is laid down by authority, and reason shews the correctness of the rule, that all courts of record have power to fine and imprison for any contempt committed in the face of the Court; for the power is necessary for the due administration of justice, to prevent the Court being interrupted. But it is quite another thing to say that every inferior court of record shall have power to fine or imprison for contempt of court when that contempt is committed out of court, as the writing or publication of articles reflecting on the conduct of the judge. There are other remedies for such proceedings. The power to commit for contempt is fully gone into by Blackstone and Hawkins; but though this power is recognised in the superior courts, it is nowhere said that an inferior court of record has any power to proceed for contempt out of court; and there is an obvious distinction between the superior courts and other courts of record. In the case of the superior courts at Westminster, which represent the one supreme court of the land, this power was coeval with their original constitution, and has always been exercised by them. These courts were originally carved out of the one supreme court, and are all divisions of the aula regis, where it is said the king in person dispensed justice, and their power of committing for contempt was an emana­tion of the royal authority, for any contempt of the court would be a contempt of the sovereign. But it is a very different matter with respect to the county courts and similar inferior courts. No case is to be found in which such a power has ever been exercised by an inferior court of record, or, at all events, upheld by a decision of the superior courts. Finding, therefore, this distinction, that the superior courts have exercised the power from time immemorial, and that no such power has ever been known to be exercised by an inferior court, that would be sufficient to dispose of this case. But in fact it is not necessary to go as far as that. (My emphasis.)
Cockburn then disposed of the matter by reference to the statutory enactment. This may be obiter, but it has great weight in view of the unanimity of the Court and its importance. Fur­thermore, counsel argued that the county court had an inherent power to punish for contempt committed ex facie, a power of which it had not been divested by the statute. Mellor J. observed in this regard at p. 139:
It clearly would have been unnecessary to give this summary power to the court of inflicting a fine for interference with the process of the court had it been intended or supposed that the county court, as an inferi­or court of record, had the general authority which the superior courts have.
In Ex parte Fernandez[9], it was held that an assize court which imposes a penalty of imprisonment for contempt need not give specific details in the warrant of commitment, and that another court cannot go beyond that warrant in an action of habeas corpus. The reason for this is that an assize court is a superior court and is not subject to the supervision of any other court. Willes J. clearly suggests, at p. 333, that the same would not be true in the case of a sentence of imprisonment by a lower court. For example, in such a case, how could a superior court to which an action of habeas corpus is brought know whether a contempt had been committed ex facie, unless the warrant of commitment so indicated?
In R. v. Davies[10], the King's Bench Division held that it had the right to punish contempt committed ex facie when the offended court is an inferior court of record, because the latter is pow­erless to defend itself against such a contempt. Moreover, Wills J., stating the unanimous view of the Court, directly related this writ to the superin­tending and controlling power which the King's Bench Division exercised over the lower courts. Referring to the superior courts other than the King's Bench Division, he stated (at pp. 42 and 43):
They were not the custodes morum (to use Hawkins' phrase) in any sense analogous to that which the phrase bears when applied to the King's Bench, whose peculiar function it was to exercise superintendence over the inferior Courts and confine them to their proper duties. This, however, as it seems to us, was only one exercise of the duty of seeing that they did impartial justice, and if and when the attainment of that end required that the misdeeds of others should be corrected as well as the misfeasances of the inferior Courts themselves, it seems to us that it is no departure from principle, but only its legitimate application to a new state of things, if others whose conduct tends to prevent the due performance of their duties by those Courts have to be corrected as well as the Courts themselves.
(at pp. 47 and 48):
... to hold that, because in times long gone by the chief, if not the only danger to be guarded against was the illegal exercise of arbitrary power by inferior Courts and their officers, therefore the power of this Court extends no further, and that the King's Bench cannot afford them protection as well as administer correction, would, we think, be to mistake the application of a principle for the principle itself. The mischief to be stopped is in the case of the inferior Courts identical with that which exists when the due administration of justice in the Superior Courts is improperly interfered with. The reason why the Court of King's Bench did not concern itself with contempts of the other Superior Courts was that they possessed ample means and occasions for protecting themselves. Inferior Courts have not such powers, although some of them, quarter sessions for example, try many more cases than are tried at assizes, and have a very extended and important jurisdiction. The danger is perhaps greater to them than it is to the Superior Courts of having their efficiency impaired by publications such as those which have given rise to the present proceedings.
Finally, the author perhaps most often referred to in cases of contempt, James Francis Oswald, Contempt of Court, in his third edition, 1911, at pp. 1 to 21, takes it as established that: (1) only the superior courts have an inherent power to punish for contempt committed ex facie; (2) inferior courts of record have an inherent power to punish for contempt committed in facie; and (3) inferior courts which are not courts of record have no power to punish for contempt unless such a power is given to them by statute: they only have the power to maintain order by expelling disorder­ly persons.
Canadian courts have followed the English decisions.
In In re Gerson, In re Nightingale[11], Rinfret C.J. refused to issue a writ of habeas corpus for the release of a person confined for refusing to be sworn and to testify in a criminal proceeding. At p. 544 he wrote:
The power to punish for contempt is inherent in courts of superior original jurisdiction, quite independent of enactments in codes or statutes relating to their discipli­nary powers.
His decision was upheld by this Court, In Re Gerson[12]. Appellant argued that he should have been prosecuted on indictment in accordance with ss. 165 or 180(d) of the Criminal Code in force at that time. Kerwin J., as he then was, answered this argument as follows, at p. 549:
The argument on this point was that the applicant could be prosecuted under either of these sections and that these proceedings being available the right of the Court to punish for a contempt of court had been abrogated. Without deciding whether either of these sections would apply in the circumstances, we are of opinion that even if that were so it is a necessary incident to every superior court of justice to imprison for a contempt of court committed in the face of it: Ex Parte Jose Luis Fernandez, a judgment of the Court of Common Pleas in which judgments were delivered by Chief Justice Erie, Willes J. and Byles J. That right persists and has not been abrogated by either of the sections of the Criminal Code referred to and the mere fact that the trial of the third party had been completed did not deprive the Court of the power to exercise its authority.
In Ex parte Lunan[13], the facts were similar to the preceding case, although the contempt there was committed before a county court with criminal jurisdiction. Gale J. of the Supreme Court of Ontario—as he then was—stated the following opinion at p. 590:
Contempt of Court may properly be regarded in two aspects. In the first place all Courts of record possess an inherent and venerable jurisdiction to discipline at once and without formality any contempt committed in the face of the Court and superior Courts have the right to deal with a contempt committed out of the presence of a Court. Those principles have been expressed many times over but specific reference may be made to Carus Wilson's Case (1845), 7 Q.B. 984, 115 E.R. 759. That the jurisdiction does not rest upon statutory authority is made clear by Chief Justice Rinfret in Re Gerson, Re Nightingale, 87 C.C.C. 143 at pp. 147-8, [1946] S.C.R. 538 at p. 544.
In Procureur général de la Province de Québec v. Denis[14], it was held that contempt proceedings for contempt ex facie should be presented to the offended court in question—the Superior Court—and not to another court—the Court of Queen's Bench, criminal side—although the latter was presided over by a judge of the Superior Court. Dorion C.J. observed at p. 469:
[TRANSLATION] Contempt of court committed in the face of the court may be dealt with by a decision of the court in which it is committed, whether this is a court of inferior or superior jurisdiction. This right, which is inherent in any court of law, does not seem to have ever been disputed, and the English, Canadian and Quebec precedents have always recognized it.
The same is not true, however, for contempt of court not committed in the face of the court. In such a case, the question arises whether the court affected has inferi­or or superior jurisdiction. In the former case, the action to punish must be brought in a court of superior jurisdiction.
And at pp. 473 and 474:
[TRANSLATION] There is no doubt that the jurisdic­tion conferred on a court to dispose of a question of contempt of court is inherent in and subsidiary to its primary jurisdiction, for the purpose of maintaining the decorum and dignity of the court and punishing contempts to which it may be subject. It follows that it is this court, and only this court, which can take cogni­zance of the offence committed and render a decision concerning it.
It must always be borne in mind, howev