Canada (Human Rights Commission) v. Warman

Canada (Human Rights Commission) v. Warman
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-10-26
Neutral citation
2011 FCA 297
File numbers
A-468-10
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20111026
Docket: A-468-10
Citation: 2011 FCA 297
CORAM: NOËL J.A.
PELLETIER J.A.
DAWSON J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
RICHARD WARMAN
and
TERRY TREMAINE
Respondents
Heard at Vancouver, British Columbia, on September 19, 2011.
Judgment delivered at Ottawa, Ontario, on October 26, 2011.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: DAWSON J.A.
DISSENTING REASONS BY: PELLETIER J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20111026
Docket: A-468-10
Citation: 2011 FCA 297
CORAM: NOËL J.A.
PELLETIER J.A.
DAWSON J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
RICHARD WARMAN
and
TERRY TREMAINE
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal by the Canadian Human Rights Commission (the Commission or the appellant) from a decision of Harrington J. of the Federal Court (the Federal Court Judge) wherein he dismissed the contempt proceedings brought against Terry Tremaine (the respondent or Mr. Tremaine) based on his alleged failure to abide by the cease and desist order issued against him by the Canadian Human Rights Tribunal (the Tribunal).
[2] Although the Federal Court Judge found that Mr. Tremaine acted in contempt of the order of the Tribunal, he held that contempt could only be pronounced for a deliberate breach of an order of the Federal Court and that as at the material time Mr. Tremaine was not advised that the Tribunal order had been registered in the Federal Court, he could not be found in contempt. The appellant contends that in so holding, the Federal Court Judge committed a number of legal errors.
[3] For the reasons which follow, I am of the view that the appeal should be allowed and that Mr. Tremaine should be found in contempt for having defied the order of the Tribunal.
FACTUAL BACKGROUND
[4] On October 13, 2004, Richard Warman (the complainant) filed a complaint against the respondent under section 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) with the Commission. The complainant, a former employee of the Commission, stated that he has been monitoring for many years the activities of “white supremacist” and “neo-Nazi groups” in Canada and abroad. The complainant contended that the respondent had engaged in discriminatory practices on the grounds of religion, national or ethnic origin, race and color on the Internet. The Commission investigated the complaint and referred it to the Tribunal.
[5] On February 2, 2007, the Tribunal found the complaint to be well founded. At the hearing, the complainant testified that he had been monitoring the website “stormfront.org” for many years and that he specifically investigated postings by someone with the pseudonym “mathdoktor99”. It is not disputed that the identity of the author of the postings under the pseudonym “mathdoktor99” is Mr. Tremaine (Tribunal reasons, para. 52). The complainant also referred the Tribunal to the creation by the respondent of the website “nspcanada.nsfhost.com” where the respondent posted what he claimed to be the political program of the National-Socialist Party of Canada, a party “dedicated to the creation of a White racialist state in Canada” (Tribunal reasons, paras. 80 and 81).
[6] The Tribunal reviewed the evidence and concluded that the messages conveyed by the respondent were likely to expose persons of the Jewish faith, Blacks and other non-white minorities to hatred or contempt and that a discriminatory practice under subsection 13(1) of the Act had been established (Tribunal reasons, paras. 140 to 142). The Tribunal issued a cease and desist order and fined Mr. Tremaine $4,000. The order reads in part (Tribunal reasons, para. 169):
…, the Tribunal finds that the complaint against [Mr.] Tremaine is substantiated and orders that:
1. [Mr.] Tremaine, and any other individuals who act in concert with Mr. Tremaine, cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, material of the type that was found to violate [sub]section 13(1) in the present case, or any other message of a substantially similar content, that are likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination, contrary to [sub]section 13(1) of the [Act].
…
[7] On February 13, 2007, the Commission filed a certified copy of the Tribunal’s order with the Federal Court Registry, pursuant to section 57 of the Act (appeal book, p. 73). The respondent was not given notification of this procedure.
[8] The respondent sought judicial review of the Tribunal’s order before the Federal Court. On September 12, 2008, in Warman v. Tremaine, 2008 FC 1032; [2008] F.C.J. No. 1265, Snider J. dismissed his application. The respondent did not appeal.
[9] Since the issuance of the Tribunal’s order, many of the messages that had been found to violate section 13 of the Act by the Tribunal have remained on the Internet and a number of additional messages have been posted. The complainant has filed two affidavits attesting to these “fresh” messages and the continued presence of the earlier ones as of February 12, 2009 and March 19, 2010 respectively (appeal book, vol. 1, p.122 and vol. 3, p. 713).
[10] In March 2009, the Commission moved for a show cause order pursuant to rule 467 of the Federal Courts Rules, S.O.R./98-106 (the Federal Courts Rules). On June 22, 2010 the Federal Court Judge, satisfied that a prima facie case of contempt had been made out, issued a show cause order in Warman v. Tremaine, 2010 FC 680; [2010] F.C.J. No. 1002.
DECISION OF THE FEDERAL COURT
[11] The Federal Court Judge first questioned whether the case before him was one of criminal or civil contempt. He proceeded to conduct his analysis on the basis that civil contempt was being alleged (reasons, para. 9).
[12] The Federal Court Judge adopted the tripartite test for civil contempt set out in Prescott-Russell Services for Children and Adults v. G.(N.), (2006), 82 O.R. (3d) 686 [Prescott-Russell]. Focusing on the second element of that test, i.e. that there must be a deliberate breach of an order, the Federal Court Judge identified Mr. Tremaine’s “overriding defence” as follows (reasons, para. 23):
… he did not know the Tribunal’s order had been registered with this Court until August 2010, when he was specifically so served. He had no intention of defying this Court. …
The Federal Court Judge later identified March 2009 rather than August 2010, as the date on which Mr. Tremaine was made aware of this registration, a finding which is not being challenged in this appeal (reasons, para. 25).
[13] As to the offensive material which remained on the Internet after that date, the Federal Court Judge noted Mr. Tremaine’s further argument that the order of the Tribunal was not sufficiently clear to require him to remove this material (reasons, paras. 22 and 29).
[14] Addressing the argument that Mr. Tremaine was not notified that the order had been registered, the Federal Court Judge acknowledged that there is no statutory requirement that this be done (reasons, para. 6). However, he found that the common law of contempt requires the Commission to establish that the alleged contemnor had knowledge of a “Court order” as opposed to an order of a lower Tribunal. In this respect, the Federal Court Judge cited two passages from Bhatnager v. Canada (Minister of Employment and Immigration), [1990] S.C.J. No. 62; [1990] 2 S.C.R. 217 [Bhatnager] and Canada (Human Rights Commission) v. Taylor, [1990] S.C.J. No. 129; [1990] 3 S.C.R. 892; [Taylor] as authority for the proposition that there must be a breach of an order of the Court before one can be pronounced in contempt of Court (reasons, paras. 24 and 27).
[15] While the respondent had knowledge of the Tribunal’s February 2, 2007 order, he did not have knowledge that the order had been registered with the Court until at least March 2009 – when a copy of the certificate was included in the show cause materials (reasons, para. 25). As such, he could not be found guilty of contempt with respect to material posted on the Internet before that date (reasons, para. 28).
[16] As to the material which Mr. Tremaine allowed to remain on the Internet after March 2009, the Federal Court Judge accepted the respondent’s argument that the order did not make it sufficiently clear that he was to remove this material (reasons, para. 29). In his view, the reference to “material of the type” in the Tribunal’s order refers to material that is distinct and separate from the material which was actually found by the Tribunal to violate subsection 13(1).
[17] Having so found, the Federal Court Judge dismissed the application brought by the Commission seeking to have Mr. Tremaine found guilty of contempt (reasons, paras. 28 and 29).
[18] Although it was not necessary for him to do so, the Federal Court Judge addressed the other elements of the respondent’s defence. Specifically, he rejected the contention that the respondent did not “communicate” within the meaning of subsection 13(1) of the Act. This argument was dismissed for a variety of reasons, notably on account of the fact that it had not been raised before the Tribunal or before the Federal Court in the prior proceedings (reasons, paras. 33 and 35). Finally, the argument that Mr. Tremaine was prohibited from accessing the Internet as a result of a bail condition in criminal proceedings against him in Saskatchewan was also dismissed as that condition was only issued in January 2008, and had no bearing on his contemptuous behaviour.
RELEVANT LEGISLATIVE PROVISIONS
[19] Section 57 of the Act provides for the enforcement of orders of the Tribunal as follows:
Enforcement of order
57. An order under section 53 or 54 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy.
Exécution des ordonnances
57. Aux fins de leur exécution, les ordonnances rendues en vertu des articles 53 et 54 peuvent, selon la procédure habituelle ou dès que la Commission en dépose au greffe de la Cour fédérale une copie certifiée conforme, être assimilées aux ordonnances rendues par celle-ci.
[20] Rule 424 of the Federal Courts Rules provides for the enforcement of such orders through the Federal Court as follows:
Enforcement of order of tribunal
424. (1) Where under an Act of Parliament the Court is authorized to enforce an order of a tribunal and no other procedure is required by or under that Act, the order may be enforced under this Part.
Filing of order
(2) An order referred to in subsection (1) shall be filed together with a certificate from the tribunal, or an affidavit of a person authorized to file such an order, attesting to the authenticity of the order.
Exécution de l’ordonnance d’un office fédéral
424. (1) Lorsque la Cour est autorisée, en vertu d’une loi fédérale, à poursuivre l’exécution forcée de l’ordonnance d’un office fédéral et qu’aucune autre procédure n’est prévue aux termes de cette loi ou de ses textes d’application, l’exécution forcée de l’ordonnance est assujettie à la présente partie.
Dépôt de l’ordonnance
(2) L’ordonnance visée au paragraphe (1) est déposée avec un certificat de l’office fédéral ou un affidavit de la personne autorisée à la déposer, attestant l’authenticité de l’ordonnance.
[21] Rules 466 to 472 of the Federal Courts Rules have codified the law of contempt as follows:
Contempt
466. Subject to rule 467, a person is guilty of contempt of Court who
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
Right to a hearing
467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
Ex parte motion
(2) A motion for an order under subsection (1) may be made ex parte.
Burden of proof
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
Service of contempt order
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.
Contempt in presence of a judge
468. In a case of urgency, a person may be found in contempt of Court for an act committed in the presence of a judge and condemned at once, if the person has been called on to justify his or her behaviour.
Burden of proof
469. A finding of contempt shall be based on proof beyond a reasonable doubt.
Evidence to be oral
470. (1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.
Testimony not compellable
(2) A person alleged to be in contempt may not be compelled to testify.
Assistance of Attorney General
471. Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada in relation to any proceedings for contempt.
Penalty
472. Where a person is found to be in contempt, a judge may order that
(a) the person be imprisoned for a period of less than five years or until the person complies with the order;
(b) the person be imprisoned for a period of less than five years if the person fails to comply with the order;
(c) the person pay a fine;
(d) the person do or refrain from doing any act
(e) in respect of a person referred to in rule 429, the person's property be sequestered; and
(f) the person pay costs.
Outrage
466. Sous réserve de la règle 467, est coupable d’outrage au tribunal quiconque :
a) étant présent à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le silence ou manifeste son approbation ou sa désapprobation du déroulement de l’instance;
b) désobéit à un moyen de contrainte ou à une ordonnance de la Cour;
c) agit de façon à entraver la bonne administration de la justice ou à porter atteinte à l’autorité ou à la dignité de la Cour;
d) étant un fonctionnaire de la Cour, n’accomplit pas ses fonctions;
e) étant un shérif ou un huissier, n’exécute pas immédiatement un bref ou ne dresse pas le procès-verbal d’exécution, ou enfreint une règle dont la violation le rend passible d’une peine.
Droit à une audience
467. (1) Sous réserve de la règle 468, avant qu’une personne puisse être reconnue coupable d’outrage au tribunal, une ordonnance, rendue sur requête d’une personne ayant un intérêt dans l’instance ou sur l’initiative de la Cour, doit lui être signifiée. Cette ordonnance lui enjoint :
a) de comparaître devant un juge aux date, heure et lieu précisés;
b) d’être prête à entendre la preuve de l’acte qui lui est reproché, dont une description suffisamment détaillée est donnée pour lui permettre de connaître la nature des accusations portées contre elle;
c) d’être prête à présenter une défense.
Requête ex parte
(2) Une requête peut être présentée ex parte pour obtenir l’ordonnance visée au paragraphe (1).
Fardeau de preuve
(3) La Cour peut rendre l’ordonnance visée au paragraphe (1) si elle est d’avis qu’il existe une preuve prima facie de l’outrage reproché.
Signification de l’ordonnance
(4) Sauf ordonnance contraire de la Cour, l’ordonnance visée au paragraphe (1) et les documents à l’appui sont signifiés à personne.
Outrage en présence d’un juge
468. En cas d’urgence, une personne peut être reconnue coupable d’outrage au tribunal pour un acte commis en présence d’un juge et condamnée sur-le-champ, pourvu qu’on lui ait demandé de justifier son comportement.
Fardeau de preuve
469. La déclaration de culpabilité dans le cas d’outrage au tribunal est fondée sur une preuve hors de tout doute raisonnable.
Témoignages oraux
470. (1) Sauf directives contraires de la Cour, les témoignages dans le cadre d’une requête pour une ordonnance d’outrage au tribunal, sauf celle visée au paragraphe 467(1), sont donnés oralement.
Témoignage facultatif
(2) La personne à qui l’outrage au tribunal est reproché ne peut être contrainte à témoigner.
Assistance du procureur général
471. La Cour peut, si elle l’estime nécessaire, demander l’assistance du procureur général du Canada dans les instances pour outrage au tribunal.
Peine
472. Lorsqu’une personne est reconnue coupable d’outrage au tribunal, le juge peut ordonner :
a) qu’elle soit incarcérée pour une période de moins de cinq ans ou jusqu’à ce qu’elle se conforme à l’ordonnance;
b) qu’elle soit incarcérée pour une période de moins de cinq ans si elle ne se conforme pas à l’ordonnance;
c) qu’elle paie une amende;
d) qu’elle accomplisse un acte ou s’abstienne de l’accomplir;
e) que les biens de la personne soient mis sous séquestre, dans le cas visé à la règle 429;
f) qu’elle soit condamnée aux dépens.
[22] Finally, it is useful to reproduce section 13 of the Act:
Hate messages
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Interpretation
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
Interpretation
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
Propagande haineuse
13. (1) Constitue un acte discriminatoire le fait, pour une personne ou un groupe de personnes agissant d’un commun accord, d’utiliser ou de faire utiliser un téléphone de façon répétée en recourant ou en faisant recourir aux services d’une entreprise de télécommunication relevant de la compétence du Parlement pour aborder ou faire aborder des questions susceptibles d’exposer à la haine ou au mépris des personnes appartenant à un groupe identifiable sur la base des critères énoncés à l’article 3.
Interprétation
(2) Il demeure entendu que le paragraphe (1) s’applique à l’utilisation d’un ordinateur, d’un ensemble d’ordinateurs connectés ou reliés les uns aux autres, notamment d’Internet, ou de tout autre moyen de communication semblable mais qu’il ne s’applique pas dans les cas où les services d’une entreprise de radiodiffusion sont utilisés.
Interprétation
(3) Pour l’application du présent article, le propriétaire ou exploitant d’une entreprise de télécommunication ne commet pas un acte discriminatoire du seul fait que des tiers ont utilisé ses installations pour aborder des questions visées au paragraphe (1).
POSITION OF THE APPELLANT
[23] The appellant submits that the finding by the Federal Court Judge that the respondent was in contempt of the Tribunal’s order in circumstances where this order had been filed in the Federal Court could only lead to a pronouncement of contempt, and that the Federal Court Judge erred in holding otherwise.
[24] Like the Federal Court Judge, the appellant submits that the test for civil contempt is found in Prescott-Russell and requires a clear and unequivocal order and a deliberate intent to disobey the order, beyond a reasonable doubt. Unlike the Federal Court Judge, however the appellant submits that it is knowledge of the order of the Tribunal that is material.
[25] The appellant submits that the Federal Court Judge erred in determining that the order of the Tribunal “became” an order of the Federal Court for purposes of section 57 of the Act. It points to the French text where it is stated that the order is “assimilé” to an order of the Federal Court. According to the appellant, the order thus remains an order of the Tribunal (appellant’s memorandum, para. 59).
[26] The appellant argues that aside from the requirements set out in section 57 of the Act and rule 424 of the Federal Courts Rules, there exists no other obligation to enforce an order of the Tribunal as an order of the Federal Court. Nowhere in the statutes is knowledge of registration required. The appellant notes that the certificate issued by the Federal Court is not signed by a judge, contains no obligations and does not contain any reasons.
[27] Alternatively, the appellant submits that rule 466(c) of the Federal Courts Rules applies. It relies on Baxter Travenol Laboratories v. Cutter (Canada), [1983] 2 S.C.R. 388 [Baxter Travenol], a case in which the Supreme Court ruled that as soon as a judge has made his reasons public, disobeying them would constitute contempt, even if the contemptuous acts were to occur before the formal judgment is entered. The Supreme Court reasoned that holding otherwise would obstruct the course of justice and “subvert the whole process of going to court to settle disputes” (Baxter Travenol, p. 397).
POSITION OF THE RESPONDENT
[28] The main contention of the respondent is that the act of filing the Tribunal order in Federal Court is a separate and distinct discretionary act and is not automatic (respondent’s memorandum, para. 2). He argues that the Federal Court Judge correctly applied the Prescott-Russell test for civil contempt. Like the Federal Court Judge, the respondent relies on Bhatnager to suggest that the alleged contemnor must have personal knowledge of the Court order and that this must be proven beyond a reasonable doubt (respondent’s memorandum, para 16). The respondent also refers to Telus Mobility v. Telecommunications Workers Union, 2002 FCT 656 [Telus], wherein a Prothonotary of the Federal Court found that an arbitrator’s order under the Canada Labour Code, R.S.C. 1985, c. L-2, only came into effect when it had been filed with the Federal Court and served on all the relevant parties – the mere filing being insufficient (Telus, para. 4). The respondent emphasizes that Mr. Tremaine did not know that an order had been filed in the Federal Court, and suggests that the Commission might have purposefully kept him in the dark so as to bait him (respondent’s memorandum, para 18).
[29] In addition, the respondent contends that he did not communicate or cause to be communicated subsequent to the Tribunal order. He submits that the Court order is clear and only required Mr. Tremaine to cease communicating or causing to be communicated. The respondent submits that the data that was already uploaded to the Internet prior to the order cannot be understood to have been communicated since the order, as communication requires transmission of a thought. He understands the order to only have targeted new acts of communication. The respondent relies on Goldman v. R., [1980] 1 S.C.R. 976; and Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, (1999) 1 C.P.R. (4th) 417, for the interpretation of a “communication”. He further contends that uploading information to a foreign server was not an act of communication. It is rather the person downloading the information that performed the communication (respondent’s memorandum, para. 13).
[30] With respect to this last contention, I note that despite the use of the words “foreign web server” (respondent’s memorandum, para. 14) no submissions are made with reference to the fact that the server is located outside Canada.
[31] Finally, the respondent recalls that he was prohibited from accessing the Internet by a bail order and that as such he was precluded from removing the messages during the period of the alleged contempt.
ANALYSIS
Knowledge of a “Court order” as a pre-requisite of contempt
[32] It is important to note at the onset that Mr. Tremaine does not defend his case on the basis that he questioned whether the order of the Tribunal could legally be enforced because he was not informed that it had been registered with the Federal Court. Mr. Tremaine made it clear during his examination in chief that he was oblivious to the section 57 registration procedure (transcript, vol. 3, p. 474, lines 7 to 15).
[33] According to Mr. Tremaine’s testimony, the reason why he chose to disregard the order of the Tribunal is that he had contempt for the Tribunal (idem, p. 476, lines 8 to 15) and believed that his views had to be addressed regardless of the Tribunal order (idem, p. 564, lines 5 to 7; see also appeal book, vol. 4, p. 964):
My purpose in ignoring the cease and desist order was to address the urgent matter of impending white extinction.
[34] Relying on Mr. Tremaine’s testimony, the Federal Court Judge had no difficulty in finding that Mr. Tremaine was in contempt of the order of the Tribunal (reasons, para. 1). However, he held that contempt could only be pronounced for the breach of an order of the Federal Court, and that as a result, Mr. Tremaine could not be found guilty of contempt with respect to anything done before March 2009, when he first became aware of the registration of the order of the Tribunal in the Federal Court.
[35] Both parties submitted, and the Federal Court Judge agreed, that the relevant test for civil contempt is that set out by the Ontario Court of Appeal in Prescott-Russell. Only the second prong of this test is in issue in this case (Prescott-Russell, para. 27):
The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and willfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. [Citations omitted.]
[My emphasis]
[36] As the Federal Court Judge made clear, a person cannot knowingly disobey an order unless he or she has knowledge of it. The issue in this case is whether the Federal Court Judge could hold, in the specific context where an order of the Tribunal has been filed with the Federal Court for enforcement purposes pursuant to section 57 of the Act, that knowledge of the Tribunal order alone cannot give rise to a finding of contempt. The issue so described gives rise to a question of law which stands to be assessed on a standard of correctness.
[37] In holding that knowledge of a “Court order” was required, the Federal Court Judge relied on brief passages from two decisions of the Supreme Court where knowledge of a Court order was said to be a condition precedent to a finding of contempt (reasons, paras. 24 and 27). However, neither decision dealt with the issue with which we are concerned. In Taylor, the central element of the analysis is that there must be knowledge by the alleged contemnor that he or she is breaching an order (Taylor, paras. 71 and 72). In Bhatnager, the reference by Sopinka J. to a Court order is explained by the fact that the only order sought to be enforced in that case was an order of the Federal Court. Again, the central element of the analysis is knowledge that an order is being breached.
[38] In my view, the issue raised in this appeal turns on the registration provision set out in section 57 of the Act, and in particular whether the order enforced under the authority of that provision is the order of the Tribunal or the order of the Court.
[39] The answer to that question is relatively straight forward when one considers that the only order being enforced under this scheme is that of the Tribunal and that there is to-day no legal principle that restricts the use of contempt powers to orders issued by superior Courts.
[40] This last proposition flows from the decision of the Supreme Court in United Nurses of Alberta v. Alberta (Attorney General), [1992] S.C.J. No. 37; [1992] 1 S.C.R. 901 [United Nurses]. The issue in that case turned on subsection 142(7) of the Labour Relations Act of Alberta, R.S.A. 1980, c. L-1.1, a provision analogous to section 57 of the Act:
142. (7) If any directive made by the Board pursuant to subsection (5) or (6) is not complied with, the Board may, …, file a copy of the directive with the clerk of the Court [of Queen’s Bench] … and thereupon the directive is enforceable as a judgment or order of the Court.
[41] At issue was whether criminal contempt proceedings could validly be initiated further to the filing of a Board directive under that provision with the Alberta Court of Queen’s Bench. One of the arguments made was that at common law, the power to punish for criminal contempt is available only in relation to orders of superior Courts, and since the directive sought to be enforced was that of a lower Tribunal, the Court did not have the jurisdiction to invoke its contempt powers in support of it (United Nurses, para. 70).
[42] McLachlin J. (as she then was) writing for the majority, rejected this argument. She explained that although Board orders are not the same as Court orders, that does not mean that they are any less enforceable by superior Courts through contempt proceedings (United Nurses, para. 71). In so holding, she adopted the reasoning of Blair J.A. in Ajax and Pickering General Hospital v. Canadian Union of Public Employees, Local 906, 132 D.L.R. (3d) 270; [1981] O.J. No. 1121 [Ajax], who held that a Board order issued pursuant to the equivalent provision of the Ontario Labour Relations Act, R.S.O. 1980, c. 228, was enforceable as such from the time it was filed in the Court (Ajax, paras. 63 to 83).
[43] Earlier on in her reasons, McLachlin J. explained that there was a time when only orders of superior Courts were considered to be deserving of the respect which contempt proceedings are intended to secure. However, that time has passed; the question whether criminal contempt powers should be available with respect to orders of lower tribunals no longer raises an issue of jurisdiction but one of policy (United Nurses, para. 69):
It questions whether the legislature should enact that breach of a tribunal order is subject to the same consequences as breach of a court order. The power of the legislature to do this cannot be questioned; legislatures routinely make changes in the law which empower or require federally appointed judges to impose certain remedies. Thus the question is one of policy; policy moreover, which can be debated. Against the argument that the contempt power is so serious that it should only be available for breaches of orders actually made by s. 96 judges, can be raised the argument that in reality important portions of our law are administered not by s. 96 judges but by inferior tribunals, and that these decisions, like court decisions, form part of the law and deserve respect and consequently the support of the contempt power.
[44] It is now settled law that decisions of lower Tribunals can be enforced on their own account through contempt proceedings because they, like decisions of the superior Courts, are considered by the legislator to be deserving of the respect which the contempt powers are intended to impose. This is what section 57 achieves with respect to orders made by the Tribunal under sections 53 and 54 of the Act.
[45] It follows that in the present case, there is only one order – the Tribunal order – which is enforced by the Federal Court pursuant to section 57 as though it was an order of that Court. This intent is best reflected by the French text according to which: “les ordonnances rendues en vertu des articles 53 et 54 […] peuvent […] être assimilées aux ordonnances rendues par celle-ci [i.e., la Cour fédérale] ”.
[46] The Federal Court Judge therefore erred when he held that the deliberate violation of the order of the Tribunal could not in itself give rise to a finding of contempt (reasons, para. 28).
[47] Counsel for Mr. Tremaine maintains that even if the violation of the order of the Tribunal can give rise to a finding of contempt, notice that the order of the Tribunal was registered with the Federal Court remains a pre-requisite.
[48] I note that there is no requirement in any of the statutory law with which we are concerned – whether it be the Act, the Federal Courts Act or Rules – that notice of registration be given. It follows that if there is such a requirement, it must be shown to exist under the common law.
[49] The only case on point appears to be the decision of Prothonotary Hargrave in Telus where he found, relying on Bhatnager, that knowledge of the “filed order”, as opposed to the order itself, was a pre-requisite (Telus, paras. 3, 4 and 5). However, as explained earlier, Bhatnager was not a registration case. The issue was whether acceptance of service of an order of the Federal Court by the solicitor for the two Ministers who were targeted by the order was sufficient to impart knowledge of that order on the Ministers so as to make them liable for contempt. Sopinka J., writing for the Court, held that it was not. According to him, the only common law requirement is that there be personal service or actual personal knowledge of the order sought to be enforced (Bhatnager, para. 16).
[50] It is common ground in this case that Mr. Tremaine had this knowledge.
[51] Counsel for Mr. Tremaine correctly points out that in United Nurses, as well as in all the cases that were brought to our attention where an analogous enforcement procedure was used, the evidence shows that the alleged contemnor had been notified of the registration of the Tribunal or Board order.
[52] It is easy to understand why that is so. As alluded to earlier, questions can arise about the enforceability of such orders before they are registered. However, such questions disappear altogether when the order is registered. In the present case, the order had been registered when the alleged acts of contempt took place and nothing turns on the fact that Mr. Tremaine was not so advised as he made it clear that this had no impact on the course of action which he chose to take.
[53] In my view, the only pre-requisite which can be derived from the Supreme Court’s jurisprudence with respect to the second component of the civil contempt test is that there must be actual knowledge of a legally binding order such that it can be shown beyond a reasonable doubt that the order is being disobeyed deliberately or willfully by the alleged contemnor. This is what the evidence establishes in the present case.
[54] Given that all the contemptuous acts were committed after Mr. Tremaine became aware of the Tribunal order, it is not necessary to address the appellant’s alternative argument based on Baxter Travenol.
Scope of the Tribunal order
[55] The Federal Court Judge also accepted the respondent’s argument that the order of the Tribunal was too vague to require him to remove the postings which the Tribunal had found to be offensive. Although it would be a strange result if the order of the Tribunal was construed as permitting the respondent to leave on the Internet the very material which the Tribunal found to be offensive, it is not necessary to spend time on this issue because the messages posted by Mr. Tremaine after he was made aware of the Tribunal order are clearly in breach of it. Indeed, counsel for the respondent acknowledged that the order requires Mr. Tremaine “ to cease and desist, which is to stop and not do again” (respondent’s memorandum, para. 22 (my emphasis)) and Mr. Tremaine chose to do exactly the opposite (appeal book, vol. 1, pp. 249 and 250; vol. 2, pp. 294, 301 to 305, 312 to 315, 356 to 359, 366 to 368, 457 to 463). I therefore find that Mr. Tremaine acted in contempt of the order of the Tribunal when he continued to post offensive messages after February 2, 2007 when he became aware of the Tribunal order.
Did the respondent “communicate”?
[56] The respondent notes that the order uses the language “communicating telephonically”, without further description (respondent’s memorandum, paras. 8 and 9). He contends that this is not sufficiently precise to capture communications which take place on the Internet.
[57] In this respect, I note, as the Federal Court Judge did, that the Tribunal order itself cannot be dissociated from the reasons given for its issuance (reasons, para 34). When regard is had to the reasons, it is clear that the respondent was prohibited from communicating on the Internet – (see for example, the decision of the Tribunal, para. 149).
[58] The respondent further submits that the mere uploading of data on a foreign web server does not constitute an act of communication (respondent’s memorandum, paras. 13 to 15). Rather, the respondent maintains that (idem, para. 13):
… Any communication of Mr. Tremaine’s thoughts, ideas, words or information resulted from the new intervening act of the person who downloaded them, in this case the complainant, Richard Warman.
[59] There is again no merit to this contention. In the present case, the evidence establishes beyond a reasonable doubt that Mr. Tremaine placed his messages on a website where they could be and were accessed at least by like minded individuals (see for example, appeal book, vol. 1, pp. 249 and 250; vol. 2, pp. 294, 301 to 305 , 312 to 315, 356 to 359). Nothing more is required in order to establish that Mr. Tremaine “communicated” his messages as section 13 contemplates (section 13 of the Act).
The respondent’s defence relating to the bail order
[60] Finally, the respondent argues that he could not remove the Internet messages because his bail conditions prohibited him from accessing the Internet. However, as found by the Federal Court Judge, the bail conditions were only issued in January 2008, and therefore cannot have had any bearing on Mr. Tremaine’s contemptuous behaviour before that date. Furthermore, the record reveals that Mr. Tremaine did access the Internet after January 2008 despite the conditions imposed on him (appeal book, vol. 4, p. 959).
DISPOSITION
[61] For these reasons, I would allow the appeal, set aside the decision of the Federal Co