Telus Communications Re: Alleged Criminal Contempt of Court of Gregory Allan Myers and Glen Allan Weberg, 2006 BCSC 123 (CanLII)

The history of this type of order being sought and the appropriate procedure was discussed in R. v. Froese (1980), 1980 CanLII 428 (BC CA), 23 B.C.L.R. 181 (B.C.C.A.) where Nemetz C.J.B.C. on behalf of the Court stated:

Criminal contempt has been considered, historically, to have been an indictable offence:  see McKeown v. The Queen (1971) 1971 CanLII 194 (SCC), 16 D.L.R. (3d) 390, per Laskin, Jo (as he then was).  Moreover, it would appear that a person charged upon an indictment would be tried by jury.  Section 429 of the Criminal Codecodifies this principle by providing that "except where otherwise expressly provided by law," every person charged with an indictable offence shall be tried by jury.  But the offence of criminal contempt need not be charged upon an indictment.  Historically, at least since R. v. Almon in 1765 (Wilm. 243; 96 E.R. 94), three procedures were available:  the summary process, criminal information, and indictment (see R. v. Parke [1903] 2 K.B. 432, and Fox, History of Contempt of Court, 1927).  Procedure by criminal information has been abolished in this country by s. 506 of the Criminal Code.  Procedure by indictment, on the other hand, would appear to be still available - see McKeown, supra at p.403, per Laskin, J.  I note one example of an information alleging, inter alia, one count of contempt, which received the approval of Malouf, J.S.P. in A. v. Larue-Langlois (1970) 14 C.R.N.S. 68.  The correctness of that decision was, however, doubted by Hugesson, A.C.J. in Re Ouellet (1976) 1976 CanLII 1254 (QC CS), 28 C.C.C. (2d) 338 at 345, and see, on appeal, 1976 CanLII 1250 (QC CA), 32 C.C.C. (2d) 149 at 156 per Montgomery, J.A.

Notwithstanding the availability or otherwise ofthe indictable procedure, so far as I have been able to determine it has seldom, if ever, been used in this country for the trial of criminal contempt and has not been so used in England since the seventeenth century.  Two English cases often cited as more recent examples oftrials of contempt by indictment are R. v. Fisher (1811) 2 Camp. 563, 170 E.R. 1253, and R. v. Tibbits and Windust [1902] 1 K.B. 77.  While the facts in both cases undoubtedly would have supported charges of criminal contempt, Fisher in fact involved an indictment for the publication of a libel, and the Tibbits and Windust case involved an indictment for attempting to obstruct the course of justice - both distinct criminal offences.  Thus, though it may be that the procedure by indictment could still be revived in contempt cases (see Re A.-G.'s Application, A.-G. v. Butterworth [1963] 1 Q.B. 696 at 728, per Pearson, L.J.), it is my view that it has fallen into desuetude.

Ought it to have been revived in this case?  In my opinion it ought not.  It is true that the authorities urge great caution in the use of the summary procedure, and justify its use on the basis of the necessity to act quickly; see, for instance,McKeown, supra, A.-G. Que. v. Hebert (1966) 1966 CanLII 563 (QC CA), 50 C.R. 88 (Que.C.A.), R. v. Vallieres and Gagnon (1973) 1973 CanLII 1279 (QC CA), 17 C.C.C. (2d) 375 (Que. C.A.), Re Clements (1877) 46 L.J.Ch. 375 and Skipworth's case (1873) L.R. 9 Q.B. 230.  The rationale for this principle of caution is that the summary process is an arbitrary one which may deprive the alleged contemnor of some of the traditional rights and safeguards afforded to a person tried for other offences, and therefore should only be used when no other process will serve to protect the administration of justice (e.g. in cases of contempt in facie curiae).

But apart from the immediate action of the presiding judge where such action is required to protect the administration of justice in his court, there are other procedures which have been used within the overall category of summary process.

In some jurisdictions criminal contemptproceedings may take the form of a show cause notice of motion which requires the alleged contemnor to appear in court to show why he should not be punished for contempt.  Counsel for BCTV submitted that the effect of this was to place upon the accused the burden of proving his innocence.  In the Hebert case, supra, such a rule nisi process had been invoked against the author of a book which allegedly attacked the administration of justice.  The trial which was the subject of the book resulted in the conviction on a charge of murder, and subsequent execution, of Wilbert Coffin.  The book was published in December 1963, more than seven years after Coffin's execution.  More than a year later, in January 1965, the contemptproceedings were launched against the author, Herbert, who was summarily convicted.  The Quebec Court of Appeal set the conviction aside on the ground that there was no urgency which justified the use of the summary process.

But that is not the process which was used here. The proceedings in this case were brought expeditiously by a party to the trial in relation to which the alleged contempt occurred.  They were launched by Notice of Motion which included notice that at the hearing of the motion the applicant Crown would seek leave to adduce viva voce evidence to prove the telecast.  It was not a show cause notice of motion.  The judge who heard the motion was not the same judge who had charge of the original trial.  Counsel for the application on the motion was not the same Crown counsel who originally filed the application.  The case proceeded on the premise that the onus was on the Crown.  In this appeal, counsel for the appellant objected that the Crown did not call any testimony to prove the broadcast.  But this was unnecessary in view ofthe fact that counsel for the appellant admitted the words of the broadcast at the outset of the hearing.  The accused were allowed full answer and defence. The standard that was applied was proof beyond a reasonable doubt.  In short, the accused had all the traditional rights and safeguards save one:  trial by jury.  I would respectfully adopt the words of Gale, C.J.H.C. (as he then was) in Re Tilco Plastics Ltd. v. Skurjat et al (1966) 1966 CanLII 235 (ON SC), 57 D.L.R. (2d) 596 at 610:

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