Trans Mountain Pipeline ULC v. Mivasair

2019 BCCA 267 Trans Mountain Pipeline ULC v. Mivasair

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2019 BCCA 267 Date: 20190723 Dockets: CA45402; CA45403; CA45404; CA45405; CA45406; CA45407; CA45408 CA45409; CA45410; CA45411; CA45412; CA45413; CA45414; CA45415; CA45416; CA45417; CA45419; CA45851 Between: Trans Mountain Pipeline ULC Plaintiff And David Mivasair, Bina Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean Escueta), Arthur Brociner (aka Artur Brociner), Karl Perrin, Yvon Raoul, Earle Peach, Sandra Ang, Reuben Garbanzo (aka Robert Arbess), Gordon Cornwall, Thomas Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), John Doe, Jane Doe, and Persons Unknown Defendants And Between: Regina Respondent And Alexa Claire Wood, Anneke Rotmeyer, Annemarie Mobach, Carolyn (Frankie) McGee, Meeka Marsolais, Quin Lawrence, Louise Leclair, Sharon B. Kravitz, Tavin Kemp, Judy Kalyan, Robert Allen Henrichsen, Brandon Gosnell, Aaron Goodbaum, Corina Bye, Victor Brice, Cadine Boechler, Diana Hardacher, and Patricia White Appellants Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson The Honourable Madam Justice Dickson On appeal from: Orders of the Supreme Court of British Columbia, dated June 1 and 27, and July 31, 2018 (Trans Mountain Pipeline ULC v. Mivasair, Vancouver Docket S183541). Counsel for the Appellants: C.C. Cheng O.R.

Pulleyblank Counsel for the Respondent: T.A. Shaw S.A. Hulko Place and Date of Hearing: Vancouver, British Columbia May 27, 2019 Place and Date of Judgment: Vancouver, British Columbia July 23, 2019 Written Reasons by: The Honourable Mr. Justice Frankel (Paras. 1-42) Concurred in by: The Honourable Madam Justice Dickson Concurring Reasons by: The Honourable Madam Justice Garson (Paras. 43-49) Concurred in by: The Honourable Madam Justice Dickson Summary: The appellants appeal their convictions for criminal contempt for violating an injunction restraining obstruction of access to Trans Mountain Pipeline's worksites. With respect to the mens rea for criminal contempt, the appellants submit this Court should not follow the Supreme Court of Canada's decision in United Nurses of Alberta v. Alberta (Attorney General). They further submit the facts they agreed to support only a finding of civil contempt. Held: Appeals dismissed. This Court is bound by United Nurses. The facts support a criminal contempt finding. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] The appellants, who are not the individuals named as defendants in the original civil proceeding, were convicted of criminal contempt of court for having defied an injunction restraining protestors from blocking access to a pipeline expansion project. They pleaded not guilty, admitted certain facts,

and invited the trial judge to convict them on the basis of those facts. [2] In appealing their convictions, the appellants submit this Court should not follow the Supreme Court of Canada's leading case on the mens rea element of criminal contempt because that case was wrongly decided. They further submit the agreed facts support only a finding of civil contempt. [3] For the reasons that follow, I would dismiss these appeals. Factual Background [4] On March 8, 2018, Trans Mountain Pipeline ULC filed a notice of civil claim in the Supreme Court of British Columbia alleging various named and unknown persons were illegally blocking access to its worksites on or near Burnaby Mountain, British Columbia, known as the Burnaby Terminal. Those sites relate to work being done to enlarge a pipeline that transports petroleum from Alberta. Trans Mountain sought an award of damages and an injunction. [5] On March 15, 2018, Justice Affleck granted an injunction that enjoined all persons having notice of the injunction from continuing to blockade Trans Mountain's worksites. In the weeks that followed, the appellants were part of a large number of anti-pipeline protestors arrested for breaching that injunction. [6] On March 28, 2018, Trans Mountain filed a motion for civil contempt against persons alleged to have breached the injunction. The Attorney General of British Columbia assumed conduct

of the matter and elected to proceed on the basis of criminal contempt. Justice Affleck was assigned as the trial judge. [7] On April 11, 2018, approximately 60 protestors, including several of the appellants, appeared before the trial judge. The majority of those persons were then without counsel. In the course of explaining the process that would be followed in trying the contempt allegations, the judge said this: I'm going to tell you that it is important for everyone here who has been arrested by the police at the worksites where the injunction applied and continues to apply, if you've been arrested for a violation of the injunction, you should know that the conduct involved from the evidence that I heard at the time that the injunction was granted, and subsequent evidence that I have read, that conduct is, at a matter of law, criminal contempt of court. It is not civil contempt. I know there's been some mention that it may be civil contempt. It is not, it is criminal contempt of court, and it is, for me, as the judge presiding, to make that finding on the facts that it is criminal contempt, if proven. The trials will begin with those who were first arrested. They'll begin by the dates of those arrests and they will continue until all trials are completed. The trials will be focused on a single issue, namely, did each of those people who were arrested disobey the injunction

in a manner which was publicly defiant of the order; that is, the public defiance is what makes this criminal contempt as opposed to civil contempt. [8] Sixteen of the appellants were part of a group of protestors who filed a pre-trial application seeking a ruling that would, in effect, abolish the offence of criminal contempt. In their notice of application the protestors stated they were seeking the following "opinion": Should the Superior Courts constituted under section 96 of the Constitution Act, 1867 unify the offences of criminal contempt of court and civil contempt of court into one standard named, "contempt of court"[?] If not, should the Respondents in this present Notices of Motion be required to prove that each of the Applicants "caused serious public injury" and not just that the accused defied or disobeyed a court order in a public way. [Emphasis in original.] [9] The notice went on to state: 3. The Applicants should not be found guilty of criminal contempt of court. Instead, the court should no longer recognize and enforce a distinct common law criminal contempt of court for two reasons: (a) The modern distinction between civil and criminal contempt of court is inconsistent with section 9 of the Criminal Code and the definition of contempt of court as it existed on 1 April 1955. (b) The distinction between criminal and civil contempt of court is inconsistent with

Charter values against arbitrariness under section 7. Section 9 of the Criminal Code, R.S.C. 1985, c. C-46, abolishes common law offences but does not affect "the power, jurisdiction or authority" of courts to impose punishment for contempt of court that existed prior to April 1, 1955. [10] The trial judge heard the application on May 29 and 30, 2018. The protestors took the position that the law on criminal contempt as set out in the majority judgment in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, should not be followed. Crown counsel took the position that United Nurses was a binding authority. [11] The trial judge dismissed the application from the bench at the conclusion of submissions, indicating he would provide written reasons later. He did, however, briefly explain one of the reasons for his decision: So with those thoughts in mind, I'm going to tell you now that my conclusion is that the application has to be dismissed. There are a number of reasons for reaching that conclusion, but I will comment on one alone, which in my view is fatal to the application. Trial judges may depart from the law as laid down by appellate courts only in very narrow circumstances. If that was not the law there would be no predictability in the law, and in fact there, in some sense, would be no law. Hence, what is known to lawyers as the doctrine of stare

decisis, which means that inferior courts are bound by the decisions of superior courts and appellate courts, so far as they bear on the point that the judge at first instance, the trial judge in this case, and in this case the role I fulfill, I accept the submission of the Attorney General that the law in relation to the distinction between civil and criminal contempt has existed for many decades, and certainly before 1955. I accept the argument that the distinction between civil and criminal contempt is rooted in authority from the Supreme Court of Canada and from the Court of Appeal of British Columbia, which is binding on me. I have no jurisdiction to amalgamate the civil and criminal types of contempt, and hence, as I began by saying a moment ago, I have reached the conclusion that the application must be dismissed. [12] The next day, June 1, 2018, 12 appellants who had been involved in the pre-trial application appeared before the trial judge, represented by same counsel who had acted for them on the application. Their counsel and Crown counsel advised the judge that to preserve the appellants' right to appeal the previous day's ruling, the parties had agreed to follow the procedure discussed in R. v. Duong, 2006 BCCA 325 at para. 8, 228 B.C.A.C. 183, viz.: · The appellants would plead not guilty. · The facts alleged by the Crown would be admitted. · The appellants would

not call evidence. · The appellants would invite the judge to convict them on the basis of the admitted facts. [13] After not guilty pleas were entered, Crown counsel filed a separate agreed statement of facts in relation to each appellant. Each appellant had signed the agreement pertaining to their conduct. Each admitted they had been arrested for breaching the injunction. [14] The agreed statements of facts are not identical, as they describe events that occurred on several days, starting on March 17, 2018. However, the essential facts are common to each appellant, who are referred to in the statements as being one of a group of protestors. Those facts are: (a) There was continuing national and media coverage of opposition to the pipeline expansion project leading up to March 2018; (b) To access the Burnaby Terminal individuals have to travel 20 metres down a driveway to a fence with an entry gate; (c) The protestors breached the injunction by physically obstructing, impeding, or otherwise preventing access by Trans Mountain, its contractors, employees, or agents to the Burnaby Terminal; (d) Several news media photographers and videographers were at the scene; (e) A member of the Royal Canadian Mounted Police read the injunction to the protestors and provided each protestor with a copy of the injunction; (f) The police gave protestors time to read the injunction and

voluntarily leave the area to avoid arrest; (g) Prior to being arrested, each protestor was given a second opportunity to voluntarily leave the area; and (h) After being arrested, each protestor was processed by the police and then released. (The number of protestors arrested on the days in issue varied from a low of five to a high of 55.) [15] The penultimate paragraph of each statement of facts reads: The act of blocking access to the Burnaby Terminal was done in full view of news media cameras and various members of the public. The overall actions of the Protestors defied the injunction Order in a public way and thereby brought the authority of the court into contempt. [16] After the Crown closed its case, the appellants, through their counsel, elected not to call evidence and invited the trial judge to convict them of criminal contempt. Counsel made their respective sentencing submissions immediately after the judge entered convictions. At the suggestion of both counsel, the judge gave the appellants the option of a $500 fine or probation with the condition that they complete 25 hours of community service. Three of the twelve appellants opted for community service. [17] On June 27, 2018, four other appellants appeared before the trial judge, three of whom had been part of the group that brought the pre-trial application. Crown counsel and counsel for these appellants (being

the same counsel who acted on the application) advised the judge the parties wished to follow the procedure that had been followed on June 1, 2018. That was done and the judge entered convictions. The essential facts in the agreed statements of facts are those set out in paras. 14 and 15 above. The judge sentenced two of these appellants to pay a $500 fine, and the other two to probation with a 25-hour community-service condition. [18] On July 31, 2018, the last two of the appellants appeared before the trial judge, one of whom had been part of the group that brought the pre-trial application. Crown counsel and counsel for these appellants (being the same counsel who acted on the application) advised the judge the parties wished to follow the procedure that had been followed on June 1, 2018. That was done and the judge entered convictions. The essential facts in the agreed statements of facts are those set out in paras. 14 and 15 above. The judge sentenced both of these appellants to pay a $500 fine. [19] On September 6, 2018, the trial judge released written reasons for his dismissal of the pre-trial application: Trans Mountain Pipeline ULC v. Mivasair, 2018 BCSC 1530, 420 C.R.R. (2d) 84. With reference to the Supreme Court of Canada's decision in United Nurses, he stated that "The distinction between criminal and civil contempt is embedded in the law of this country": at para.

10. The judge rejected an argument advanced on the basis of Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, that he was not bound to follow United Nurses because since that case was decided circumstances had changed by reasons of technological advances and the advent of social media. In that regard, he stated: [16] It is also my view that it is inappropriate for the Applicants to request this Court to opine on the law applicable to assumed facts which have no relevance to a matter before it. The concern that civil contempt will become criminal contempt because of publicity surrounding social media has nothing to do with the conduct of the Applicants. There is no evidence that the Applicants were unwittingly ensnared by a form of social media into committing the offence of criminal contempt of court. The specific allegation against the Applicants was that each had committed criminal contempt of court by physically blocking access to worksites of Trans Mountain Pipeline contrary to the injunction, with the intention of attracting publicity to a cause. [Emphasis in original.] Grounds of Appeal [20] The appellants state their grounds of appeal as follows in their factum: The Trial Judge erred in law by a) conflating the test of criminal contempt of court and allowing the Crown to prove mens rea solely on proof of publicity rather than on proof of a specific

intent to depreciate the authority of the court, or a recklessness in relation to such; b) additionally, inferentially making a finding that each of the Appellants possessed the specific intent of depreciating the authority of the court solely on the circumstantial evidence of publicity, and with no other evidence of intent led by the Crown, which evidence does not reasonably inexorably lead to the conclusion that the Appellants sought to depreciate the court's authority. [21] As can be seen, the appellants no longer seek to have the distinction between civil and criminal contempt abolished. Rather, their arguments focus only on the mens rea element of criminal contempt. Analysis The Mens Rea of Criminal Contempt [22] United Nurses is the leading authority on the law of contempt. That case involved an appeal by a labour union from its conviction for criminal contempt. The union had gone on strike contrary to directives of the Alberta Labour Relations Board that had been filed as an order of the Alberta Court of Queen's Bench. During a press conference held at the start of the strike, the union's president acknowledged the strike action being taken was in contravention of a court order. [23] In dismissing the appeal, Justice McLachlin (as she then was), for the majority, discussed the differences between civil and criminal contempt. In that regard, she stated (at 931−932): The

distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt. The gravamen of the offence [of criminal contempt] is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court. To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority of the court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the

necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. In this case there was ample evidence to support the conclusion that the union chose to defy court orders openly and continuously, with full knowledge that its defiance would be widely publicized and, even putting the union's case at its best, it did not care whether this would bring the court into disrepute. [Emphasis added.] [24] In his dissenting reasons, Justice Cory said this with respect to the elements of criminal contempt (at 913): The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury. In the context of a labour dispute that would be conduct which threatens the rule of law. These would include acts of violence or threats of violence by large groups, or activities which could lead to a serious breakdown of the social order. The requisite mens rea of the offence is that the perpetrator wilfully or knowingly caused this harm, or

alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act. See R. v. Kopyto (1987), 61 C.R. (3d) 209 (Ont. C.A.), at p. 287. [Emphasis added.] [25] The present appellants acknowledge they committed the actus reus of criminal contempt, i.e., they knowingly defied a court order in a public way. However, they say the mens rea for conviction is lacking. Their position is that a person cannot be convicted of criminal contempt unless it is proven beyond a reasonable doubt "that the alleged contemnor breached the court order with a specific intent to depreciate the court's authority, whether that intent arises from an affirmative motivation to depreciate the court's authority or whether that intent arises from the contemnor's recklessness". [26] The appellants contend that the common law as it existed as of 11:59 p.m. on March 31, 1955, required proof of such a specific intention and that, by reason of s. 9 of the Criminal Code, such an intention is required today. They invoke the per incuriam rule to submit that in so far as United Nurses holds that a person can be found guilty of criminal contempt absent proof of the specific intent to depreciate the authority of the court, it was wrongly decided and, therefore, is not binding on lower courts. In support of their argument, the appellants rely on passages from Poje v. Attorney

General of British Columbia, [1953] 1 S.C.R. 516, a decision referred to in both the majority and dissenting reasons in United Nurses. I do not see anything in Poje that supports their argument. [27] The appellants cite United Brotherhood of Carpenters and Joiners of America, Locals 527, 1370, 1598, 1907 and 2397 v. Labour Relations Board, 2006 BCCA 364 at para. 25, 272 D.L.R. (4th) 253, for the proposition that this Court can decline to follow a previous decision under the per incuriam rule when that decision was rendered "in ignorance or forgetfulness of some inconsistent statutory provision". However, the discussion in that case concerned the limited circumstances in which it is open to a three-judge division of this Court to decline to follow one of this Court's previous decisions. In other words, it involved "horizontal" stare decisis. [28] The appellants have not cited any case in which this Court has declined to follow a decision of the Supreme Court of Canada on the basis that it was decided per incuriam. Indeed, in Scarff v. Wilson (1988), 33 B.C.L.R. (2d) 290 at 304, appeal allowed [1989] 2 S.C.R. 776, Chief Justice McEachern opined that it is not open to this Court to do so: It is not for me me to say the Supreme Court of Canada's decisions were made per incuriam or that they represent an "anomaly" (counsel's phrases). If the law is to be changed it must be done by

the Supreme Court of Canada and not by lower courts. Our duty, as stated by Lord Hailsham [in Broome v. Cassell & Co., [1972] A.C. 1027 (H.L.)], is faithfully and loyally to apply the law as it has been decided by the Supreme Court of Canada. See also: H.L. v. Canada (Attorney General), 2003 SKCA 78 at para. 12, 230 D.L.R. (4th) 735: "Only the Supreme Court can find its earlier judgment per incuriam" (per Bayda C.J.S.). [29] That the per incuriam rule is inapplicable to "vertical" stare decisis does not mean a lower court may never reconsider a Supreme Court of Canada precedent. In Canada (Attorney General) v. Bedford, a case involving constitutional rights, Chief Justice McLachlin said this with respect to when a lower court will be at liberty to depart from one of the Supreme Court's decisions (at para. 44): [A] lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [30] More recently, in Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC

49, [2014] 2 S.C.R. 477, Justice LeBel and Justice Wagner (as he then was), said this: [24] Of course, the doctrine of stare decisis is no longer completely inflexible. As the Court noted in Bedford, the precedential value of a judgment may be questioned "if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate" (para. 42). Where, on the other hand, the legal issue remains the same and arises in a similar context, the precedent still represents the law and must be followed by the courts (Bedford, at para. 46). [Emphasis added.] [31] There is nothing in the present case that would permit this Court to reconsider the mens rea element of criminal contempt. Both United Nurses and the case at bar involve the same legal issue in the context of the same basic facts. As Justice Slatter stated in his concurring reasons in R. v. Caron, 2014 ABCA 71 at para. 83, 306 C.C.C. (3d) 515, aff'd 2015 SCC 56, [2015] 3 S.C.R. 511, "any argument that the Supreme Court simply 'erred' is not within the Bedford exception to stare decisis." [32] I would add that in MacMillan Bloedel Ltd. v. Simpson (1994), 89 C.C.C. (3d) 217 at 228 (B.C.C.A.), aff'd [1995] 4 S.C.R. 725, McEachern C.J.B.C. stated that the difference between civil and criminal contempt had been

"settled" in United Nurses. In R. v. Krawczyk, 2009 BCCA 250 at para. 26, 275 B.C.A.C. 6, leave to appeal ref'd [2010] 1 S.C.R. xi, Justice Bauman (as he then was), said this Court was "bound" by United Nurses. [33] Accordingly, these appeals are to be determined on the basis of the law set out in United Nurses. Was Criminal Contempt Proven? [34] The appellants say the trial judge erred in convicting them because he did so solely on the basis that they had defied the injunction in a public way. They point to what the judge said at the April 11, 2018 appearance, as indicating a mistaken belief on his part that public defiance of a court order is all that is required to support a conviction for criminal contempt: see para. 7 above. They also refer to McLachlin J.'s statement in United Nurses that "a civil contempt is not converted to a criminal contempt merely because it attracts publicity": at 933. [35] The appellants further say the facts they admitted do not establish an intention or recklessness to depreciate the authority of the court. Their position is that the facts they admitted only establish civil contempt. [36] I would not accede to these arguments. [37] To begin, what the trial judge said on April 11, 2018, has no relevance to these appeals. Those were pre-trial remarks of a general nature, not intended to be an exposition of the law that would be applied at any

future trial. [38] What is important is what the judge said after hearing submissions on the pre-trial application: see para. 11 above. Those remarks evince that, moving forward, the issue of whether those who defied the injunction were guilty of criminal contempt would be determined in accordance with the law set out in the majority judgment in United Nurses. That was what the appellants understood when they invited the judge to convict them on the basis of the facts they admitted. Put otherwise, the appellants accepted that the facts they admitted proved both the actus reus and mens rea of criminal contempt, as those elements are defined in United Nurse. [39] That the agreed statements of facts do not contain an express admission with respect to mens rea is of no moment, as the admitted facts support the inference that the appellants were, at the very least, reckless as to whether the authority of the court would be brought into disrepute. [40] At its core, what occurred when protestors blocked access to the Burnaby Terminal is no different than what occurred in other public protests that have taken place in British Columbia over the years. One of the most notable of those protests involved blocking road access to logging operations in the Clayoquot Sound area on the west coast of Vancouver Island. In MacMillan Bloedel Ltd. v. Simpson, this Court dismissed appeals brought by

31 protestors who had been convicted at trial of criminal contempt for publicly defying injunctions obtained by MacMillan Bloedel. In convicting those protestors the trial judge had not expressly mentioned mens rea but, as McEachern C.J.B.C. noted at p. 228, the judge was alive to the importance of mens rea because he had quoted from United Nurses in his reasons. In rejecting an argument that the judge failed to decide whether the accused had been reckless as to the effects of their disobedience upon the authority of the court, the Chief Justice stated (at 229−230): When an accused, knowing of its existence, publicly and deliberately disobeys a court order, it is not necessary to prove that he or she knew the court's authority would be depreciated. Recklessness as to the effect of their conduct on the authority of the court is sufficient, and the circumstances of this case demonstrate beyond any possibility of doubt that the Defendants were at least reckless about that important consideration. Mr. Orris contended that the purpose of the Defendants in this case was not to depreciate the authority of the court, but rather to make an important environmental statement. With respect, that is indeed what happened, but it was the deliberate decision to do that after the order was read, and after a policeman asked them to move off the road, that demonstrates recklessness about all

other interests including the court. With respect, Mr. Orris asks us to delete "recklessness" from the test, and to treat the case as one where the Defendants must be shown to have known that their disobedience would depreciate the authority of the court. In the exaggerated circumstances of this case I tend to think that knowledge on the part of the Defendants could well be inferred, but it is not necessary to go that far. [Emphasis added.] See also: MacMillan Bloedel Ltd. v. Simpson, [1994] B.C.J. No. 1913 at para. 30 (S.C.). [41] As mentioned above, the gravamen of criminal contempt is the continuous and flagrant violation of a court order without regard for the effect that conduct may have on the respect accorded the courts. That is precisely what the appellants admitting doing. There is, therefore, no basis on which to interfere with their convictions. Disposition [42] I would dismiss these appeals. "The Honourable Mr. Justice Frankel" I AGREE: "The Honourable Madam Justice Dickson" Reasons for Judgment of the Honourable Madam Justice Garson: [43] I have had the privilege of reading in draft form the reasons for judgment of Mr. Justice Frankel. I agree with him that the appeal should be dismissed but I would expand somewhat on the discussion of United Nurses and of the appellants' submissions on appeal. In all other respects I agree with Justice Frankel's analysis. [44] The

appellants contend that the majority judgment in United Nurses, written by Justice McLachlin (as she then was) preserved the need for proof of public harm, not simply proof of an act of contempt committed in public. The appellants say that the trial judge erred in focussing solely on the actus reus of the offence -- that the appellants violated the injunction in public -- and not finding that public harm is also necessary. In other words they say that publicity alone is insufficient to satisfy the mens rea requirement of criminal contempt and that Justice Affleck erred in convicting them on the basis of publicity alone. [45] In support of the submission that public harm is necessary, the appellants point to the advent of smart phones and social media, and the ability of any one individual to broadcast events instantly and widely. They say this illustrates that any defiance of any court order may be instantaneously made public without the necessary mens rea component being present. [46] The appellants say that in this case the Crown failed to prove public harm as distinct from publicity. This submission draws support from Justice Cory's dissenting judgment in United Nurses. The dissent is also helpful in illustrating the distinction between public harm and publicity. I shall quote another passage in addition to the one noted by Justice Frankel in which Justice Cory explains his

disagreement with Justice McLachlin (at 913-915): (c) The Effect of Publicity My colleague McLachlin J. concludes that in essence all that is necessary to transform a defiance of a court order into criminal contempt is that the conduct occur in public. With respect, I cannot agree. To accept such a standard would be to ignore the basis of the distinction between criminal and civil contempt. It would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order. I would certainly agree that the intentional defiance of a court order, which takes place in full public view, may well be a significant factor in leading a court to conclude that there had been an injury to the public interest. However, to make it the sole determining factor expands the scope of criminal contempt powers far beyond the limits necessary to achieve their end. Criminal contempt provides the court with an awesome power which may have devastating consequences. It should be exercised with the greatest restraint and caution. The Law Reform Commission of Canada examined the offence of criminal contempt in a 1982 report: Contempt of Court, Report 17. Although the Commission acknowledged that criminal contempt had an

important role to play in sustaining the administration of justice it nevertheless advocated strict limits on its exercise. The Commission recommended that the use of the criminal contempt power should be confined to those rare situations in which it was essential to protect our system of justice. It noted at pp. 3-4: Penal sanctions should be reserved for very serious cases and used with moderation in order to reaffirm fundamental values solemnly. Criminal law must thus set tolerance thresholds. In matters of contempt, these thresholds must be established on the basis of the values to be protected, and must take into account the fact that civil contempt is often sufficient to reaffirm the values contravened, or to restore peace, efficacy and impartiality to a situation jeopardized by the act of an individual. I agree that criminal contempt power should be used sparingly, with great restraint and only in those circumstances when it is required to protect the rule of law. The response of the court to a party in defiance of its order must be proportionate to the harm caused. If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice. If civil contempt is to be transformed into criminal contempt solely because it has occurred in a public forum, then it will

have a very severe impact on all labour relations. Labour disputes culminating in strikes and picketing must necessarily take place in the public eye. Both unions and management rely on publicity to raise public awareness of the issues involved in the dispute. Both sides will seek public support. Court orders pertaining to a labour dispute will attract more attention to it. A defiance of such a court order is bound to attract still further public attention. In the usual course of events the breach of an order of a labour relations board during the course of union organizing, contract negotiations or a strike can, and should be, subject to monetary and legal consequences. The consequences should as a general rule be those provided by the applicable labour relations act or those which would result from civil contempt. It should rarely attract the penalties flowing from criminal contempt. [47] Justice Cory characterizes the judgment of Justice McLachlin as requiring only that the defiant conduct occur in public. However, the majority judgment characterized the actus reus as being a public act, and the mens rea as requiring intent, knowledge, or recklessness as to the fact that the act will tend to depreciate the authority of the court. That is the public harm which goes beyond mere publicity. Justice McLachlin explained (at 932-933): What the courts have fastened on in this and

other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole": B.C.G.E.U. v. British Columbia (Attorney General), [[1988] 2 S.C.R. 214] at p. 237, per Dickson C.J., Lamer, Wilson, La Forest, and L'Heureux‑Dubé JJ. concurring. The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court. To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority of the court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at

least reckless as to whether the authority of the court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. In this case there was ample evidence to support the conclusion that the union chose to defy court orders openly and continuously, with full knowledge that its defiance would be widely publicized and, even putting the union's case at its best, it did not care whether this would bring the court into disrepute. [Emphasis added.] [48] Similarly, here the judge did not err in drawing the inference that the appellants, to quote from Justice McLachlin, "did not care whether [their actions] would bring the court into disrepute." That is public harm as explained by Justice McLachlin, not just publicity. [49] I would dismiss the appeal. "The Honourable Madam Justice Garson" I AGREE: "The Honourable Madam Justice Dickson"