I. THE FACTUAL CONTEXT
[8]
This is an appeal from a judgment of the
Superior Court, dismissing appellants' motion for contempt of court.
[9]
The main facts that gave rise to the dispute can
best be summarized as follows :
[10]
Appellants are practitioners of Falun Gong,
which is allegedly a Chinese spiritual doctrine directed to the improvement of
the body, mind and spirit.
[11]
The respondent « La Presse Chinoise Eastern inc.
» publishes a weekly newspaper in Chinese which is widely distributed in and
read by the Greater Montreal Chinese community. Respondent Crescent Chau is
its principal shareholder, director and officer while Bing He is the author of the
alleged offending material.
[12]
In November and December 2001 and in the early
part of 2002, La Presse Chinoise Eastern Inc. published and circulated on its
website materials that allegedly seriously offended the appellants. The
members of Falun Gong were accused of a variety of criminal behaviours, of
indulging in deviant sexual practices, of subversion and sabotage. It appears
that most, if not all of these texts, were taken from quasi official statements
made by the Chinese government which apparently has attempted by various means
to prevent the spreading of the Falun Gong doctrine and to discredit its
members in certain expatriate Chinese communities.
II. THE PROCEEDINGS
[13]
Following these publications, appellants
instituted legal proceedings in damages and for a permanent injunction against
respondents and also sought, pending this litigation, a restraining order to
put a stop to what they felt were unsavoury comments.
[14]
In December 2001, both parties (with the
exception of Mrs. Bing He), represented by lawyers, drafted a safeguard order,
after long negotiations, and submitted it to Justice Danielle Grenier who
rendered judgment along the terms of this negotiated order. The full text of
the judgment reads as follows :
1)
The Court having taken cognizance of the
Petitioners' Motion, Affidavits and Exhibits and having heard the
representations of counsel for Petitioners and counsel for Respondents Crescent
Chau and La Presse Chinoise Eastern Inc. ;
2)
SEEING the Consent for Safeguard Orders signed
by counsel for the Petitioners and counsel for the Respondents Crescent Chau
and La Presse Chinoise Eastern Inc., dated December 10, 2001 ;
3)
THE COURT DOES ORDER AS FOLLOWS :
4)
GIVES ACT to and ratifies the Consent dated
December 10, 2001 filed in the Court Record ;
5)
ORDERS the Respondent Bing He not to cause to be
published or circulated the material or similar material as alleged in
Petitioners' Motion and Exhibits ;
6)
ORDERS the service of this judgment in
accordance with the said Consent dated December 10, 2001 in respect of the
Respondents Crescent Chau and La Presse Chinoise Eastern Inc. ;
7)
ORDERS the service of this judgment on the
Respondent Bing He at her address in the heading of the Petitioners' Motion ;
8)
ORDERS the Respondents to conform and comply
with this judgment under the penalties and sanctions provided by law, including
contempt of court ;
9)
DISPENSES the Petitioners from the giving of
security ;
10)
COSTS TO FOLLOW SUIT.
[15]
The part of the consent with which the Court
ordered respondents to conform and comply, and which gave rise to the present
dispute is to the following effect :
The aforesaid Respondents undertake
not to accept for publication and not to publish articles or advertisements
emanating from the Co-Respondent Bing He with respect to Falun Gong as alleged
in the Petitioners' Motion and Exhibits or articles or advertisements of a
similar nature from any other person, it being understood that the above
restriction does not limit the Respondents aforementioned from accepting for
publication or publishing articles or advertisements on the Falun Gong that
constitute legitimate and lawful comment as is permitted under Canadian Law and
Quebec Law.
[16]
This order which was in force only for a limited
period of time (Jan. 7, 2002) was renewed three times by other judges of the
Superior Court on January 7, 2002, February 7, 2002 and March 14, 2002.
[17]
In February, the Superior Court was seized with
a motion for contempt of court following publication of additional materials
concerning Falun Gong, which appeared both in the respondent' newspaper and on
its website in January and February 2002.
[18]
Contempt proceedings were heard on April 15,
2002 by Justice Pierre Viau who dismissed them for reasons raised proprio
motu, after hearing the attorneys on the issue that the Court order
was not susceptible of execution for lack of precision.
[19]
Justice Viau, commenting upon the order of
Justice Grenier, wrote :
[23] C'est vague, imprécis et
impossible à exécuter en pratique.
[…]
[31] Cela dit, le Tribunal se
voit obligé de constater que la requête pour outrage au Tribunal se fonde sur
un consentement qui n'est ni clair, ni précis et que les ordonnances qui l'ont
suivi ne sont pas exécutoires. Elles constituent des actes incitatifs plutôt
que des énoncés performatifs et donnent des indications de la voie générale à
suivre d'ici l'examen au fond du véritable litige qui divise les parties.
Elles ne sauraient donc constituer le fondement d'accusations graves pouvant
entraîner des condamnations à l'amende ou à une sentence d'emprisonnement.
III. DISCUSSION
[20]
We are not concerned here with the debate as to
whether or not the publications of the respondent La Presse Chinoise Eastern
Inc. constitute a breach of the order. This will be for the judge sitting on
the merits of the case to determine.
[21]
We are concerned only with the following problem
: Was the judge of the Superior Court entitled to summarily dismiss the motion
for contempt of court on the basis of vagueness and imprecision ?
[22]
Contempt of court, whether it be civil or
criminal, is indeed a serious matter. This is why the unanimous reaction of
Canadian courts has been to enunciate clear procedural rules to ensure that
those accused of contempt will be treated with utmost justice and fairness.
Even in civil matters, great care is taken to preserve the rights of the person
cited for contempt by importing into the process rules that have then origin in
the criminal justice system. For instance, the defendant cannot be forced to
testify, mens rea must be proven (although this is now strongly
disputed in civil matters) and the burden of proof of all the necessary elements is squarely
put on the shoulders of the plaintiff. Defendant must also be given the
benefit of a reasonable doubt.
[23]
All these rules have been analyzed in several
cases among which may be cited: Daigle v. Co. municipale de la
paroisse de St-Gabriel de Brandon; Droit de la famille - 1605; Tessier v. Roux et Forest v. Ville de Laval.
[24]
For this reason, the order must be precise, for
the persons against whom it is issued must know exactly what they can do and
what they must absolutely refrain from doing. There is little room for
interpretation.
[25]
Courts, however, take a somewhat different
attitude in respect to civil and criminal contempt. This is not to say that
they diverge on the applicable rules, but only that the strictissimi juris rule
is applied with certain nuances in civil cases, even if civil contempt does
have a quasi criminal nature.
[26]
Sections 49 and foll. of the Code of Civil
Procedure are applicable to the present case and, according to the
jurisprudence of our Court, the Court hearing the petition must critically
examine the text of the order and if, on its face, it appears ambiguous,
imprecise, or susceptible of divergent interpretations, can immediately and at
that preliminary stage dismiss the motion. The Court should not however do so
lightly but only where on its very face the order is clearly not susceptible of
execution.
[27]
To give an example, such would be the case if a
Court ordered that picket lines should only be allowed at a «reasonable
distance» of a building. Since the notion of reasonableness is essentially
subjective, an order so worded leaves ample room for interpretation and thus
breeds ambiguity.
[28]
In Vidéotron Ltée v. Industries
Microlec Inc., Justice Claire L'Heureux-Dubé clearly
expressed, in my view, the fundamental difference between criminal and civil
contempt proceedings. She wrote the following comments in a dissenting
opinion, but her dissent was based solely on the question of whether or not a
defendant in contempt proceedings could be compelled to testify. The general
nature of these remarks, I believe, apply perfectly to this case.
In short, since contempt of court
is a hybrid institution, simple logic demands that purely civil contempt not be
given the public dimension that lies at the heart of criminal contempt. The
civil injunction and the contempt which may arise from it are designed
primarily to enforce the private rights protected by the order. The purpose
and terms and conditions of civil imprisonment are of a clearly coercive
nature, designed to assist in the enforcement of these rights. The
relationship between the injunction order, the art. 761 C.C.P. contempt
proceeding and the possibility of imprisonment thus seem to me not only compatible
but closely complementary. In the final analysis, since the case at bar
concerns contempt arising from a civil injunction order, the parameters
appropriate to public law cannot be applied. In my opinion, the purpose of
criminal contempt is diametrically opposed to the purpose of civil contempt. I
shall therefore consider the question of compellability in light of these
principles. (p. 1095-1096)
[29]
In my view, while it cannot be ignored that
civil contempt has a punitive component, it is also clear that its main
characteristic is not primarily punishment in itself but rather the
enforceability and compliance of civil orders of the courts.
[30]
It is, I believe, a well settled rule that
courts on a motion for contempt should not unduly and in a strictly formalistic
way concern themselves only with the letter of the order, nor should they rely
exclusively on a verbatim and literal interpretation. Our Court in Procom
Immobilier Inc. v. Commission des valeurs mobilières du Québec wrote :
Il est vrai, comme le signale le
procureur des appelants, que les procédures d'outrage au tribunal sont «strictissimi
juris», mais cela ne veut pas dire que la Cour doit tolérer la violation de
ces ordonnances ou qu'elle doit permettre à une partie de faire fi à une injonction
au nom d'un formalisme artificiel et excessif. (p. 563)
[31]
Instead, Courts should, on the one hand, examine
the context in which the order was issued, and evaluate it according to the
specific and particular circumstances of the case and, on the other hand, ask
themselves whether or not the defendant could have reasonably been aware that
his acts or omissions fall under the order.
[32]
In other words, a defendant cannot hide behind a
restrictive and literal interpretation to circumvent the order and make a mockery
of it and of the administration of justice. It is to be stressed that, in the
present case, respondents Chau and his company themselves participated in the
drafting of the order. It can thus be presumed that respondent Chau had a good
understanding of precisely what he was restraining himself not to do.
[33]
In Daigle v. Co. municipale de la
paroisse de St-Gabriel de Brandon, Justice Chevalier, writing for the
Court, described in detail the procedure to be followed and made these remarks
:
Lorsqu'il s'agit d'une
allégation de non-exécution d'un ordre du tribunal, le juge saisi d'une demande
de déclaration d'outrage doit, à mon avis, procéder par étapes. Il lui faut
d'abord examiner attentivement les termes du jugement auquel, selon le
requérant, l'intimé n'aurait pas obéi. Ces termes impliquent, non seulement
le sens des mots utilisés, mais aussi l'esprit dans lequel l'ensemble de la
décision a été conçu par celui qui l'a rédigée. Si, après examen, il
s'avère que la phraséologie employée est ambiguë ou est susceptible
d'interprétations multiples, le juge a l'obligation de retenir cet élément
d'appréciation lorsqu'il aborde les étapes subséquentes. (p.253)
(My underlining)
[34]
Subsequently in Droit de la famille - 1605, Justice Brossard endorsed these
remarks. This rule was again reaffirmed in Tessier v. Roux.
[35]
In Forest v. Ville de Laval, again, our Court found that an order to take «appropriate
measures» to prevent flooding, while leaving a certain degree of discretion to
the debtor of the obligation, was neither vague nor imprecise.
[36]
With respect, I do not believe that the trial
judge could, in the circumstances of this case, summarily dismiss the motion.
He should have given appellant the opportunity to go further and to present
evidence as to possible violations of the order.
[37]
The last sentence of parag. 2 of the order is to
the following effect :
[…] it being understood that the
above restriction does not limit the Respondents aforementioned from accepting
for publication or published articles or advertisements on the Falun Gong that
constitute legitimate and lawful comment as is permitted under Canadian law and
Quebec law.
[38]
In my opinion, this provision cannot be
interpreted as creating vagueness but rather, in the particular context of the dispute
between the parties, as a saving provision preventing respondents from being
totally and irrevocably prohibited from publishing any factual information on
Falun Gong. It was specifically designed to eliminate the possibility of a
total and encompassing gag order and to preserve the fundamental freedom of the
press. The intent of the negotiated order was that no defamatory or offensive
material be published, while leaving the respondents free to publish factual or
even critical comments. One should not, in analysing the order, confuse
flexibility with vagueness.
[39]
For these reasons, I am of the opinion that the
appeal should be allowed, the judgment of the Superior Court quashed and the
contempt proceeding returned to the Superior Court for adjudication, the whole
with costs throughout.
[40]
We were told at the hearing that the main action
in damages has already been set for hearing in November, and that most of the
evidence that will then be put before the trial judge will be to some extent
identical or similar to that which will be heard by the judge hearing the
motion for contempt. Since respondents are not compellable witnesses on the
contempt hearing, the two litigations cannot be joined ; nevertheless it is to
be hoped that the lawyers representing both parties will find a way to avoid
undue duplication of time, energy and costs, for instance by agreeing to
postpone the hearing on the contempt of Court order until after judgment has
been rendered on the damages issue.
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JEAN-LOUIS BAUDOUIN J.C.A.
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[41]
A decision rendered by a court must be
enforceable, not only in the sense that it must be feasible, but also in
the sense that it must be precise, in order not to give any opening, in
case of contempt of court procedures, to a debate on its true significance.
[42]
Otherwise, the party subject to any court order
would be dependent upon the interpretation given to the said order by the
person in favour of which it was delivered.
[43]
In Le Sporting Club du Sanctuaire inc. c.
2320-4365 Québec inc.,
Gendreau J.A. wrote, on behalf of the Court majority (Lebel J.A. concurring):
[…] la
procedure d'outrage […] consiste à vérifier si celui qui est assujetti à
l'ordonnance a désobéi à l'ordre du tribunal. Aussi faut-il que cet ordre soit
manifeste et sans équivoque puisque la violation nécessite une preuve hors de
tout doute raisonnable. Un ordre n'existe que si la manifestation impérative
signifie clairement l'action ou l'abstention d'agir qui est recherchée du sujet
du commandement.
[…]
Raisonner
autrement signifierait l'obligation, pour la personne astreinte à une
ordonnance libellée comme celle sous étude, de se conformer à l'interprétation
de son cocontractant puisque toute autre attitude la conduirait à la mise à
l'amende, voire à l'incarcération si sa propre interprétation était ultimement
écartée par le juge saisi d'une requête en outrage.
[44]
This principle has been reasserted many times by
the courts, notably in the following decisions of this Court:
-
Marcellin Ducharme inc. v. Les Moteurs
Kawasaki canadien inc. et autre,
500-09-010003-002,July 30, 2001, Mailhot, Nuss, Rochon JJ.A.;
-
2957-2518 Québec inc. v. Dunkin'Donuts
(Canada) Ltd, 500-09-011922-028, June 7, 2002,
Rothman, Otis, Letarte (ad hoc) JJ.A.
[45]
In the present case, the order was written as
follows:
The
aforesaid Respondents undertake not to accept for publication and not to
publish articles or advertisements emanating from the Co-Respondent Bing He
with respect to Falun Gong as alleged in the Petitioners' Motion and Exhibits
or articles or advertisements of a similar nature from any other person,
it being understood that the above restriction does not limit the Respondents
aforementioned from accepting for publication or publishing articles or
advertisements on the Falun Gong that constitute legitimate and lawful
comment as is permitted under Canadian Law and Quebec Law.
[Underlining
added]
[46]
This order did not contain a precise and non
ambiguous defence of publishing. On the contrary, it was dependent upon the
interpretation the appellants could give to the following passages:
a)
[…] as alleged in the Petitioners' Motion and
Exhibits;
b)
[…] of a similar nature;
c)
[…] that constitute legitimate and lawful
comment as is permitted under Canadian Law and Quebec Law.
[47]
The first Judge was right in dismissing, at the
preliminary stage, the petition for contempt of court for the reason that the
order was:
[…] à ce
point vague et imprécise qu'il exige à tout le moins une interprétation
difficile tant pour son objet que pour son application.
[48]
The appeal should be dismissed with costs.
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