R. v. Chek TV Ltd., 1985 CanLII 661 (BC SC). —The Attorney-General, on behalf of Her Majesty the Queen, asks that the respondent television station be found guilty of criminal contempt of the court for broadcasting a news segment at 5:30 p.m. and repeating it at 11:20 p.m. on March 7, 1985. On that date I was presiding at Nanaimo with a jury over a first-degree murder trial of three accused, one of whom was Rodney Camphaug. Nanaimo is a “prime target audience” of the station which transmits from Victoria.
R. v. Chek TV Ltd., 1985 CanLII 661 (BC SC)
Date:
1985-12-13
File number:
CR3321
Other citation:
23 CCC (3d) 395
Citation:
R. v. Chek TV Ltd., 1985 CanLII 661 (BC SC), <http://canlii.ca/t/22kkb>, retrieved on 2020-03-26
Supreme Court of British Columbia
R. v. Chek TV Ltd.
Date: 1985-12-13
J. D. Taylor and N. Johnson, for the Crown, petitioner.
D. B. Kirkam and J. B. Festinger, for respondents.
[1] MCKENZIE J.:—The Attorney-General, on behalf of Her Majesty the Queen, asks that the respondent television station be found guilty of criminal contempt of the court for broadcasting a news segment at 5:30 p.m. and repeating it at 11:20 p.m. on March 7, 1985. On that date I was presiding at Nanaimo with a jury over a first-degree murder trial of three accused, one of whom was Rodney Camphaug. Nanaimo is a “prime target audience” of the station which transmits from Victoria.
[2] I heard the contempt petition at the specific request of both counsel because of my knowledge of the full circumstances.
[3] The trial ran from January 14, 1985, with minor adjournments to April 26, 1985, when the jury found all three guilty as charged and each was sentenced to life imprisonment without eligibility for parole for 25 years. It lasted longer than any other British Columbia murder trial, so far as anyone can recall, and it was of a sensational kind involving underworld figures inhabiting a bizarre world of drugs and violence. Security measures at the courthouse were extraordinary with armed police standing inside and out, with questions asked at the court-room door and a metal detector used before spectators were allowed in. The three accused were brought each day from a prison in Victoria by a convoy of police vehicles and returned there each night.
[4] The press in Nanaimo, Victoria and Vancouver gave the trial extensive coverage as did radio and television stations.
[5] On March 7, 1985, the respondent station reported the trial happenings of the day in which Camphaug played a prominent role. His usual conduct in court was often highly aggressive and abusive of the judge, Crown counsel and the witnesses testifying for the Crown which included a number of men and women of disreputable character who had associated in one way or another, in and out of jail, with one or more of the accused. Many of these witnesses, for their own protection, were secreted away by the R.C.M.P. in unrevealed locations.
[6] After giving its account of the day's trial happenings through a narrator who attended the trial the segment went on to display archival tape made five months before at the Victoria prison where at that time Camphaug had taken three guards hostage and had wounded one with a pistol shot. Camphaug was shown in a coloured sketch with pistol in hand and the wounded guard on the floor.
[7] When the original broadcast about the hostage-taking was made in early October, 1984, the narrator said Camphaug “shot one prison guard and took two others hostage”. When the film was run again on March 7, 1985, this statement was adjusted to “one of the guards was shot”. This retreat to the passive was consciously made to avoid direct identification of Camphaug as the perpetrator. Despite this device the context of the episode as depicted and described left no doubt as to whose finger was on the trigger.
[8] Also interwoven into the news segment on March 7, 1985, was an update on the condition of the injured guard who was recovering from his wound. He was reported as harbouring no resentment toward “the man who shot him”. No viewer could possibly nominate anyone but Camphaug as that man.
[9] On March 8, 1985, the day after the three-stories-in-one news broadcast Camphaug moved for a mistrial on the ground that its effect upon the jurors would be so prejudicial to him as to render a fair trial impossible.
[10] The respondent immediately complied with Crown counsel's request for the tape of the impugned broadcast and counsel for the respondent appeared that afternoon when the tape was played and argument heard on the mistrial motion. Next day I delivered reasons for judgment dismissing the motion as follows:
THE COURT: Well, I do not propose to delay delivering reasons for judgment because there have beers mistrials recent or otherwise in Vancouver. Various grounds for mistrials occur all the time, but I have got to decide this motion on its merits.
The accused Camphaug, now defending himself after dismissing his counsel on Thursday, March 7, 1985, the 38th day of the trial, applies on the 38th day of the trial for a mistrial because of a television news broadcast which was transmitted by channel 6, Victoria, CHEK TV, as Vancouver Island News at 5:30 p.m. preceding the CTV Evening News from Vancouver between 6:00 p.m. and 7:00 p.m., and repeated at 11:30 p.m. the same night following the CTV National News.
Reasons for judgment have been given earlier on multiple motions for severance or mistrial from all three accused who are charged jointly with first degree murder.
The impugned broadcast had two segments; the first of which covered the trial events of that day as introduced by the news anchorman and as narrated by a reporter attending this trial. The report was quite extensive and comprehensive, and was accompanied by several colour renderings of various of the trial participants including the jury. The first segment mentions all three of the accused by name.
The court and all participants in the trial have seen the videotape which reproduced both segments of the broadcast; it having been supplied promptly by channel 6 following my request for it as relayed through Crown counsel.
As for the first segment, I thought it superior in its accurate recapitulation of some of the day's events at trial, and Camphaug and counsel for the other two accused have expressed no criticism of the first segment as such.
However, much criticism is levelled by Camphaug and the other two defence counsel at the second segment which immediately followed the first segment, and which deals with conduct attributed to Camphaug five months ago on October 5, 1984, when he was incarcerated at Wilkinson Road Gaol near Victoria awaiting trial on this charge.
The second segment is introduced by the anchorman who defers to a newsman who provides a voice-over for the rest of the segment, which showed some video camera shots combined with renderings of an artist's conception of interior prison scenes.
The following transcript contains the voice-over comments, but does not reproduce the words of the anchorman which were additional to the transcript.
“Roderick Camphaug is also facing charges stemming from a hostage-taking incident at the Wilkinson Road Gaol last fall. One of the guards was shot and seriously injured during the incident. Dan Kroffit has been recuperating from his wounds for the past five months and plans to go back to work as a guard at the prison as soon as he can. Howard Markson reports,”
Then Markson's words follow:
“October 5, 1984, Wilkinson Road Gaol. It's the early morning of October 5, 1984. Inmate Roderick Camphaug facing charges of murder in desperation takes three guards hostage. One of them is shot in the arm and lies bleeding for hours. The next day, guard Dan Kroffit is recovering in hospital and tells the News Hour of his frightening experience.”
Then there is a brief clip showing the injured guard as of October 6, 1984. Then the voice-over continues and begins to relate contemporary events this way:
“The bandages are gone now but some of the after effects remain. Kroffit is still under physiotherapy for the gunshot wound, though he is progressing well. He says everyone's been helpful since the incident including his employer. He's been off work the past 5 months but hopes to return soon.”
It continues:
“While the pain is mostly gone now, there are still reminders of those hours of terror. Kroffit was the first guard ever wounded at Wilkinson Road. He says he hopes he's the last, but only time which heals all wounds will tell.”
In one of the artist's renderings displayed during the second segment three figures are shown in a barred room. One figure is seated with legs crossed on a sort of kitchen chair. He is apparently talking on a telephone which he holds in one hand and to his ear, and at the same time he is holding a revolver in the other pointing it at the two nearby guards. One guard is lying on the floor apparently wounded, and the other is kneeling over him apparently tending him.
In argument before me, Mr. Smith for Pawliw suggested that the seated figure has a “maniacal” look. This is not apparent to me. He appears to have a half smile on his face, and over-all has a nonchalant posture.
In the second segment, after the short introductory narrative by the anchorman, there is a mixture of prison scenes with the newsman's voice-over narrative. The injured guard is shown as photographed by video camera the day after the incident, and again shown as photographed and recorded at sometime immediately prior to the Friday broadcast. In that second segment he displayed his arm where the bullet had entered and left, and he explained the physical effects and after effeets of the injury. He does that in my opinion, in quite a restrained way.
The accused Camphaug, supported by the other two accused, takes particular exception to the following aspects of the second segment.
1. The voice-over speaks of “Camphaug facing charges of murder in desperation takes three guards hostage.” The fact is, there is only one joint charge against the three accused. The defence says that the jury might be left with the false impression that other murder charges await Camphaug apart from this one.
2. The use of the word “desperation” suggest that Camphaug saw himself as so guilty at that time that the taking of hostages appeared to him to be the only escape.
3. The use of the word “terror'“ would recall to the jury the evidence of the pathologist called by the Crown who described how Diana Van Dooren must have been shot twice at close range, and her evidence would evoke Diana Van Dooren's final moments.
4. The segment might convince the jury that Camphaug is a man capable of shooting someone else and, therefore, it is more likely that he shot Diana Van Dooren or participated in that killing.
5. The fact that the segments were broadcast twice during the same evening would tend to drive the message more explicitly home in the minds of the jurors.
The three accused assert that the broadcast has created such prejudice to them that it would be impossible for them to receive a fair trial before this jury. They say that this is particularly true because this broadcast is just one of several prejudice-creating occurrences during this trial, and they combine to have the cumulative effect of rendering a fair trial impossible. They say that the prejudice created is beyond cure.
I must compare the present situation to that which existed in R. v. Bengert et al. (No. 5), 1980 CanLII 321 (BC CA), 53 C.C.C. 481, 15 C.R. (3d) 114 sub nom. R. v. Bengert et al., wherein the British Columbia Court of Appeal upheld Berger J. in refusing to declare a mistrial I canvassed that authority extensively in the 19-page judgment dated February 7, 1985, when I denied a motion for a mistrial made by all three accused based on the impact on this jury of an article appearing in the Vancouver Sun which mentioned one of the present accused in connection with another murder trial then going forward in Vancouver. I will not canvass the principles of Bengert here again. The essential question to be answered is: “Can these accused get a fair trial before this jury?” (Berger J., p. 530).
The Crown's answer to that question is “Yes.” The Crown's main contention is the hostage taking at Wilkinson Road five months ago was a considerable media event and one that could not possibly escape the attention of the British Columbia public at large. Each juror coming forward two months ago for selection in this trial would inevitably be aware of the hostage-taking incident, and despite that awareness was sworn as a juror. If, at the time of swearing, the juror did not recall Camphaug's name and associate him with the incident, he or she shortly would have made the connection because of the evidence presented in this trial. Crown counsel deplores the impugned broadcast and wishes it had not been made. He conceded that it was inflammatory and prejudicial, but says it is markedly less so than the impugned broadcast in Bengert.
The accused take the opposite view and say this is a more blatant case than Bengert, taken in the light of other matters that have preceded it at this trial.
My view is the broadcast is less inflammatory and less prejudicial than the Bengert broadcast is. I am not going to detail the several differences. On the whole I do not believe that any great revelation was made to the present jurors by this broadcast. I assume when saying that, that all saw or at least heard about the broadcast. The broadcast did not suggest that the other two accused, Pawliw and Schnob, participated in the hostage-taking, and evidence has been earlier presented to the jury that they did not. I do not agree that there is a spill-over effect on the other two accused because of Camphaug's involvement.
In due course when charging the jury I must tell the jury of many things which they must disregard in reaching a verdict. I must, like Berger J., have confidence in the ability of present-day jurors to disregard what they may have heard outside the court-room, and I will tell them emphatically to do so. In this day of instant and wide-spread communication of sensational events it is impossible to put a cloak of silence about such incidents as a hostage-taking at Wilkinson Road during which a guard is shot. The freedom of the press is at stake and that freedom cannot be suppressed. No trial was in progress when the events occurred and were originally reported upon. By partly recapitulating those events during this trial. what CHEK TV has done is to remind the jurors of information — whether true or false information — which was already in their possession.
The trial will proceed as presently constituted and the motion for a mistrial is denied.
How the March 8th broadcast came about
[11] The anchorman on the whole broadcast also serves as the assistant news director of the station and as chief editor of the 5:30 p.m. news. He is highly regarded by his superiors. In the normal course he asks the news director to review the script, if he feels any concern about it, before broadcast but on this day the news director was away. The anchorman had no one to whom he could readily turn. In giving evidence he admitted that “in retrospect” he had made the wrong decision but at the time “alarm bells did not go off”.
[12] On the morning of the impugned broadcast a tape had been made of an interview with the injured prison guard, Dan Krofitt. The anchorman thought it would be a good idea to link the two stories in the 5:30 news. In evidence he gave this account:
When I came to work that morning, as I did every morning, I took a look at the stories that we are working on for the day and I noted that we had a crew in Nanaimo to cover the Van Dooren trial, and I also noted we had Howard Markson who was out talking to Dan Krofitt. I immediately recognized the two stories were linked because of Mr. Carnphaug being a prime player in both of them, so it was my decision to run the second story immediately following the Van Dooren murder trial story. In retrospect, it was the wrong decision to make. But at the time alarm bells did not go off. I did not see that we had a problem. I know you can't bring a man's record up while he is on trial for another trial, hut I did not think we had a problem because he had not been convicted on the hostage-taking incident. In fact, he was only facing charges. I didn't recognize the danger I was walking into, and then just proceeded to put the stories together, as yon saw.
[13] By Ms failure to appreciate that jurors take their oath to decide each ease “according to the evidence”, without any consideration of other evil doing by the accused unrelated to the charge, this broadcaster betrayed a fundamental ignorance of the rales governing a fair trial Revelations going to bad character which are not directly related to the charge as a rule should not be made in court and the judge must assure that they are not made. Jurors, however, are not always in court. In the normal course, nowadays, jurors are not sequestered until they enter upon their deliberations. They are free after court to go out into the world where people talk, where newspapers are react radio is heard and television is seen and heard. Because of the danger of jurors being contaminated from outside sources judges caution them at the outset of each trial not to talk to anyone about the case or to allow anyone to talk to them about it. Judges warn jurors not to be influenced by media accounts as they must decide the case only upon the evidence. Jurors are given credit for heeding these cautions but in high-profile cases the onslaught of pre-trial coverage is all-pervasive, unrelentingly detailed and endlessly repeated so the act of exclusion makes extraordinary demands upon a juror's mentality. People do not forget things because they are told to forget them. The best one can do is put extraneous knowledge to one side and decide strictly according to the evidence. The less the jurors are called upon to perform this feat the better it will be for justice.
[14] The law will not allow publication of matters canvassed in court in the absence of jury, Proceedings at preliminary hearings are usually banned by judge's order. Such prohibitions are necessary limitations on press freedom because they serve the higher purpose of assuring a fair trial.
[15] In the present case I find that the broadcaster was not alert to the danger of repeating, during a trial, an earlier broadcast of repellant conduct by one of the accused which was unrelated to the murder charge. I cannot ascribe to the broadcaster any intention to influence the course of justice or to cause prejudice to the accused man. If is obvious that his only desire was to improve his news story of the day's events at trial by linking those events, to make them more newsworthy, to earlier deplorable activities of the accused and to the human interest story of the injured guard recovering from his wound.
[16] The news director gave evidence in these proceedings saying that had he been available he probably would have taken the intelligence of the jury into consideration and would have assumed they would have been fully aware of the hostage incident at the time of its occurrence and would have remembered it. He took it for granted they would also know that Camphaug had been charged but not convicted of any offence in connection with it. When the news director is in any doubt about the propriety of a script he refers it to legal counsel, who has the final say but in the present case he does not think he would have referred it had he seen it. He said he probably would have done exactly what the anchorman did.
[17] The question to be determined here is whether the resurrection of the hostage-taking story so the jurors could view it again within the context of the murder trial is so offensive to the administration of justice as to constitute a contempt of court.
The law
[18] Counsel cited 17 cases with varying degrees of applicability, but these three answered all the questions raised here.
Case A
R. v. Froese and British Columbia Television Broadcasting System Ltd. (No. 3) (1979), 1979 CanLII 528 (BC SC), 50 C.C.C. (2d) 119, 15 C.R. (3d) 215 sub nom. R. v. Bengert. et al. (No. 18), 12 C.P.C. 79, a decision of McEachern C.J.S.C.
Case B
R. v. Froese and British Columbia Television Broadcasting System Ltd. (No. 3), a decision of the British Columbia Court of Appeal, dismissing an appeal from Case A, by Nemetz C.J.B.C. [reported 1980 CanLII 428 (BC CA), 54 C.C.C. (2d) 315, 18 C.R. (3d) 75, 23 B.C.L.R. 181].
Case C
R. v. Vairo and C.F.C.F. Incorporated (1982), 1982 CanLII 2956 (QC CS), 4 C.C.C. (3d) 274. 147 D.L.R. (3d) 547, a decision of Greenberg J. of the Quebec Superior Court (Criminal Jurisdiction) which considered and applied Cases A and B.
[19] In Case A, McEachern C.J.S.C., accepted as a correct statement of the law of British Columbia what was said by Lord Denning in Attorney-General v. British Broadcasting Corp., [1979] 3 All E.R. 45 at p. 54 [at p. 120]:
“So far as criminal proceedings are concerned, when a person is charged with a criminal offence, the courts have always been anxious to prevent any newspaper or the like from publishing any matter which may prejudice the fair trial of the accused person. This was introduced at a time when most criminal cases were tried by jury; and it was thought they might be prejudiced if they had read beforehand in the newspapers of matters which were inadmissible in evidence at the trial, such as his previous convictions or his bad character; or statements made by witnesses not subject to cross-examination and the like. The courts intervened strongly so as to prevent anything in the nature of 'trial by newspaper' or 'trial by television”'.
[1] … every person arraigned in a Canadian Court of criminal justice, whatever his antecedents, is protected throughout his trial by a presumption of innocence.
[2] … the burden of displacing the presumption of innocence rests upon the Crown and that such burden can only be discharged by placing before the jury a body of admissible evidence which establishes guilt beyond a reasonable doubt.
[3] … an indictment is decided only on admissible evidence …
[4] … evidence tending to establish bad character on the part of an accused cannot be placed before a jury except under very limited circumstances.
[21] Following this he made these general comments:
It is therefore a grave contempt for anyone, particularly the members of what is now called the media, to publish, before or during a trial, any statements, comments, or information which reflect adversely upon the conduct or character of an accused person, or to suggest directly or indirectly that he has been previously convicted of any offence, or to comment adversely or at all upon the strength or weakness of his defence. The harm that may be done is incalculable because in most cases it is impossible to determine what effect, if any, such statements or comments may have upon the jury. It will be most unfortunate and inconvenient, and not in the interests of the proper administration of justice, if it becomes necessary to resume the practice of separating juries from the rest of society during trials because a few irresponsible members of the media are unthinking enough to fail to follow the simple rules which must attend the conduct of every criminal trial.
In Case B, Nemetz C.J.B.C. concluded his judgment with these words [at p. 324]:
I turn now to the second ground of appeal. Did the learned Chief Justice err in finding that the guilt of the appellants was proved beyond a reasonable doubt? In my opinion, he did not.
As Lord Hardwicke, L.C., pointed out in Roach v. Garvan (or Hall) (1748), 2 Atk. 469 at p. 471, 26 E.R. 683 at p. 685:
“There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.”
This rationale was echoed by Wills, J., in R. v, Parke, [1903] 2 K.B. 432 at pp. 436-7, as follows:
“The reason why the publication of articies like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists — namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it.”
This latter passage demonstrates, in my view, the significance of the test to be applied in eases of this kind: whether the words spoken and broadcast were calculated to interfere with the course of justice. In order to make a finding of guilt, it is not necessary to find either that the words were intended to interfere, or that they did in fact interfere with the course of justice — for it will often be impossible to discover the effect of any statement upon a jury. It is only necessary to be satisfied beyond a reasonable doubt that the words were calculated to interfere in the sense of being apt, or having a tendency, to do so: see R, v. Parke, supra, and the judgments of this Court in R. v. Hill (1976), 1976 CanLII 1091 (BC CA), 33 C.C.C. (2d) 60, 73 D.L.R. (3d) 621, 37 C.R.N.S. 380, and R. v. Perkins (1980), CA 790656 (as yet unreported) [since reported 1980 CanLII 311 (BC CA), 51 C.C.C. (2d) 369, [1980] 4 W.W.R. 763]. This was the test that the learned Chief Justice applied in arriving at his conclusion of guilt. It is my view that there was ample evidence before him to support that conclusion. I would, therefore, dismiss the appeal.
[22] In Case C, Greenberg J. described In a clear way the special land of Intention required to support a finding of criminal contempt [at p. 276]:
Criminal contempt is a criminal offence; it is an indictable offence, but it is an offence sui generis. That is to say, it is different from, other indictable offences in that the accused contemner has no right to a trial by jury; his trial is before judge alone. This results from jurisprudence established over the centuries and which came down to us from the common law of England.
However, as in any criminal offence, for conviction the weight of the proof required against the contemner is that beyond a reasonable doubt; that is to say of both the actus reus and the mens rea, subject to a qualification in respect to the latter which I will elaborate upon in a moment.
Here, all the facts alleged are admitted. Also, both the corporate respondent and Mr. Vairo, through their attorney, have expressed to the court their unqualified and unreserved apologies and regrets. As to the actus reus, the facts are admitted; that is to say that the publication, by way of broadcast, took place as alleged in the petitions. As to the mens rea, in this instance it does not refer to an intention to commit a criminal contempt but rather to the intention to publish. That is to say, to knowingly and intentionally publish the material, irrespective of the absence of an intention or bad faith with respect to the question of criminal contempt itself.
The question of the quality of the material and as to whether or not it constitutes a criminal contempt is decided objectively, that is to say without reference to the contemners intention in that respect. The court must decide whether the material is objectively to be considered as such as is likely to, may tend to, or has the potential to obstruct; in this case obstruct the due administration of justice.
He spoke of the “opposing fundamental rights” of free speech, on the one hand, within which is encompassed the right of freedom of the press, and “the other side of the coin, the public's right to know”.
In opposition to those rights, he said, “we have the right of an accused to a fair trial by an impartial and independent tribunal” and he followed with this passage [at pp. 277-8]:
In. cases of the kind with which this court is now seized we have the results of a collision between those respective fundamental rights. It can be described in one sense as the “irresistible force” of freedom of the press colliding with the “immoveable object” of the right of an accused to a fair trial by an independent and impartial tribunal One must yield. Our law has decided, probably most wisely, that in such cases the freedom of the press must yield to the rights of the accused. This does not prevent, as Oswald said in his celebrated volume Contempt of Court, Canadian edition (1911), at p. 98:
“There is, of course, no objection to a fair and impartial report of proceedings at the hearing,”
However, this does not give any of the media the right to conduct what has been referred to by Oswald and others as a “trial by newspaper” or, to bring us more up to date, we can equally say a “trial by television”.
[23] He found no malicious intention and no bad faith on the part of the broadcaster or his supervisors but said that “both should have known better”. I make the same findings.
[24] As in Case C, the words and sketches used in the impugned broadcast about Camphaug's part in the hostage-taking had the same effect in that they clearly tended [at p. 279]
to convey to the minds of your average, reasonable listener or viewer the fact that this person is of a bad character and therefore, by one further step of deduction, likely to have committed the crime … of which he stands charged.
[25] These further observations of Greenberg J. have equal application to the present ease [at pp. 279-80]:
The court has also considered the actual consequences of the acts of the contemners in the present instance. No mistrial was ordered. However, there was a risk, and I add a serious risk, of a mistrial. In any event, two days of the court's time were spent on the mistrial motions, their argument and the judgment thereon, There was therefore time wasted in respect of the progress of the trial, for during those two days no progress whatsoever was made with respect to the trial per se. As well, as far as the jurors were concerned, in the final analysis they were kept on duty in respect of that trial for two days longer than would have otherwise been necessary.
I might add that I do not take into account the possibility of a new trial being ordered by the Court of Appeal. As yet we do not know if there has been an appeal or will be an appeal lodged with respect to the verdicts. In such event we have no way of knowing whether the appeal court will, on the basis of the incident here referred to or on the basis of this incident cumulated as to its effect with other subsequent, similar incidents during the trial, decide that in the over-all picture the accused did not have a fair trial and a new trial must be held.
We have no way of knowing whether there will be such an appeal, or in the event of such an appeal what will be its outcome. I therefore must take the status quo as it now exists. Hence, no mistrial took place and I cannot and do not take into account the possibility of a new trial in the event of an appeal.
[26] On the basis of the criteria derived from these authorities I find the respondent liable and guilty of contempt of court. I have done so in full awareness that the jurisdiction of the court to find a person or corporation guilty of contempt is discretionary and that the finding should only be made where there are serious grounds for its exercise and that it “is a weapon to be used sparingly, and always with reference to the interests of the administration of justice”. Re Murphy and Southam Press Ltd. (1972), 1972 CanLII 1245 (BC SC), 9 C.C.C. (2d) 330, 30 D.L.R. (3d) 355, [1972] 6 W.W.R. 331 sub nom. Brown v. Murphy et al. a decision of Anderson J. (as he then was). He took the quoted word from Lord .Morris, speaking for the Judicial Committee, in McLeod v. St. Aubyn, [1899] A.C. 549, at p. 362.
[27] Counsel have not spoken to the matter of penalty and consideration of it was deferred pending a determination of the contempt issue. I ask that counsel arrange through the trial co-ordination office for a mutually convenient time for a hearing concerning penalty.
Judgment accordingly.
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