Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.

Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.
Collection
Supreme Court Judgments
Date
1992-09-24
Report
[1992] 2 SCR 1065
Case number
21882
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Stevenson, William
On appeal from
Quebec
Subjects
Civil procedure
Constitutional law
Notes
SCC Case Information: 21882
Decision Content
Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065
Vidéotron Ltée and Premier Choix: TVEC Inc. Appellants
v.
Industries Microlec Produits Électroniques Inc.,
Microlec Group Inc., Microlec Circuits Inc.,
Microlec Distributors Inc., André Duplessis,
Jean‑François Duplessis, Réjean Grondin,
Jean Daigneault and René Gilbert Respondents
Indexed as: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.
File No.: 21882.
1992: March 26; 1992: September 24.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Stevenson* JJ.
Civil procedure ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Compellability ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 49 to 54, 295, 302, 309, 761 ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 33.1 ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (c).
Civil rights ‑‑ Prohibited testimony ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Compellability ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 33.1 ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 295, 302, 309.
Constitutional law ‑‑ Charter of Rights ‑‑ Compellability ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (c) ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 295, 302, 309.
The Superior Court allowed the appellants' action for a permanent injunction and ordered the respondents to cease distributing decoders which make it possible to descramble the appellants' pay television signals. The appellants then filed an application for a special rule ordering the respondents to appear under art. 53 C.C.P., alleging that they had committed a contempt of court by failing to comply with the injunction. At the hearing they called one of the respondents to testify. He objected to testifying, on the ground that he was not compellable in a proceeding in which he was himself cited for contempt. The Superior Court upheld the objection and the Court of Appeal affirmed that decision.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest and Gonthier JJ.: A person cited for contempt under the Code of Civil Procedure cannot be compelled to testify. The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of "public law", because respect for the role and authority of the courts, one of the foundations of the rule of law, and the proper administration of justice are always at issue. This public law aspect and the special rules governing contempt in the Code of Civil Procedure make contempt of court a highly specific institution within the Code. Rules specific to contempt have also been developed by the courts to supplement these exceptional rules created by the Code. In Quebec law contempt of court is strictissimi juris and quasi‑penal in nature, given the possible consequences, including imprisonment. It would therefore be contrary to the fundamental principle of Quebec penal law expressly recognized in s. 33.1 of the Charter of Human Rights and Freedoms if a person cited for contempt could be compelled to testify. The effect of this would also be to facilitate the task of proving contempt beyond a reasonable doubt, a burden which the applicant must scrupulously discharge. Non‑compellability corresponds to the approach adopted in common law, from which the Quebec law of contempt of court derives, and is consistent with the Canadian Charter of Rights and Freedoms , which protects the right against self‑incrimination.
While the Code of Civil Procedure sets out in general terms the procedure which applies to contempt of court proceedings, when provisions of such broad application as arts. 295, 302 and 309 C.C.P. conflict with a rule as fundamental to the special rules of contempt as the non‑compellability of the person cited for contempt, these provisions cannot prevail. The absence of any express exception in the Code is not a deciding factor.
Per Lamer C.J.: It is clear from reading art. 50 C.C.P. that for all practical purposes the legislature has created an offence. The fact that it chose to deal with contempt of court in the Code of Civil Procedure does not in any way alter the fact that, having regard to the Canadian Charter of Rights and Freedoms , a person cited for contempt is a person charged with an offence within the meaning of s. 11 of the Charter and enjoys the constitutional guarantee contained in s. 11 (c), which specifically provides that a person charged with an offence may not be compelled to testify. As to arts. 295, 302 and 309 C.C.P., if there is any scope for interpretation, the interpretation that does not offend the Charter is the one that should be adopted.
Per L'Heureux‑Dubé J. (dissenting): Although respect for the function and authority of the courts is a common denominator of civil and criminal contempt, it is important to preserve the distinction between these two types of contempt and not to give a public law dimension to a purely civil contempt. While in criminal matters contempt is essentially of a punitive and deterrent character and intended to protect collective interests, contempt in purely civil matters is primarily coercive and intended to protect individual interests. In this case, the primary function of the contempt of court proceeding provided for in art. 761 C.C.P. is to prevent and penalize any breach of an order for an injunction recognizing the private rights of one of the parties. If priority had to be given to respect for the function and authority of the court, this would amount to relegating to the background the private rights which the injunction order seeks to protect. The primary objective of private law should be the enforcement of private rights. Like the injunction of which it is an adjunct, the civil contempt proceeding is a means by which the private rights of a party are enforced. The fact that the possibility of imprisonment is associated with it does not alter its private nature since coercion is the objective sought by the imprisonment. The relationship between the injunction order, the art. 761 C.C.P. contempt proceeding and the possibility of imprisonment are not only compatible but closely complementary.
Articles 295, 302 and 309 C.C.P. make it clear that compellability of the parties is the general rule in civil matters, and these provisions are applicable to a person charged with contempt of court pursuant to art. 761 C.C.P. The section devoted to contempt (arts. 49 to 54 C.C.P.) cannot be interpreted as if it were an enclave within the Code of Civil Procedure. That Code constitutes a set of interdependent rules that must be considered as a whole. Since the section dealing with contempt is silent as to the compellability of a person cited for contempt, reference must be made to the general rules. These rules are clear and there is no reason for excluding them from consideration and referring to other sources. Further, the application of the non‑compellability rule in a purely private context is incompatible with the underlying values which that rule and the privilege against self‑incrimination are designed to protect. Moreover, the imposition of these hurdles on a private party who has obtained an injunction is open to objection: first, it would make the enforcement of the private rights protected by the order much more difficult, and second, it would amount to transforming a purely private action into a criminal proceeding, thereby rendering meaningless the terms, conditions and purposes appropriate to civil contempt resulting from the breach of an injunction order.
Finally, even assuming that the Canadian Charter of Rights and Freedoms applies, the respondents cannot benefit from the protection of s. 11 (c) since the focus of the contempt penalty arising from a civil injunction order is coercion rather than punishment and deterrence. Moreover, the word "accused" in s. 11 refers to a prosecution, which necessarily goes beyond the purely private setting in which an action for an injunction and a civil contempt proceeding take place. The same conclusion applies in respect of s. 33.1 of the Quebec Charter of Human Rights and Freedoms.
Cases Cited
By Gonthier J.
Referred to: Syndicat des employés de l'Hôpital St‑Augustin (CSN) v. Procureur général du Québec, [1977] C.A. 539; Duquette v. Zellers Inc., Sup. Ct. Montréal, No. 500‑05‑000747‑863, July 6, 1987; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; R. v. Wigglesworth, [1987] 2 S.C.R. 541; C.T.C.U.M. v. Syndicat du transport de Montréal (C.S.N.), [1977] C.A. 476; In re Storgoff, [1945] S.C.R. 526; Ministre du Revenu national v. Lafleur, [1964] S.C.R. 412; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Toupin v. Longchamps, J.E. 90‑818; Simard v. Pavillon Charleroi Royer Inc., J.E. 79‑188; Restaurant Faubourg St‑Denis Inc. v. Durand, [1990] R.J.Q. 1218; Sporting Club du Sanctuaire Inc. v. 2320‑4365 Québec Inc., [1989] R.D.J. 596; Charlebois v. Bourbeau, [1979] C.A. 545; Parent v. Perreault, [1979] C.A. 237; Droit de la famille ‑‑ 728, [1989] R.D.F. 671; Daigle v. St‑Gabriel de Brandon (Corp. municipale de la paroisse de), J.E. 91‑195; Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] 2 Q.B. 67; MacNeil v. MacNeil (1975), 67 D.L.R. (3d) 114; Apple Computer, Inc. v. Mackintosh Computers Ltd., [1988] 3 F.C. 277; Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67; Lapierre v. Attorney General of Quebec, [1985] 1 S.C.R. 241.
By L'Heureux‑Dubé J. (dissenting):
United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Royal Trust Co. v. Tucker, [1982] 1 S.C.R. 250; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Montréal‑Est (Ville de) v. Labrosse, [1985] C.S. 960; Contenants Industriels Ltée v. Commission de la santé et de la sécurité du travail du Québec, [1988] R.J.Q. 1345; Comité ‑‑ Infirmières et infirmiers ‑‑ 8, [1983] D.D.C.P. 295.
Statutes and Regulations Cited
Act respecting the Code of Civil Procedure of Lower Canada, S. Prov. C. 1866, 29‑30 Vict., c. 25.
Act respecting the Code of Civil Procedure of the Province of Quebec, S.Q. 1897, c. 48.
Act to provide for the issue of the Writ of Injunction in certain cases, and to regulate the procedure in relation thereto, S.Q. 1878, 41 Vict., c. 14.
Canadian Charter of Rights and Freedoms, s. 11 (c).
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 33, 33.1 [ad. 1982, c. 61, s. 12].
Civil Code of Lower Canada, arts. 1053, 1065, 2273 (old).
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 1, 2, 20, 26, para. 5, 46, 49, 50, 51, 52, 53, 54 [am. 1990, c. 4, s. 222], 295, 302, 309, 313, 751, 761, 944 et seq., 996, 1051.
Code of Civil Procedure, S.Q. 1965, c. 80, art. 1.
Code of Civil Procedure of Lower Canada (1867), art. 1360.
Code of Civil Procedure of the Province of Quebec (1897), arts. 1, 834.
Code of Penal Procedure, R.S.Q., c. 25.1, chap. XIII.
Quebec Act (1774).
Authors Cited
Baudouin, Jean‑Louis. Les obligations, 3e éd. Cowansville: Yvon Blais, 1989.
Baudouin, Jean‑Louis. "The Impact of the Common Law on the CivilianSystems of Louisiana and Quebec". In Joseph Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions. Baton Rouge: Louisiana State University Press, 1974.
Brierley, John E. C. "Quebec's `Common Laws' (Droits communs): How Many Are There?". In Mélanges Louis‑Philippe Pigeon. Montréal: Wilson & Lafleur, 1989, 109.
Brisson, Jean‑Maurice. La formation d'un droit mixte: l'évolution de la procédure civile de 1774 à 1867. Montréal: Thémis, 1986.
Canada. Law Reform Commission. Working Paper 20. Criminal Law: Contempt of Court ‑‑ Offences Against the Administration of Justice. Ottawa: Minister of Supply and Services Canada, 1977.
"Coercive (The) Function of Civil Contempt" (1965), 33 U. Chi. L. Rev. 120.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1992.
Ferland, Denis, Benoît Emery et Jocelyne Tremblay. Précis de procédure civile du Québec. Cowansville: Yvon Blais, 1992.
Pigeon, Louis‑Philippe. Drafting and Interpreting Legislation. Toronto: Carswell, 1988.
Pineau, Jean et Danielle Burman. Théorie des obligations, 2e éd. Montréal: Thémis, 1988.
Popovici, Adrian. L'outrage au tribunal. Montréal: Thémis, 1977.
Prujiner, Alain. "Origines historiques de l'injonction en droit québécois" (1979), 20 C. de D. 249.
Quebec. Civil Code of Lower Canada: Sixth and Seventh Reports and Supplementary Report. Québec: George Desbarats, 1865.
Quebec. Rapport préliminaire des commissaires à la révision du Code de procédure civile, 1962.
Savoie, Réginald et Louis‑Philippe Taschereau. Procédure civile, t. I. Montréal: Guérin, 1973.
Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Book, 1983.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Stuart, Don. "Annotation to R. v. Wigglesworth" (1984), 38 C.R. (3d) 388.
Walton, Frederick Parker. The Scope and Interpretation of the Civil Code of Lower Canada. Toronto: Butterworths, 1980.
APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 703, 69 D.L.R. (4th) 519, 56 C.C.C. (3d) 436, affirming a judgment of the Superior Court.** Appeal dismissed, L'Heureux‑Dubé J. dissenting.
Luc Huppé, for the appellants.
Danielle Barot, as amicus curiae, for the respondents.
English version of the reasons delivered by
//Lamer C.J.//
Lamer C.J. ‑‑ I have read the reasons of my colleague Justice Gonthier and concur in them without reservation. Although the reasons he gives are sufficient to dispose of this appeal, I should like to add a few comments in support of a different approach. It is clear from reading art. 50 of the Code of Civil Procedure, R.S.Q., c. C‑25, that, for all practical purposes, the Quebec legislature has created an offence. The fact that it chose to deal with contempt of court in the Code of Civil Procedure does not in any way alter the fact that, having regard to the Canadian Charter of Rights and Freedoms , a person cited for contempt of court is a person charged with an offence within the meaning of s. 11 of the Charter and enjoys the constitutional guarantee contained in s. 11 (c), which specifically provides that a person charged with an offence may not be compelled to testify.
As to arts. 295, 302 and 309 C.C.P., in addition to the reasons mentioned by my colleague for making special provision in the Code for contempt of court, there is the consideration that, if a statute or body of legislation is to be interpreted, the interpretation that does not offend the Charter is the one that should be adopted.
English version of the judgment of La Forest and Gonthier JJ. delivered by
//Gonthier J.//
Gonthier J. ‑‑ This appeal raises the issue of whether the respondent in a motion for contempt of court based on failure to comply with an injunction may be compelled to testify.
I. Facts
On December 4, 1987, the Superior Court allowed the appellants' action for a permanent injunction, and ordered the respondents to cease distributing decoders which make it possible to descramble the appellants' pay television signals: [1988] R.J.Q. 546. On January 6, 1989, the appellants filed an application for a special rule ordering the respondents to appear under art. 53 C.C.P. They alleged that the respondents had committed a contempt of court by failing to comply with the permanent injunction. At the hearing, they called the respondent André Duplessis to testify. Mr. Duplessis objected to testifying, on the ground that he was not compellable in a proceeding in which he was himself cited for contempt. On August 31, 1989, the Superior Court upheld the respondent's objection. The Court of Appeal dismissed an appeal from that decision on February 6, 1990: [1990] R.J.Q. 703, 69 D.L.R. (4th) 519, 56 C.C.C. (3d) 436. On November 8, 1990, this Court gave the appellants leave to appeal the judgment of the Court of Appeal, [1990] 2 S.C.R. xi.
II. Relevant Legislation
Code of Civil Procedure, R.S.Q., c. C‑25
295. All persons are competent to testify except those who, because of their physical or mental condition, are not in a fit state to report the facts of which they had knowledge, and any person competent to testify may be compelled to do so.
302. Any person present at the trial may be required to testify and is bound to answer as if he had been regularly summoned.
309. A witness cannot refuse to answer for the reason that his reply might tend to incriminate him or to expose him to a legal proceeding of any kind; but if he objects on that ground, his reply cannot be used against him in any penal proceedings instituted under any law of Québec.
III. Judgments Below
Superior Court
Galipeau J. of the Superior Court did not follow the decisions of the Court of Appeal, which had held in Syndicat des employés de l'Hôpital St‑Augustin (CSN) v. Procureur général du Québec, [1977] C.A. 539, that a person who was cited for contempt was compellable. Rather, he followed Lévesque J. of the Superior Court, who had held to the contrary in Duquette v. Zellers Inc., Sup. Ct. Montréal, No. 500‑05‑000747‑863, July 6, 1987, unreported, relying on the common law (in Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618) and on the decisions of the Court of Appeal which had held that, even in civil contempt cases, there had to be proof beyond a reasonable doubt.
Court of Appeal
Brossard J.A., for the court, noted that the judgment of Lévesque J. in Duquette v. Zellers Inc., supra, had moved away from the prevailing opinion of the Superior Court and Court of Appeal. Brossard J.A. took two points from that decision: it was based on the common law, and it applied the rules of criminal law to a civil contempt case. He agreed with the first proposition, in view of Canadian Broadcasting Corp., supra, and Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048. Moreover, art. 309 C.C.P. cannot be regarded as derogating from the common law in respect of contempt of court. He then reviewed the common law authorities, and found that today, even in civil contempt cases, a person cited for contempt is not compellable in the contempt proceedings.
Brossard J.A. further held that compellability in such a case would be inconsistent with the Canadian Charter of Rights and Freedoms . Contempt of court proceedings go beyond mere private litigation, and fall within the realm of the public interest and the proper administration of justice. Accordingly, the Charter should apply. Moreover, following R. v. Wigglesworth, [1987] 2 S.C.R. 541, the possibility of imprisonment would bring contempt of court proceedings within the ambit of s. 11 of the Charter , which protects the respondent against self‑incrimination.
IV. Issue
Can the respondent, who has been cited for contempt of court as a result of an alleged failure to comply with an order, be compelled to testify?
V. Analysis
A. The Special Nature of Contempt of Court
The appellants made much before us of the distinction between "civil contempt" and "criminal contempt". They argued that, when the main proceedings in which the order allegedly violated was made are civil in nature, it follows that the contempt itself may be characterized as civil contempt, and that it is then governed by the rules in the Code of Civil Procedure. In support of this proposition, the appellants relied on the decision of the Court of Appeal in C.T.C.U.M. v. Syndicat du transport de Montréal (C.S.N.), [1977] C.A. 476, at p. 482:
[translation] . . . the subsequent proceedings were of the same nature as those which preceded them, and they became, if I may use the expression, chameleon proceedings which took on the colour and nature of those which preceded them, to which they were connected.
The Court of Appeal relied on two decisions of this Court: In re Storgoff, [1945] S.C.R. 526, and Ministre du Revenu National v. Lafleur, [1964] S.C.R. 412. The issue in those two cases was whether prerogative writs, habeas corpus in the first and prohibition in the second, fell within the realm of criminal procedure (federal) or civil procedure (provincial). This Court held that whether such writs are governed by federal or provincial rules will depend on the nature of the proceedings to which they are connected.
Without wishing to express an opinion on the relevance of these two decisions to the issue of contempt of court, I agree that the case at bar indeed involves civil contempt, which is governed by the Code of Civil Procedure. This does not in any way assist the appellants, however; affixing the qualifier "civil" to a contempt of court does not mean that we are relieved of the task of examining the foundation on which the power to punish contempt of court rests, in order to determine what rules apply to it.
Article 50 C.C.P. defines contempt as follows:
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.
This definition clearly establishes the characteristics common to all types of contempt covered by the Code of Civil Procedure, characteristics which may be unduly masked by too great an insistence on the distinction between civil contempt and criminal contempt. The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of "public law", in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue. In United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, McLachlin J. established a direct connection between contempt of court and the rule of law, at p. 931:
The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
As the fact that arts. 49 to 54 C.C.P., concerning contempt of court, are included in the chapter entitled "Powers of Courts and Judges" clearly indicates, the power to punish for contempt of court is an integral part of the inherent powers of the courts (see Canadian Broadcasting Corp., supra), and as such it constitutes an essential element in the proper administration of justice.
This public law aspect of contempt of court is of course reflected in the sanctions which are attached to it. Any contempt of court, even a civil contempt, may result in punishment by imprisonment for one year, under art. 51 C.C.P. Contempt of court has moved somewhat out of the realm of private law and into that of public law, thereby acquiring a special place within what is essentially a code of private law like the Code of Civil Procedure. As we shall see, contempt of court is subject to very special rules in Quebec law.
B. The Special Nature of Contempt of Court in Quebec Law
Among the various types of procedure governed by the Code of Civil Procedure, contempt of court occupies a highly specific, and even exceptional position. The special nature of contempt is apparent from art. 1 of the Code:
1. Notwithstanding any contrary provision of any general law or special act, imprisonment in civil matters is abolished, except in cases of contempt of court.
The fact that contempt of court is made an exception in the very first article of the Code shows the extent to which it departs from the rules of private procedural law. Moreover, the fact that the distinguishing feature which makes contempt appear as an exception, that is, the possibility of imprisonment, is itself dealt with in art. 1 of the Code also indicates the importance of this factor in determining which law applies to contempt of court. The essence of the unique nature of contempt is already found in art. 1.
In practice, arts. 49 to 54 C.C.P. lay the foundation for a set of special rules for contempt of court. Article 52 requires that the respondent be given the opportunity to justify his behaviour in the case of contempt in facie. For contempt of court committed ex facie, art. 53 provides that the respondent must be personally served with a rule ordering him to appear. Article 54 requires that a judge who makes a condemnation for contempt of court must specifically state the punishment imposed and set forth the reasons for the decision. Moreover, that article makes execution of the judgment subject to Chapter XIII of the Code of Penal Procedure, R.S.Q., c. C‑25.1.
Other articles of the Code of Civil Procedure also contribute to the uniqueness of contempt of court. For example, art. 761 C.C.P., which deals with contempt of court for failing to obey an order of injunction, limits the liability of persons not named in the order to those cases in which such persons knowingly contravene it. Article 313 C.C.P. allows a witness who refuses to answer to provide a valid reason to excuse his or her refusal. Finally, as additional protection, para. 5 of art. 26 C.C.P. provides that an appeal will always lie from any final judgment in matters of contempt of court.
Rules specific to contempt have been developed by the courts to supplement the exceptional rules created by the Code of Civil Procedure itself. The best known and most important of these rules is undoubtedly the requirement that contempt of court be proved beyond a reasonable doubt, an exceptional burden in civil law (Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109, followed in subsequent judgments). In cases of failure to obey an order, when there is a doubt as to the legal effect of the order which has allegedly been violated, the respondent is to be given the benefit of that doubt (Toupin v. Longchamps, C.A. Montréal, Nos. 500‑09‑001674‑860, 500‑09‑001675‑867, 500‑09‑001676‑865, April 11, 1990, J.E. 90‑818). The judge must allow the respondent a certain degree of latitude in respect of the relevance of the evidence presented in attempting to justify himself or herself (Simard v. Pavillon Charleroi Royer Inc., C.A. Montréal, No. 500‑09‑000310‑789, February 9, 1979, J.E. 79‑188).
Similarly, the courts have been very strict with respect to the evidence that the respondent was indeed subject to a court order. Thus an arbitration award which merely recognizes a settlement reached by the parties does not constitute an order the contravention of which could give rise to contempt of court (Restaurant Faubourg St‑Denis Inc. v. Durand, [1990] R.J.Q. 1218 (C.A.)). In the same vein, an order to comply with a contract cannot be the basis for a citation for contempt of court, when the contract is long and complex and would really be interpreted only at the stage of the contempt proceedings (Sporting Club du Sanctuaire Inc. v. 2320‑4365 Québec Inc., [1989] R.D.J. 596 (C.A.)). Nor is a judgment which establishes the non‑custodial parent's access rights an order against the custodial parent (Charlebois v. Bourbeau, [1979] C.A. 545).
The courts are also particularly reluctant to hold someone in contempt of court who has not complied with an order to pay a sum of money, since imprisonment for debt has been abolished. The conduct of the debtor must indicate a certain degree of intention to evade his or her obligations (Parent v. Perreault, [1979] C.A. 237, and Droit de la famille ‑‑ 728, [1989] R.D.F. 671 (C.A.)). As the Court of Appeal has observed, contempt of court cannot be reduced to a mere means of enforcing judgments (Daigle v. St‑Gabriel de Brandon (Corp. municipale de la paroisse de), C.A. Montréal, No. 500‑09‑000520‑874, January 22, 1991, J.E. 91‑195).
In summary, the special rules for contempt of court in Quebec law proceed from the following principle: contempt of court is strictissimi juris and quasi‑penal in nature, given the possible consequences. In my opinion, it would be inconsistent at the least if a respondent cited for contempt could be compelled to testify. This would be contrary to a fundamental principle of Quebec penal law, which is expressly recognized in s. 33.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12. The effect of this would be to facilitate greatly the task of proving contempt beyond a reasonable doubt, a burden which the applicant must scrupulously discharge. I therefore conclude that the respondent must not be held to be compellable, in the context of the exceptional character of the contempt of court process in the Code of Civil Procedure.
This approach, moreover, corresponds to the approach adopted in common law, from which the Quebec law of contempt of court derives, as this Court noted in Canadian Broadcasting Corp., supra (see Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] 2 Q.B. 67 (C.A.), MacNeil v. MacNeil (1975), 67 D.L.R. (3d) 114 (N.S.C.A.), and Apple Computer, Inc. v. Mackintosh Computers Ltd., [1988] 3 F.C. 277 (C.A.)). The non‑compellability of the respondent is also consistent with the Canadian Charter of Rights and Freedoms , which protects the right against self‑incrimination.
The appellants argued that if it is impossible to compel the respondent in contempt of court proceedings it will be very difficult to prove the contempt, and in the long term the respect shown for court orders will be undermined. In the case at bar, this argument appears to me to be of little weight, since the appellants have already succeeded in obtaining one finding of contempt of court against one of the respondents, on the basis of evidence they had gathered themselves (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., Sup. Ct. St‑François, No. 450‑05‑000518‑858, October 11, 1988, unreported). The appellants did not submit any decision, study or commentary in support of this argument. Since it has been a rule in common law for many years that the accused is not compellable, if the problems foreseen by the appellants had developed in common law, they would certainly have come to the attention of the courts or of legal authors. Furthermore, because of the public law aspects of contempt of court, particularly that of imprisonment, it must be subject to certain rules of fundamental justice, even if its effectiveness might thereby be reduced. I entirely share the opinion of the Court of Appeal that contempt of court cannot be reduced to a simple means of enforcing judgments. If contempt of court (and the attendant possibility of imprisonment) were found to be inadequate in some cases, precisely because it is being used essentially to enforce judgments, it would then be for the legislature to provide for other means of enforcement, if necessary.
C. Articles 295, 302 and 309 of the Code of Civil Procedure
These three articles set out the general rule as to the compellability of witnesses in Quebec judicial law. The appellants submit that these articles should also apply to contempt of court proceedings under the Code of Civil Procedure, in the absence of any provision to the contrary in the Code itself.
It is well settled that specific rules prevail over general rules. Here, arts. 295, 302 and 309 C.C.P. must give way to the rule that a respondent cited for contempt of court is not compellable, which applies within the framework of a very special process under the Code of Civil Procedure itself.
The absence of any express exception in the Code of Civil Procedure is not a deciding factor. This Court has recognized that "[t]he Civil Code does not contain the whole of civil law. It is based on principles that are not all expressed there, which it is up to case law and doctrine to develop" (Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67, at p. 76; see also Lapierre v. Attorney General of Quebec, [1985] 1 S.C.R. 241). As J. E. C. Brierley stated in "Quebec's `Common Laws' (Droits communs): How Many Are There?", in Mélanges Louis‑Philippe Pigeon (1989), 109, at p. 116:
Indeed it can be argued that in the civil law tradition of France and Quebec, the recognition of the ultimate insufficiency of legislative enactment is a central tenet of the very philosophy of a Civil Code as a style of law‑making.
Like the Civil Code, the Code of Civil Procedure does not constitute an exhaustive statement of the law. Quebec procedure is indeed based on the Code of Civil Procedure, but the latter is not its only expression.
While the Civil Code is based in large part on the civil law which Quebec inherited from France, the lineage of the Code of Civil Procedure is more complex. As J.‑M. Brisson shows in La formation d'un droit mixte: l'évolution de la procédure civile de 1774 à 1867 (1986), local rules and customs existed, alongside the Ordinance of Louis XIV of April 1667 and the English law of that period, well before the codification. Those rules and customs, during both the French and English periods, adapted, supplemented and modified the Old Continent law. The great value of the first Code of Civil Procedure (1867), which came into force under the Act respecting the Code of Civil Procedure of Lower Canada, S. Prov. C. 1866, 29‑30 Vict., c. 25, was precisely that it brought these scattered elements together in one place. After Confederation, constitutional constraints stemming from the division of powers in respect of the administration of justice and organization of the courts added to the complexity of the sources of Quebec procedural law.
The 1867 Code did not aspire to completeness, since the penultimate article of that Code, art. 1360, expressly continued the law prior to the Code in effect:
1360. The laws concerning procedure in force at the time of the coming into force of this code, are abrogated:
1. In all cases in which this code contains any provision having expressly or impliedly that effect;
2. In all cases in which such laws are contrary to or inconsistent with any provision of this code, or in which express provision is made by the Code upon the particular matter to which such laws relate;
. . .
Article 1 of its successor, the 1897 Code of Civil Procedure, which came into force under the Act respecting the Code of Civil Procedure of the Province of Quebec, S.Q. 1897, c. 48, adopted this provision virtually in its entirety. Article 1 of the present Code of Civil Procedure, as it read at the time the Code was enacted in 1965, S.Q. 1965, c. 80, merely repealed the Code of procedure then in force, and said nothing about the rest of the procedural law. Moreover, both art. 2 C.C.P., which makes procedure the servant of the law, and arts. 20 and 46 C.C.P., which allow the court to supplement the Code, imply that procedural law is not limited to the Code. Accordingly, there are rules of procedure outside the Code of Civil Procedure which supplement it.
In the case at bar, the Code of Civil Procedure does contain the basis of the exceptional rules which apply to contempt of court. They are supplemented by rules which find their origin in scholarly opinion and the cases, and which are made necessary by the nature of contempt and the particular sanction attached to it. As I noted earlier, contempt of court is a highly specific process within the Code of Civil Procedure. While the Code sets out in general terms the procedure which applies to contempt of court proceedings, when provisions of such broad application as arts. 295, 302 and 309 C.C.P. conflict with a rule as fundamental to the special rules of contempt as the non‑compellability of the respondent, these provisions cannot prevail.
VI. Conclusion
I am of the opinion that this appeal should be dismissed, without costs in this Court.
The following are the reasons delivered by
//L'Heureux-Dubé J.//
L'Heureux‑Dubé J. (dissenting) ‑‑ I have had the advantage of reading the reasons of my colleague Gonthier J. and, with all due respect, I cannot agree. For the reasons that follow, I am of the view that the general rule regarding the compellability of the parties in a civil proceeding should be applied in this appeal.
Facts
In order to gain a better understanding of the issues in the case at bar, it is necessary to look closely at the facts which gave rise to it.
The appellant Vidéotron Ltée operates a cable television business throughout eastern Canada pursuant to licences issued by the Canadian Radio‑television and Telecommunications Commission ("CRTC"). The appellant Premier Choix: TVEC Inc. operates a pay television business throughout eastern Canada pursuant to a licence issued by the CRTC. Its service is transmitted by satellite to cable operators, including Vidéotron Ltée. The latter transmits this service to its subscribers along with other services available on cable. Since it is of the very essence of a pay television system that users bear the cost, the two appellant companies control access to this service. This control is exercised by means of a signal scrambling system which makes the reception of pay television services unintelligible. In order to view the pay television services in question, the television viewer must also be a subscriber to the Vidéotron Ltée cable network. At the time of subscription Vidéotron Ltée leases the television viewer a decoder which is programmed to descramble signals for the pay television services for which the subscriber has paid the relevant subscription fees. These fees include a $4 per month rental charge for the decoder. The subscription fees are used to pay applicable federal and provincial taxes, operating costs, CRTC fees and charges payable to Premier Choix and other suppliers of the pay television service. The remainder is income for Vidéotron Ltée. The appellants' income is thus directly dependent on the number of subscribers.
The individual respondents here are directors or representatives of the respondent companies which manufacture and market a decoder (the Microlec decoder) similar to that supplied by Vidéotron Ltée to its subscribers. Its sole function is to descramble pay television signals. With the use of this decoder, someone can access the pay television service without paying the subscription fees charged by the cable operator. The respondents admitted that over 20,000 Microlec decoders were sold between 1983 and 1986.
In 1986, the appellants brought proceedings against the respondents for an injunction to prohibit them from manufacturing or marketing Microl