[cross posted from https://cfe.ryerson.ca/blog/2017/05/our-anxious-supreme-court]

One gets the sense that the Supreme Court of Canada does not have a good feel for free speech questions. It took some time, for instance, for a majority of the Court to acknowledge that legal constraints might ‘chill’ free speech. The Court confidently proclaimed, on more than one occasion, that civil and criminal legal prohibitions should not be expected to deter speakers. 

Only recently did the Court acknowledge this possibility and, accordingly, relaxed the law of libel so as to allow a new defence of responsible communication on matters of public interest. The Court did so only after other commonwealth Courts had taken a lead in relaxing the common law of libel. It was this reform that enabled the press to report freely on the misdeeds of the late Toronto Mayor, Rob Ford, without the worry of a lawsuit.

The Court recently had another opportunity to deepen their commitment to free speech. In a closely divided opinion, they declined to do so. Only the group of four minority justices addressed the issue. They did so, however, in a disquieting fashion. 

At issue was a trial court finding of contempt of court. Quebec student leader, Gabriel Nadeau-Dubois, was found in contempt for encouraging students to ’obstruct’ or ‘impede access’ to classrooms. Nadeau-Dubois led one of the largest student groups active in Quebec’s ‘maple spring,’ shutting down universities and CEGEPs in the province because of threatened tuition increases. The question for the Supreme Court was whether Nadeau-Dubois intentionally encouraged breaking of the court order during a CBC French-language TV interview. When asked by the interviewer if he would still encourage picketing in light of ‘injunctions all over the place,’ Nadeau-Dubois replied that ‘such attempts to force students back to class … never work.’ ‘[S]peaking generally,’ he continued, it is ‘perfectly legitimate for people to take action to uphold the democratic choice that was made to go on strike … we find it perfectly legitimate to do what they have to do to enforce the strike vote, and if that takes picket lines, we think it’s a perfectly legitimate way to do it.’

Jean-François Morasse, attending his final year at Université Laval, initially secured an injunction against the university and students. He subsequently brought motion for contempt of court against Nadeau-Dubois for his statement to the media. Quebec Superior Court Judge Jacques acknowledged that, because Nadeau-Dubois was not served with the injunction, he could not be found guilty of violating that order. Instead, he held Nadeau-Dubois liable for having knowledge of the injunction and, thereby, violating a provision of the Code of Civil Procedure for engaging in acts that ‘interfere with the authority or dignity of the court.’ Nadeau-Dubois was ‘promoting anarchy and encouraging civil disobedience,’ the Judge declared. The Quebec Court of Appeal unanimously reversed, concluding that Nadeau-Dubois did not have the requisite intention nor did he use words that would give rise to a finding of contempt. The Justices were not shy to talk about freedom of expression. They expressly worried about using contempt of court to ‘paralyze’ its exercise by ‘imposing indirectly a certain form of censure.’

Five of the nine justices of the Supreme Court of Canada chose not to address freedom of expression. They, instead, honed in on standards of proof and procedural protections for those charged with contempt of court. This had the effect of shielding speakers like Nadeau-Dubois from conviction. Justices Abella and Gascon, writing for two other justices, though they may have had some appreciation for the free speech interests at stake, chose not to say so. Contempt of court, they warned, should only be used when genuinely necessary to safeguard the administration of justice. Doubts or ambiguities should be resolved in favour of the accused in such proceedings. There was no evidence that Nadeau-Dubois knew of the specific injunction – other injunctions had also been issued – and only the assumption that he had knowledge. Failure to prove actual or inferred knowledge of the order should have resulted in an acquittal. Justice Moldaver, writing for himself, understood that Nadeau-Dubois deliberately sought to undermine judicial authority. However, pursuing a conviction for contempt of the specific order rendered the finding of contempt a nullity.

By contrast, the four justices in the minority, in an opinion written by Justice Wagner, were not interested in vindicating Nadeau-Dubois’ due process rights. Nor, as they made clear, were they interested in recognizing his right to freedom of expression. This was a period in which there was general tumult in the province, aided and abetted by student leadership. A ‘crisis of legitimacy and civil disobedience’ took hold in Quebec  – it was an ‘explosive’ situation, they declared. Specific knowledge of the order was not required. It was sufficient if Morasse could show knowledge that ‘orders existed.’ A contextual analysis of the words spoken – rather than relying upon ‘artificial formalism’ – enabled the minority Justices to find that Nadeau-Dubois had the requisite knowledge, just as the trial judge had concluded. General, not specific knowledge, of the court order was all that was required.

 Invoking the discourse of law and order, Justice Wagner declared that contempt of court ‘strikes at the very heart of the rule of law.’ In an extraordinary declaration, the minority stated that, given the stakes – what they called the ‘real legal issue’ – ‘respect for the authority of courts, must not be reduced to a simple question of procedure and burden of proof.’

The minority opinion then devoted several paragraphs (paras. 122-26) to the question of freedom of expression. This was an issue, after all, which had been argued ‘vigorously’ before the Court by parties and interveners, among them the Canadian Civil Liberties Association. While paying lip service to its importance, the minority opinion would not equate Nadeau-Dubois’ words with ‘the legitimate exercise of freedom of expression’ – they found this equivalence ‘disconcerting.’ The words at issue had ‘nothing to do with protecting freedom of expression’ but were, instead, a ‘pretext’ for ignoring the courts.

 It was respect for the authority of courts, by ‘reinforcing the rule of law,’ that protected fundamental freedoms. Rather than exercising his free speech rights, Nadeau-Dubois was ‘interfering with the very freedoms he was claiming to exercise, since he was undermining the court’s ability to enforce them.’ The minority justices thereby placed the judiciary at the center of Canada’s constitutional order – fundamental freedoms cannot, by definition, be engaged when someone willingly chooses to undermine the authority of judges.

If only a minority opinion, this is a worrisome judicial sentiment. Might the justices be suggesting that contempt of court is not constitutionally protected speech? Regrettably, the minority Justices chose not to be very clear about this. The Charter of Rights and Freedoms, after all, may not have applied directly to this private dispute. Charter ‘values,’ at the very least, influence the development of the common law and should have guided their deliberations, just as it did in the Quebec Court of Appeal. The minority view evinces a lack of appreciation of the role that expression, even that which is disrespectful of the judiciary, plays in democratic life. For the minority of four, restrictions on what people say about court orders paradoxically serves democratic values. The minority sadly betrays the free speech values at stake in this case.

 In support of their reading of the Constitution, the minority cited a 1952 judgment of the British Columbia Supreme Court where Chief Justice Farris worried that, if laws are ‘flouted’ and court orders treated with contempt, ‘the whole fabric of our freedom is destroyed.’ There was no distinction to be drawn between a case where members of the International Woodworkers of America were found in contempt of court for blocking access to government docks in order to prevent shipment of their employer’s timber, and the behavior of student leadership during Quebec’s maple spring. Trade unionists were condemned for ‘gross contempt of court …of a particularly brazen and contumacious character.’ Their leader was sentenced to three months’ jail time. After all, Farris C.J. declared, trade unions are ‘trustees … for the public at large’ and failure to recognize this ‘can only result in chaos and destruction.’

 It is regrettable that the minority chose to draw upon Chief Justice Farris’s reasons, with its highly patronizing tone. These were formulated at the height of the red scare and are a part of the discredited legacy of judicial intervention in labour disputes. Secondary picketing of the sort at issue in 1952 has since been declared to be constitutionally protected freedom of expression. This is more than the minority was willing to concede to Gabriel Nadeau-Dubois. Yet he did not impede access to universities but, instead, spoke generally about picket lines being a ‘legitimate’ way of respecting a student strike vote.

 Once again, Justices of the Supreme Court, albeit a minority of four, seemed oblivious of the perils to freedom of expression by overly worrying about judicial reputation and the ‘breakdown’ of social order. Far preferable are the reasons of Justice Kasirer of the Quebec Court of Appeal in another dispute, but favorably quoted by his Court of Appeal colleagues in the present case: ‘If a finding of contempt comes too easily – if the use of contempt is not “most jealously and carefully watched and exercised,” as was once famously said [in 1877] – a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power its seeks to protect.’