SOME ASPECTS OF THE LAW OF CONTEMPT OF COURT
IN CANADA, ENGLAND, AND THE UNITED STATES
by Jacob S. Ziegel*
If, as Mr. Justice Wilmot claimed in his celebrated opinion in The King
the power of the courts to punish contempts committed against
v. Alnwn,’
their dignity and authority is coeval with their very first foundations,2 it is
no less true that the exercise of that power gives rise to many problems, some
of which affect basic democratic liberties and few of which are easy to solve.
It is hoped in this essay to discuss several of these problems which have
assumed increasing importance in recent years and have been productive of
much doubt and controversy in the past. Necessarily, however, because of
limitations of space, much that is important and of interest in this branch
of the law must be either severely condensed or even ignored entirely.
I – CONSTRUCTIVE .CONTEMPTS OF COURT
A basic distinction is usually drawn between contempts committed in the
face of the court, and those not committed within its view. Little need be
said about contempts of the -first type, because it is conceded -by even the
sternest critics of the contempt power 3 that courts must be free to maintain
order and dignity in their proceedings, to ensure obedience to lawful commands,
to discipline their own officers, and to prevent abuse of the process of the court.
Of contempts not committed in the face of the court the most important
consist of utterances having a tendency to interfere with the fair disposition
of proceedings in issue, and those calculated to lower the esteem of the courts
in the eyes of ,the public. There is, in principle, nothing to connect these two
forms of constructive contempt, each having a different rationale, and it will be
convenient therefore to deal with them separately.
*Of the Vancouver Bar.
1(1765), Opinions & Judgments of Chief Justice Wilmot, 243; 97 E.R. 94. The
opinion was not published until 1802.
297 E.R. 94, at p. 99.
3Passhn, Nelles & King, “Contempt by Publication in the United States”, (1928),
28 Col. Law Rev. 401, 525; the speeches of the managers in the impeachment proceedings
against Judge Peck: Arthur J. Stamsbury, Report of the Trial of James H. Peck
(Boston, 1833); Harold Laski, “Procedure for Constructive Contempt in England”,
(1928), 41 Harv. Law Rev. 1031.
McGILL LAW JOURNAL
[Vol. 6
A. Publications and other utterances interfering with the impartial
administration of justice.4
Nothing is more incumbent upon courts of justice than to preserve
their
proceedings from being misrepresented; nor is there anything of more pernicious
consequence, than to prejudice the minds of the public against persons concerned
as parties in causes, before the cause is finally heard
wrote Lord Hardwicke in the St. James Evening Post case.5 More recently,
Mr. Justice Frantdurter of the United States Supreme Court has explained
the public policy underlying this necessary restraint on freedom of speech.
A trial is not a ‘free trade in ideas’, nor is the best test of truth in a courtroom
‘the power of the thought to get itself accepted in the competition of the market.’
A court is a forum with strictly defined limits for discussion. It is circumscribed in
the range of its inquiry and in its methods by the Constitution, by laws, and by
age-old traditions. Its judges are restrained in their freedom of expression by
historic compulsions resting on no officials of government. They are so cir-
cumscribed precisely because judges have in their keeping the enforcement of rights
and the protection of liberties which, according to the wisdom of the ages, can
only be enforced and protected by observing such methods and traditions.0
Until the second half of the nineteenth century, however, cases of constructive
contempts by publication, at any rate in relation to criminal trials, were
practically unknown.7 The reason for their rarity was that until the passing
of the Law of Libel -Amendment Act of 1888,8 it was generally considered
unlawful to publish reports of preliminary proceedings before magistrates,
on account of their supposed tendency to interfere with a fair trial, so that
newspapers “were not likely to go to the further length of announcing and
commenting upon supposed facts, to the prejudice of a prisoner, which had
not even come before the magistrates.”
“Trial by newspaper”, then, is a
modem phenomenon scarcely more than sixty years old. But in that short
period of time it -has grown to an alarming extent and would, no doubt,
constitute a serious threat to the fair conduct of criminal trials in England
and Canada, were it not for the strict vigilance of the courts in these countries.
In relation to criminal trials the source of prejudice to the accused arising
out of such publications may assume one of many forms. It may consist in the
printing of hearsay evidence about the crime or even in the fabrication of
4The writer has come across some 28 cases
in Canada between 1877 and 1958
involving publications of this alleged nature, 12 of which related to civil proceedings
and 16 to criminal. 2 of the cases are unreported. Most of them are referred to
hereafter. An accurate report of judicial proceedings is not, of course, a contempt,
although, especially
it may be
seriously prejudicial to the accused. See Note in (1956), 34 Can. Bar Rev. 206.
in criminal cases
involving preliminary hearings,
5(1742), 2 Atk. 469, at p. 469; 26 E.R. 683.
aBridges v. State of California; Times-Mirror Co. v. Superior Court of State of
California in & for the County of Los Angeles, (1942), 86 L. Ed. 192, at p. 214.
(Citations omitted).
7R. v. Davies [1906], 1 K.B. 32, per Wills J. at p. 38.
851 & 52 Vict., c. 64.
9[1906] 1 K.B. 32, at p. 38.
No. 4]
CONTEMPT OF COURT
non-existent testimony; in alleged confessions which were either never made
by the accused or are held not to be admissible at the trial; in anticipating
the accused’s defence or speculating on his guilt; or in printing his picture
when the question of identification may be in issue. Some publications of this
nature which have in the past decade come before the courts in England and
Canada may now briefly be referred to.
In a 1954 decision, R. v. Bryan,’0
the American publishers of three
“detective” magazines were fined three thousand, five thousand and four
thousand dollars respectively, and the editor of one of the magazines two
thousand dollars, for printing hearsay evidence about a pending murder case
which would not have been admissible at the trial. This case created a new
thus anticipating a similar English decision by three years”l –
precedent –
in that the local distributor for one of -the publications was sent to prison
,for ten days, Chief Justice McRuer pointing out that,
Even if he did not know the contents of the magazines, the responsibility for
their circulation still remains on him. He received them directly from abroad.
If the local distributor is not to be held responsible in such cases I doubt if
there is anyone within the jurisdiction of this Court that can be held responsible
in the absence of an appearance before the court of the foreign distributor or the
foreign publisher. 12
A particularly flagrant example of comment prejudicial
to the accused
came before a divisional court in England in R. v Bolam.13 There a London
newspaper with a country-wide circulation had called the accused, who was
on trial for his life, a “vampire”, and had imputed to him murders beyond the
one with which he was charged. The editor was sentenced to three months’
imprisonment and the publishers were fined ten -thousand pounds. In imposing
a term of imprisonment Lord Goddard was following an earlier precedent, set
by his court in 1902,”4 where, for a similar type of offence, the editor and
reporters had received a six weeks’ sentence each.
Two unreported Ontario decisions also deserve to be noted.15 In R. v.
Sidlivan,16 an Ottawa newspaper printed a report that the accused, who was
on trial for murder, was going to tell “[her] own story of how her husband
came to his death”; and in R. v. Meek’ 7 the offending newspaper falsely
reported that the accused, likewise on trial for his life, had voluntarily given
himself up to the -police, whereas in fact he had been arrested. In both
cases only fines were imposed.
1o[1954] O.R. 255; 108 C.C.C. 209.
‘ISee R. v. Griffiths [1957] 2 Q.B. 192.
12[1954] O.R. 255, at p. 265.
13(1949), 93 Sol. Journ. 220.
14R. v. Tibblts & Windhurst [1902] 1 K.B. 77; cf. R. v. Clarke (1910), 103 L.T.
(N.S.) 636, per Darling J. at p. 640.
‘5 See Note by F. A. Brewin in (1952), 30 Can. Bar. Rev. 614.
16February 13, 1951. (McRuer C.J.)
17March 10, 1952. (Aylen J.)
McGILL LAW JOURNAL
[Vol. 6
One of the direct evils resulting from prejudicial comments of the afore-
mentioned character is that the trial court, when its attention is drawn to them,
is always confronted with the difficult decision of whether to order a new trial
or not. In R. v. Dorion,’8 for example, a new trial was ordered after it was
proven that the jury had seen the newspaper report of a voir-dire proceeding
in which a document was held not to be admissible. In R. v. MacDonald,’0
on the other hand, the Ontario Court of Appeal refused to order a new trial
because it was not shown that any member of the jury had read the offending
article and also because accused’s counsel had agreed
to the trial judge
admonishing the jury to disregard the publication. The sufficiency of such
warnings may, however, be seriously doubted, since it is difficult to eliminate
the seeds of prejudice when once they have been sown.
The examples that have been cited so far reflect efforts by sensational
newspapers to boost their circulations by catering to vulgar tastes. To increase
sales rather than to secure a conviction is their aim. Unhappily, however,
instances are also not wanting where publishers, carried away by political
passions, have sought to usurp the functions of the public prosecutor as well.
The danger is particularly great when the accused is a member of an unpopular
minority party or religious sect. In R. v. Editor of Evening News,20 for
example, after a number of men had been charged with seditious libel the
“Evening News” published a cartoon showing three allegorical figures in a
car being arrested, who were labelled “communism”, “sedition”, and “mutiny”.
The editor was fined a ‘hundred pounds. In R. v. Wallbridge,21 on the other
hand, McKay J. was not satisfied that the publication in question could interfere
,with the fair trial of the accused and refused to find the paper in contempt
of court. The facts were that during a strike by unemployed men in Toronto
the accused were charged with the kidnapping of a reeve. While they were
awaiting trial the “Globe and Mail” published reports about alleged plans by
communists to foment violence and suggested that the kidnapping of the reeve
had been part of their plot.
It is often said that comments relating to criminal proceedings are proscribed
because of their tendency to prejudice the minds of the jury, but that where a
judge is sitting alone he may ignore such publications from the detached height
of his Olympian aloofness-” Such a view, if erected into an inexorable dogma,
presupposes that judges are merely “the habitations of bloodless categories
18(1953), 10 W.W.R. (N.S.) 379 (Man.).
19[1939] 4 D.L.R. 377; 72 C.C.C. 351 (Ont. C.A.).
20London Times, October 27, 1925
(K.B.D.), cited by A.L. Goodhart in
(1935),
48 Harv. Law Rev. 885 at p. 891.
21[1936] O.R. 482; 67 C.C.C. 89.
22See In re William Thomas Shipping Co. [1930] 2 Ch. 368, per Maugham J. at
p. 373; In re North Renfrew Election (1904), 9 O.L.R. 79 (C.A.), per Garrow J. A.
at p. 84; Meriden Britannia Co. v. Walters (1915), 34 O.L.R. 518 (Boyd C.).
No. 4]
CONTEMPT OF COURT
of the law which pursue their predestined ends.”’23 Mr. Justice Jackson of the
United States Supreme ‘Court expressed himself -bluntly when he wrote,
I do not know whether it is the view of the Court that a judge must be
thick-skinned or just thickheaded, but nothing in my experience or observation
confirms the idea that he is insensitive to publicity.24
The sentiments of a weliknown English criminal judge will also no doubt find
a ready echo in most judges’ hearts. Mr. Justice Humphreys in Delbert-Evans
v. Davies-Watson,25 writes:
I think it is a fallacy to say or to assume, that the presiding judge is a person
who cannot be affected by outside information. He is a human being, and while
I am not saying for a moment that it is likely that any judge would give a decision
which he would not have given but for information which bad been improperly
conveyed to him, it is embarrassing to the judge that he should be told matters
which he would much rather not hear and which would make it much more difficult
for him to do what is his duty …
It is impossible to be dogmatic about the question and to assert categorically,
on the one hand, that a judge must always be a man of fortitude whose tranquil
mind nothing can ever disturb, or to suggest, on the other, that his judicial
mechanism is of so delicate a character that the least outside comment will
throw it hopelessly out of gear. A balance has to be struck between these
extreme views. As there is -bound to be a difference of opinion, however,
where the line ought to be drawn beyond which comment on a pending case
may not go, and whether it has been transgressed in any particular case, some
fluctuation in the decisions is almost inevitable. ‘Certain generalizations about
them, however, are permissible.
First, comment that a judge is not impartial, that his mind is poisoned
against one of the litigants, that the decision is a foregone conclusion, or that
his mind will be influenced by non-legal considerations is invariably treated
as a contempt. Thus, during the famous Tichborne trial one Skipworth was
sentenced to three months’ imprisonment for declaring at a public meeting that
“Lord Chief Justice ,Cockburn was not the fit person to try anything in
connection with the case.”’26 In an old Upper Canada case, R. v. Wilkinson,27
the defendant was more fortunate. He, having made a full apology to the court,
no fine but only costs were imposed. ‘His offence consisted in publishing a
letter in which he predicted that one W. “was as certain to be convicted as a
libeller ever was before his trial.” 28 Yet it may be suggested with some diffidence
that such comments, made as they often are in the course of a heated public
controversy, ought only to be punished in the most extreme cases and then
23Craig v. Harney (1946), 91 L. Ed. 1546, per Frankfurter J. at p. 1560.
241bid. at p. 1562.
25[1945] 2 All E.P. 167 at p. 172 (K.B.D.).
26R. v. Castro, Skipwarth’s Case (1873), L.R. 9 Q.B. 230.
27(1877), 41 U.C.Q.B. 42.
2 8See also Stoddard v. Prentice (1898), 6 B.C.R. 308, 5 C.C.C. 103; R. v. McInroy
(1915), 9 W.W.R. 846, 25 C.C.C. 49 (Alta.); Levesque v. Rawley [1955] Que. S.C736.
McGILL LAW JOURNAL
[Vol. 6
only because of their tendency to embarass the judge in trying the case and not
‘because they libel him.
In the second place, the courts react strongly to coercion or intimidation
in the form of suggestions that they ought to try a dispute in a particular
manner or that a convicted prisoner deserves to receive a particular punishment.
‘Sensational newspapers masquerading as the defenders of public morals are
especially inclined to this form of comment. Thus in the New Zealand case of
A. G. v. Tonks, 2 9 after the accused had pleaded guilty to an indecent assault
on a little girl but before he had been sentenced, the defendant’s newspaper
demanded that he should meet “with the utmost rigour of the law when he
comes up -for sentence.” Threats of a more blatant type are happily rare,
but not entirely unknown.30 The public policy which requires curtailment of
such comments
is obvious. It may be placed on two grounds. First, if a
heavy sentence is in fact imposed there is a danger that the impression may
gain ground that the court has yielded to exterml pressure; in the second place,
the public interest may be injured in that the court, in its anxiety to prove
its independence from outside influence may inflict a much lighter sentence
than the offender actually deserved to receive. 31
In the third class of cases fall those comments in which the courts have been
divided in their opinion as to whether they constitute a legitimate ground for
complaint. They are generally cases in which one side to a pending lawsuit has
heaped ridicule or cast unfair reflections on the other. Election and libel cases
in Canada in particular have produced a crop of such incidents. 32 But, as
Moss ,C.J.A. pointed out on one occasion, “In election cases great latitude
must be allowed to public journalists in the language of comments for the
maldng of which any opportunity presents itself”,8 3 and there is no sound
reason why the courts should have to dissipate their energies adjudicating
the merits of party polemics.
But though injurious reflections on a party to a lawsuit may not influence
the court in its decision, yet it may, in extreme cases, deter that party from
continuing with the litigation for fear of ‘being held up to public obloquy, and
if the comment is of such a character the court will intervene to protect him.
29[1939] N.Z.L.R. 533. See also R. v. Thomas [1952] O.R. 22, 102 C.C.C. 257.
SOn Express Traffic Ass’n v. Cities of Montreal et al. (1919), 25 C.R.C. 61 at
p. 109 et seq. Sir Henry Drayton points that the Board had received numerous
threatening letters from members of the public and unofficial committees.
31Cf. Times-Mirror Co. v. Superior Court (1942), 86 L. Ed. 192, per Frankfurter
J. at 223.
32 1
re Lincoln Election (1878), 2 O.A.R. 353;
In re Bothwell Election Case
(1883), 4 O.R. 224; R. v. Woodworth (1886), 19 N.S.R. 186; it re North Renfrew
Election (1904), 9 O.L.R. 79; R. v. Bonnar (1903), 14 Man. R. 481 (appl’n dismissed) ;
Guest v. Knowles (1908), 17 O.L.R. 416 (appl’n dismissed); Staples v. Isaacs &
Harris [1939] 4 D.L.R. 556 (B.C.)
(appl’n dismissed); Sommers v. Sturdy (1956),
19 W.W.R. (N.S.) 583 (B.C.)
(appl’n dismissed).
331n re Lincoln Election (1877), 2 O.A.R. 353 at p. 369.
No. 4]
CONTEMPT OF COURT
Such judicial protection was extended in the St. James Evening Post”‘ case,
and in other cases decided since 1742.35 It is possible, however, to suggest
difficult cases. Not every one, for example, agrees with all the activities of
the Lord’s Day Observance Society. If the Society, for example, seeks to
prosecute the organizers of a charity show for staging a performance on a
‘Sunday, must criticism of their unpopular action be stilled until after the
conclusion of the hearing?36 In an English case3 7 the applicants for a committal
order had objected to certain slum clearance orders of the Ministry of Health,
and had entered an appeal against them. While the appeal was pending the
defendant newspaper published articles suggesting that the applicants were
hindering the progress of housing in the borough. The Divisional Court held,
however, in a very brief judgment, that these articles could not reasonably be
construed as calculated to deter the applicants from proceeding with their appeal,
and the application to commit was refused.
When are proceedings pending? As, generally, it is of the essence of the
offence that proceedings should be pending when the allegedly prejudicial
comments are published it is important to determine this question. “When a
case is pending”, the salutary principle has been laid down by an American
judge,3 8 “is not a technical, lawyer’s problem, but is to be determined by the
substantial realities of the specific situation.” In the case of a criminal prosecu-
tion the exigencies of a -fair trial demand that all comment be suppressed as
soon as the accused has been arrested or charged, even though he has not
yet been committed for trial.39 And if an arrest is imminent but has not yet been
effected comment may also be prejudicial to the accused, since “it is possible
very effectually to poison the fountain of justice before it begins to flow.”‘ 40
342 Ak. 469.
35See, for example, In re William Thomas Shipping Co. [1930] 2 Ch. 368; Hut chinson
v. Amalgamated Engineering Union, The Ttmes ,August 25, 1932, cited by Dr. Goodhart
in (1935), 48 Harv. Law Rev. 885, at p. 895; R. v. Mclnroy (1915), 9 W.W.R. 846,
25 C.C.C. 49; cf. Staples v. Isaacs & Harris, ante, footn. 32. Kingsley Martin recalls
that when Harold Laski issued a writ for libel during the general election of 1945
against various newspapers the then Lord Chancellor (Lord Simon) suggested that
he had only taken this step “to stop people’s mouths” and that he would bet that
“as soon as this election is over you won’t hear anything more about these writs.”
The Lord Chancellor subsequently apologised publicly about these remarks: Kingsley
Martin, Harold Laski, (1953), p. 165.
36My example, I hasten to add, is quite hypothetical and is not related to any case
of which I am aware.
at p. 225.
371n re South Shields (Thomas Street) Clearance Order 1931 (1932), 173 L.T. 76.
38Times-Mirror Co. s,. Superior Court (1942), 86 L. Ed. 192, per Frankfurter J.
39R. v. Parke [1903] 2 K.B. 432; R. v. Clarke (1910), 103 L.T. 636; R. v. Solloway
[1936] 0.R. 469, 67 C.C.C. 77.
per Lord Hewart at p. 851.
40R. v. Parke, ante, per Wills J. at p. 437; R. v. Daily Mirror [1927] 1 K.B. 845,
McGILL LAW JOURNAL
[Vol. 6
But even in relation to civil proceedings the English courts have held41 that
the ex parte publication of a statement of claim may constitute an interference
with a fair trial, and it is possible that the Canadian courts may adopt the
same attitude, although the question appears so far not to have called for a
definitive answer.4
It is, however, in relation to appeals that the courts have experienced the
greatest difficulty. If it is right to insist on newspapers and other public media
of mass communications exercising restraint in their comments during the
pendency of a trial, it is no less important that there should not ,be an endless
series of moratoria on public discussion of matters of public interest: for it
must be recognized that “public interest is much more likely to be kindled by a
controversial event of the day than by a generalization, however penetrating,
of the historian or scientist.”43 Mr. Justice Field, in Dallas v. Ledger,4’
explained the issues involved when he remarked,
Mr. Murphy, with his usual fairness, admitted that if the article had been
published before the notice of an application for a new trial, it could not have been
complained of. But surely the liability of the writer could not depend upon a
notice having been given of an application for a new trial? Suppose the new trial
refused by the Court, and an appeal brought. Suppose an appeal carried to the House
of Lords. Is the right of the public writer to be in suspense for two or three
years? The case would by that time have lost all interest. In that view the right
of comment would not be of much value.
Consequently, in civil cases, the consensus of judicial opinion in both England
and Canada inclines in favour of the view that once the trial is over comment
is to be freely permitted.45 It is important, however, to appreciate the rationale
4 1R. v. Astor (1913), 30 T.L.R. 10, per Scrutton L.J. at pp. 12-13; Chesshire v.
Strauss (1896), 12 T.L.R. 291, per Day J. at p. 291.
to
those in
issue
involving facts similar
42.An affirmative attitude was taken by McPhillips J. in Granger v. Brydon-Jack
(1918), 25 B.C.R. 526, at p. 528; R. v. Robinson & Co. (1954), 34 M.P.R. 257
(Nfld)
is an unusual case. A newspaper and radio station were there committed for
publishing ex parte affidavits filed by the Newfoundland government
in connection
with civil proceedings brought against a person who at the time of publication was
awaiting trial on a criminal charge
in
the civil proceedings. The defendants in the committal proceedings put forward the
defence that the accused’s solicitor had consented beforehand to the publication of
the affidavits, but this objection was held by Dunfield J. to be irrelevant; sed quacre.
Can his decision be justified on the ground that public policy does not allow an accused
person to barter away his right to an impartial trial?
4 3Times-Mirror Co. v. Superior Court (1942), 86 L. Ed. 192, per Black J. at p. 206.
4 4Dallas v. Ledger (1888), 4 T.L.R. 432 at p. 433.
45Dunn v. Bevan [1922] 1 Ch. 276; Glasgow Corp. v. Hedderwick & Sons [19181
S.C. 639; In, re O’Brien (1889), 16 S.C.R. 197, per Gwynne J. at p. 229. A similar
question arises where a motion for a new trial is pending or a new trial is likely
because of the disagreement of the jury. The English cases on this point are difficult
to reconcile. In re Labouchere (1901), 17 T.L.R. 578 and in R. v. Freeman’s Journal
[1902] I.R. 82 it was held that a contempt had been committed, but the opposite
conclusion was reached in Dallas v. Ledger (1888), 4 T.L.R. 432 and Metler v. Gounod
(1874) 30 L.T. 264.
No. 4]
CONTEMPT OF COURT
behind this rule. It is based on the reasoning that, in civil cases at least, the
appeal court is not likely to be influenced by such comments. But in criminal
cases the risk is very much greater, and it is on this ground, inter alia, that a
divisional court in England held in 194546 that reports on the oriminal activities
of a prisoner whose period for appealing had not yet expired might be held
to be in contempt of court.
B. Publications and other utterances libelling the courts.
By publications libelling the courts or a particular judge is meant those
publications, not necessarily referable to any pending proceedings, which tend
to -bring the administration of justice into hatred or contempt or lower the
courts in the esteem of the public –
in other words, disrespectful criticism of the
judiciary.4 7 To those familiar with the history of seditious libel in England4 8
it will be apparent that this definition is the same as the one that was, and
perhaps strictly speaking still is, applied in England to seditious libels affecting
the administration of justice,4
9 so that the question whether there was any
substantial distinction between these two forms of libel (apart from the
procedural aspects and the question of intent which will be dealt with later)
was at best of academic interest. Now, however, that four of -the five judges
constituting the majority of the Supreme lCourt of Canada appear to have
decided in Boucher v. The King” that a libel on the courts, without more,
is not seditious, the distinction becomes of great importance because if it is
the case that historically no real distinction was drawn between these two
offences –
then a cogent argument can be made
out that a libel on the courts in Canada should no longer be punishable as
a contempt of court either. In what follows I make no attempt to answer the
historical question definitively, but desire merely to draw attention to a few
points which I believe justify the question being raised.
assuming they were two –
40 In Delbert-Evans v. Davies & Watson [1945] 2 All E.R. 167. See also R. v.
Solloway [19361 O.R. 467.
47Dr. Goodhart defines it as “hostile criticism of the judge as judge”: (1935), 48
Harv. Law Rev. 885 at p. 898. See also Odgers on Libel & Slander, 6th ed., p. 431.
48Stephen, History of the Criminal Law of England, Vol. II, ch. XXIV; Chafee,
Free Speech in the United States, (1946), ch. I.
40Stephen, A Digest of the Criminal Law, 7th ed., articles 123-126. Referring to
Stephen’s definition Locke J. in Boucher points out that the words ‘hatred or contempt
against the administration of justice’ “must necessarily, I think, include the manner
of its administration by individual judges or others discharging judicial functions.”
[1951] S.C.R. at p. 317. See also Dicey, The Law of the Constitution, 7th ed., p. 240.
50[1951] S.C.R. 265. The four were Kerwin C.J. and Locke, Kellock & Estey JJ.
The fifth member, Rand J., did not find it necessary to deal with the question. See
[1951] S.CR. 265, at pp. 286-7.
McGILL LAW JOURNAL
[Vol. 6
During the Middle Ages libels as an offence appear to have been un-
important. ‘Coke cites only two cases in whioh persons were indicted for
libelling the King or other important persons of the realm. 1 Stephen writes,
till
the Court of Star Chamber was at
[t]here is no reason to doubt that practically libels attracted comparatively
little attention
the height of
its power, by which time the invention of printing, and the great intellectual
movement of which it was one symptom, had given an importance to political
writings which they did not possess before. It must, however, be remembered,
that for a long time the offences which were afterwards treated as seditious libels
were dealt with in a different manner and with much greater severity, for though
words were not regarded as overt acts of treason by themselves, writings were
(1 Hale P.C. 112), if they were considered to display a treasonable intention, so
that what would now be regarded at most as libels may in earlier times have been
punished as treason. 52
Moreover, from the time of Edward IH onwards down to the reign of
James I many statutes creating new felonies and misdemeanours dealt specific-
ally with the discussion of religious and political subjects. It will also be
recalled that the system of licensing of books was not allowed to fall into
abeyance until 1694, and so long as that system prevailed it was not likely
that licences would be granted to those whose views were suspect or that
those who received them would be likely to abuse their privilege.
-Coke’s report under the heading of The Case de Libellis Famosis 3 contains
possibly the earliest general reference -to the law relating to libels on judges.
According to Coke the Star Chamber resolved in that case, as to such libel,
that
5 1Third Institute, 174, sub. nom. “Libels and Libellers”. The two are, first, one of
10 Edw. III (1337)
in which Adam de Ravensworth was convicted for calling Richard
of Snowshull “Roy de Raveners”; the other of 18 Edw. III (1345)
in which John
de Northampton, an attorney, wrote a letter to Ferrers, one of the King’s Council,
saying that neither the judges of the Court of King’s Bench nor their clerks “any
great thing would do by the commandment of our lord the king, nor of Queen Philip
(Philippe)
in that place more than of any other of the realm.” Sir John Fox was
able to trace only four recorded instances of convictions for libels on the court up
to the year 1600, of which John de Northampton’s case (supra) was one: see Sir
John Fox, Contempt of Court, Appendix, items (41),
(42) and (71). In Wrayltham’s
case (A.D. 1618), 2 How. St. Tr. 1064, which was a proceeding before the Star
Chamber for a libel on Lord Bacon by accusing him of having done injustice, Lord
Hobart C.J.C.P. at p. 1080 refers as precedents to cases involving inter alia, libels on
non-judicial members of the government. Thus it would seem that neither he nor Lord
Coke regarded libels on the judiciary as falling into a special legal category. Odgers
on Libel & Slander, 6th ed., after referring to the three remedies for contempt of
court (indictment for misdemeanour, injunction and summary punishment) refers (ibid.
432) under the heading of “information or indictment” to page 426 of his work wherein
he deals with seditious libels on the administration of justice, thus apparently regarding
an indictment for seditious libel and an indictment for contempt of court as being
one and the same.
-52Stephen, History, Vol. II, p. 302.
6Coke’s Rep., Vol. III, 254.
No. 4]
CONTEMPT OF COURT
If it be against a magistrate, or other public person, it is a greater offence;
for it concerns not only the breach of the peace, but also the scandal of government;
for what greater scandal of government can there be than to have corrupt or
wicked magistrates to be appointed and constituted by the King to govern his
subjects under him? And greater imputation to the state cannot be, than to suffer
such corrupt men to sit in the sacred seat of justice, or to have any meddling in
or concerning the administration of justice.54
It will be observed that Coke draws no distinction between libels on judges
and libels on other officers of state holding high office, nor does he suggest
that there are different kinds of possible libels on the judiciary, that is to say,
one known as “contempt of court” and another as “seditious libel”. After
De Libellis Famosis and before 1762 there were -a number of indictments for
libels on the courts and so far as we have been able to discover no such
distinction appears to have been drawn in them. 5 The task of determining
whether a distinction was deemed to exist is made the more difficult by the
rule-
that
an
libel need not use the word
“seditious”.
for which R. v. M’Hugh, [1901] 2 I.R.569 is clear authority –
indictment or information for seditious
Then, did The King v. Alnon purport to draw such a distinction? If such
was Mr. Justice Wilmot’s intention, no hint of it will be found in his judgment.
The burden of it was simply to establish the proposition that libels on the courts
were from time immemorial punishable summarily as well as by indictment
and information. Accurate historical scholarship, however, has now shown this
view to be untenable and has established the fact that before the 18th century
and after the abolition of the Star Chamber libels on judges published out
of court, in so far as the common law courts at least were concerned, were
always tried by the regular methods of trial and never summarily.5 6 Neither
does any such distinction appear to have been adverted to in a number of
reported trials involving libels on the courts held subsequent to The King v.
Almon and prior to Boucher’s case.57
The four members of the Supreme :Court in Boucher v. The King who held
that a libel on the administration of justice was not seditious unless there
was also an incitement to disobey the lawful orders of the courts were faced
with an obvious difficulty, for they could not ignore the fact that in England
and Ireland trials for libels on the courts had been reported in which no
such incitement had been proved or alleged. These cases therefore had to be
distinguished in one of the following three ways: (1) on the ground that they
54Ibid. at p. 255.
S5E.g., Jeffes’ case (1630), Cro. Car. 175; 79 E.R. 753; Radley’s case (1679), 7
How. St. Tr. 701; R. v. Smith (1680), 7 How. St. Tr. 931; R. v. Catr (1681) 7 How.
St. Tr. 1114.
tGFox, “The Summary Process to Punish Contempts”, 25 Law Quar. Rev. 238, 354;
ibid., The King v. Alnon, 24 Law Quar. Rev. 184, 266.
W7E.g., R. v. Gordon (1787), 22 How. St. Tr. 177; R. v. Watson (1788), 2 T.R. 199;
R. v. White & Hart (1808), 30 How. St. Tr. 1131, 1193; R. v. M’Hugh [1901]
2 I.R. 569.
McGILL LAW JOURNAL
[Vol. 6
were not binding on the Supreme Court and that our more enlightened
democracy called for the fewest possible restraints on freedom of speech.
Although the judges were quick to point out the different political conceptions
of the relationship between a government and its people prevailing in the
twentieth as compared with the eighteenth and earlier centuries, with the
possible exception of Kerwin J., they were not prepared to write the law
anew, as it were, and to ignore previous decisions entirely; (2) on the ground
that these cases were wrongly decided; or (3) on the ground that the indict-
ments or informations in these cases charged the offence of “contempt of
court” and not of “seditious libel”. Kerwin J. held that R. v. M’Hugh18
should not be followed.5 Kellock J. adopted the third ground.60 Estey J.,
although he agreed with the majority, did not refer to them and therefore
had no need to distinguish them.61 Locke J. adopted both the second and
the third ground. 62 He distinguished Coke’s De Libellis Fanosis,3 R. v.
Tutchin,64 and R. v. Francklin6 5 on the ground that they were based on the
now invalid reasoning that judges being appointees of the Crown a libel on
them was a libel on the King. As for R. v. White and Hart,60 ‘he did not regard
the case as an indictment for seditious libel, and in his opinion R. v. Sulliva6 7
and R. v. M’Hugh6s were bad law. Mr. Justice Rand, who formed the fifth
member of the majority, found it unnecessary to express any opinion since
he held that the publication before the court was in any event nothing more
than a legitimate airing of grievances by a minority which felt itself oppressed.
Of the dissenting members of the court, Rinfret 1C. J. did not deal with
libels on the administration of justice. Cartwright J., on the other ‘hand,
delivering the judgment of himself and Fauteux J.69 (and with whose opinion
on this point Taschereau J. concurred) 70 held that, while an intent to stir up
ill-will between different sections of the community was not seditious without
an accompanying
the
administration of justice into hatred or contempt, without more, sufficed to
make it seditious. The learned judge justified the distinction on the gound that
a libel on the administration of justice must of necessity lead to an interference
with lawfully constituted authority, whereas, in his opinion, a libel on another
to violence, a mere intention to bring
incitement
r8[1901] 2 I.R. 569.
59[1951] S.C.R. 265 at p. 283.
60 bid. at p. 303.
61Ibid. at p. 315.
62Ibid. at pp. 318-27.
6377 E.R. 250.
64(1704), 14 How. St. Tr. 1095.
65(1731), 17 How. St. Tr. 626.
66(1808), 30 How. St. Tr. 1131, 1193.
67(1868), 11 Cox C.C. 44.
68[1901] 2 I.R. 569.
6911951] S.C.R. 265, at pp. 344-5.
70Ibid, at pp. 283-4.
No. 4]
CONTEMPT OF COURT
section of the community would not necessarily have this effect. He appears
also7 ‘ to have assumed that there is a clear difference between a seditious
libel and a libel that is merely a contempt of court, but unfortunately neither
he nor any of the other learned judges who made the same assumption explain
what this difference is.
It may be said, however, that -there is at least one important distinction
between the two offences: in the case of seditious libel an intention to bring the
administration of justice into hatred or contempt must be proved, whereas in
the case of a contempt of court intention is quite irrelevant. There are two
aspects to this question: the first is whether ignorance of the contents of the
offending publication affords a defence to either misdemeanour, and the second
is whether the accused can give evidence that his intent was not to bring the
courts into ill-repute but was of a more praiseworthy character.
As to the first, it is no doubt true, as R. v. Griffiths72 shows, that ignorance
of the contents of an article which comments prejudicially upon a pending trial
will not excuse the publishers or distributors. Whether the same stringent rule
will be applied to libellous comments upon a judge is less certain, but the answer
is probably in the affirmative. In McLeod v. St. Aubyn,73 for example, the
Privy Council held that the appellant who had innocently lent a copy of the
paper containing the libel to a friend without knowledge of its contents was
neither constructively nor necessarily guilty of contempt of court. The Judicial
,Committee indicated, however, that the position ‘would have been different if a
printer or publisher had been charged, because ” a printer and publisher intends
to publish, and so intending cannot plead as a justification that he did not know
ihe contents.” 74 The same rule, however, applied before Fox’s Libel Act and
“was for many years after the Libel Act acted upon without the smallest
question or difficulty.” 75 In R. v. Cuthell,76 &or example, a bookseller was
convicted of seditious libel even though he had not read the pamphlet and had
bona fide assumed it to be on a non-political subject. Whether this anomalous
rule would still be applied in Canada today, in the case of seditious libels,
is doubtful.
Turning now to the second point, the question of the evidence of intent,
Stephen has shown in his Hitory”” that prior to Fox’s Libel Act it was not
necessary to show any liens rea on the part of the accused in a prosecution
for seditious libel, although pleaders frequently confused the issue by gratuitously
imputing malicious intentions in the verbose indictments that were then popular.
The reason for the rule was that the intentional publication of written blame
7’Ibid. at p. 344.
72[19571 2 W.L.R. 1064.
73[1899] A.C. 549.
74Ibid. at p. 562.
75Stephen, History, Vol. II, p. 361.
76(1799), 27 How. St. Tr. 641.
77VoI. II, ch. XXIV.
McGILL LAW JOURNAL
[Vol. 6
on any public man was considered nala per se, so that proof of any further
intention, such as an intention to ‘hold that person up to contempt, was quite
unnecessary. 78 The Libel Act did not expressly change this rule but it has
generally been supposed that the Act assumes proof of a mens rea to be
necessary. 79 What of a libel which is punished as a contempt of court? Can
the accused today give evidence that his intention was not to undermine the
authority of the courts but, -let us say, to urge reforms or to correct judicial
error? No certain answer can be given to this question, since we cannot recall
any contempt proceedings where the outcome turned upon the admissibility of
such evidence. It is submitted, however, in the light of Lord Atkin’s judgment
in Anzbard v. A. G. of Trinidad & Tobago,80 and other judgments to the
same effect, that the question of the defendant’s intention is now as material
in a contempt proceeding as it is in an indictment for seditious libel. If
written criticism of the courts per se is no longer a contempt of court then
the tribunal must be satisfied that the defendant’s intention was to undermine
the authority of the court. Generally speaking, the publication will speak for
itself and betray the author’s intention, but in principle it should be open to
the accused to show that his words bear some other construction and were not
intended to bring about the mischievous result which might otherwise be
attributed to them. Whether the court accepts his explanation is another matter.
But even if this submission is not accepted as sound law, there is no reason
to doubt that at least until 1792 no distinction was drawn between a contempt
of court and a seditious libel in so far as the question of intention was concerned.
Assuming, however, for the purposes of argument, that historically a clear
distinction was drawn between the two offences, what can be said in favour of
punishing libels on the courts today in respect of comments published after
the conclusion of a case? The very question would have seemed impertinent
in the days of Lord Mansfield and Lord Kenyon, for the notion that any man
was free to criticise and to impute blame was alien and repugnant to their
theories of government. Baron Wood echoed a widely accepted sentiment
of the day when ‘he said in the course of his address to the jury in the
prosecution of one Drakard for printing an article on the amount of flogging
in the British army:
It is said that we have a right to discuss the acts of our legislature. That
would be a large permission indeed. Is there, gentlemen, to be a power in the
people to counteract the acts of the parliament and is the libeller to come and
make the people dissatisfied with the government under which he lives? This is
not to be permitted to any man –
it is unconstitutional and seditious.8 1
!Since the turn of the 19th century, however, theories as to the relationship
between the rulers and the people have undergone a radical change, and it
78 Ibid. pp. 353-4.
791bid. pp. 358-9.
8011936] 1 All E.R. 704, esp. at p. 709. (P.C.).
81(1811), 31 How. St. Tr. 495 at p. 535.
No. 4]
CONTEMPT OF COURT
would be doing a grave injustice to our latter day judges to suggest that they
have failed to accommodate themselves to the more democratic temper of
our times. The modem view, indeed, as expressed by Lord Atldn in 1936 is
that “Justice is no cloistered virtue, she must be allowed to suffer the scrutiny
and respectful even though outspoken comments of ordinary men.”’82 The sting,
however, lies in the qualifying word “respectful”, for who is to determine
what is “respectful” and what is “hostile” criticism? These are elusive and
subjective criteria in the application of which honest men will differ widely.
Those who defend the power of the courts to protect themselves against
unfair and scandalous attacks may point to the fact that during the last fifty
years or so there are only three reported cases in England83 in which the
courts have exercised the power and that only nine or so reported applications
for attachment, not all of which have been granted, have come before the
courts in Canada between 1877 and 1958,84 and that therefore it cannot be said
that the power has been abused. The first proposition proves little, for what
matters is the fact that the power is potentially there and may always be
exercised in restraint of criticism deserving of public expression. -In the year
1954 alone there were two reported convictions in Canada for libels on the
court,85 thus showing -the vitality of the power and, if one may say so, the
pertinacity with which the courts appear to cling to it.
The second proposition is unfortunately not borne out by the cases. It is
difficult, for example, to find any justification for the committal of a newspaper
publisher for criticising the inequality of sentences, as happened in Ambard
v. A. G. Trinidad & Tobago.8 6 The fact that the Privy Council there reversed
82Ainbard v. A.G. of Trinidad & Tobago [1936] 1 All E.R. 704 at p. 709.
83R. v. Gray [1900] 2 Q.B. 36, criticised by Hughes in 16 Law Quar. Rev. 292;
R. v. Editor of New Statesman (1928), 44 T.L.R. 301, which forms the background
for Laski’s article in (1928), 41 Harv. Law Rev. 1031; and R. v. Colsey, May 9, 1931,
noted in (1931), 47 Law Quar. Rev. 315.
841n re Wallace (1866), L.R. 1, P.C. 283; In ‘re Hawke (1888), 28 N.B.R. 391;
In re O’Brien (1889), 16 S.C.R. 197, rev’g 14 O.A.R. 184; Stoddard v. Prentice
(1898), 6 B.C.R. 308 (appl’n dismissed); R. v. Bonnar (1903), 14 Man. R. 481
(appl’n dismissed on other grounds); In re Ivens [1920] 1 W.W.R. 747, 32 C.C.C.
358; apropos the Winnipeg General Strike of 1919 with which this case is intimately
connected, see Carl Wittke, A History of Canada, 3rd ed. (1941), p. 330, and passiin
Harold A. Logan, The History of Trade Union Organizations in Canada (1928). For
the trial judge’s summing up in Russell’s case which, inter alia, prompted Ivens to
describe him as “a poisoned judge”, see [1920] 1 W.W.R. at p. 637. In re Miller
(1921), 54 N.S.R. 529; R. v. Vancouver Province (1954), 12 W.W.R. (N.S.) 349
(B.C.); R. v. Western Printing & Publishing Ltd. (1954), 34 M.P.R. 129, 111 C.C.C.
122 (Nfld). See also R. v. Wilkinson, re Brown (1877), 41 U.C.Q.B. 47, per Harrison
the publications were also treated as
C.J. at p. 63. In some of the above cases
tending to interfere with pending trials.
85R. v. Vancouver Provinces, and R. v. Western Printing & Publishing Ltd: see
previous footnote.
86[1936] 1 All E.R. 704.
McGILL LAW JOURNAL
[Vol. 6
the conviction by the British West Indies court, as indeed they have reversed
other contempt findings by colonial courts,8 7 is surely proof enough that the
power has been abused in the past nd may be abused again in the future.
Then again, what was so wicked about the newspaper article that commented
on a judgment by a former Labour Attorney-General in the following terms:
“Lord Justice Slesser, who can hardly be altogether unbiased about legislation
of this type, maintained that really it was a very provisional order or as
good a one as can be expected in this vale of tears” ?11 Or for that matter about
the more outspoken editorial of “The New Statesman & Nation” which claimed
that “an individual owning to such views as those of Dr. Stopes cannot
apparently hope for a fair hearing in a court presided over by ‘Mr. Justice
Avory –
and there are so many Avorys” ?9 Is it really to be assumed that
judges are always free from perhaps unconscious bias or prejudice, especially
in those cases involving controversial political, social or religious issues? What
is true of the judgments in England and her colonies applies with equal force
to the Canadian decisions. Eric Nicols’ column in “The Vancouver Province”
to which ,Clyne J. took exception in 19540 may have been unfair to him and
to the jury and a gratuitous slur on those who were discharging an unpleasant
duty, but here, as in Boucher v. The King,91 the writer was expressing sincere
convictions which he should have been entitled to express, subject to the
ordinary laws of libel. Restrained and scrupulously fair comments will rarely
be found when feelings run high.
But, the protagonists of the contempt power further argue, if judges are
to be exposed to the scurrilous abuse of every writer their position becomes
impossible. They cannot be expected to desert their official duties in order to
bring libel actions to safeguard their reputations. Politicians, they point out, can
excoriate their opponents with as much zest as their opponents villify them,
bYut judges, by historic compulsions and by the nature of their office, are
prevented from joining in the nslge of public debate. It is only fair, -therefore,
it will be concluded, to extend to them a measure of protection commensurate
with their enforced silence. Moreover, it is said, if a judge has erred there
are traditional means for correcting his faults, even to the extent of having his
conduct scrutinized by Parliament.92
There is undoubted merit in some of these arguments and one would not
wish, I am sure, to encourage irresponsible or malicious criticism of the
judiciary, but as is so often the case it is a question of weighing and choosing
87See In the matter of a Special Reference from the Bahamas Islands [1893] A.C.
138; McLeod v. St. Aubyn [1899] A.C. 549.
88R. v. Colsey, ante, footn. 83.
89R. v. Editor of New Statesman, ante, footn. 83.
9oR. v. Vancouver Province, ante, footn. 84.
91[1951] S.C.R. 265.
92See A.L. Goodhart in (1935). 48 Harv. Law Rev,. at p. 903, and the argument
of Mr. Wirt, one of the counsel for Judge Peck, in Stansbury, op. cit., at pp. 520-1.
No. 4)
CONTEMPT OF COURT
between important and cherished values, and when that is done I think it will
be found that the disadvantages of the power greatly outweigh its possible
justification. Moreover there is a basic fallacy in the supposition that respect
for the judges can be compelled in the same manner as an order of the court
can be enforced. It was a wise judge who said,
My duty as a Judge is to administer the law as I find it, but if I am at liberty
to express any personal opinion upon the expediency of exercising the power of
the Court to summarily punish contempts of court not committed in its presence,
and not calculated to obstruct the course of justice, but by the publication of libellous
matter unfairly criticising or impugning the action of the Court or imputing impure
or corrupt motives to its members, I would venture to say that in such cases the
exercise of this arbitrary power would be a questionable remedy, either for main-
taining respect for the Court itself or vindicating the characters of its members. 93
And, in more forceful language, Mr. Justice Black of the United State
Supreme Court was expressing a truism not restricted to his own country when
he pointed out that,
The assumption that respect for the judiciary can be won by shielding judges
from published criticism wrongly appraises the character of American public
opinion. For it is a prized American privilege to speak one’s mind, although not
always with perfect good taste, on all public institutions. And an enforced silence,
however limited, solely in the name of preserving the dignity of the bench, would
probably engender resentment, suspicion and contempt, much more than it would
enhance respect.9 4
Judges are not the only public servants who must suffer criticism in silence;
civil servants are subject to the same restraint. The fact that a judge’s decision
can be appealed from is not sufficient, for it may be the appeal court’s conduct
that is itself challenged, and the criticism ‘may stem from a stranger who is
not a party to the action and therefore has no right of appeal. Moreover, the
strictures may be upon the judge’s conduct at large, and may not be referable
to any case in particular. Many provincial legislatures in Canada only sit
for three or four months of each year (assuming they are empowered to
discuss judicial behaviour), and no member may be sufficiently interested
to air some local or private grievance. In any event it is a questionable doctrine
which preaches in the 20th century that only the legislature can question
the fitness of a judge to sit on the bench. 3
The most important criticism, however, to be levied against the power of
the state to punish disrespectful criticisms of the court – whether it be
93R. v. Wilkinson, re Brown (1877), 41 U.C.Q.B. 47, per Morrison J. at p. 124.
9 4 Times-Mirror Co. v,. Superior Court (1942), 86 L.Ed. 192, at p. 207.
9 5Even members of a parliament may be prevented from commenting upon judicial
affairs. The Capetown correspondent of the Manchester Guardian reported in 1955 that
after the South African government announced its decision to appoint five new appeal
it virtually
court judges to resolve the constitutional deadlock, the Opposition felt
impossible to comment upon this news without impugning the impartiality of the judges
and thereby possibly committing a contempt of court. See Weekly Manchester Guardian,
March 31, 1955, page 2. Whether the correspondent was right in his interpretation
of the law matters less than the fact that comment upon a matter of such great public
importance should hang under the threat of a judicial veto.
McGILL LAW JOURNAL
[Vol. 6
exercised summarily or by indictment is of secondary importance –
is that
those who justify its exercise misconceive the nature of freedom of speech.
The cherished right to speak one’s mind freely on all topics of public interest
is founded in the belief that men are fallible beings, and judges no less so,
and that only a vigorous stream of criticism “expressed with candour however
blunt” can ensure that those who are entrusted with immense power and great
responsibilities do not abuse their privileged positionY8 History and the
occasions on which libels on the courts have been punished give substance and
justification for this belief.
C. Constructive contempts of court –
the American position.97
to introduce to the New World
The law relating to contempts of court in the United States has from the
earliest beginnings of the Republic had a chequered and controversial career.
Attempts ‘were made by the Pennsylvania and New York courts in three cases
decided between 1788 and 180998
the
Blackstonian doctrine of the ‘inherent powers of the courts to vindicate their
authority and dignity, but public opinion was so aroused by what was regarded
as a judicial usurpation of power that the Pennsylvania legislature in 1809,
and the New York legislature in 1829, enacted legislation confining the summary
power of punishment by the courts to (a) official misconduct -by officers of
the court; (b) disobedience to the orders of the court; and (c) misconduct
in the actual presence of the court actually obstructing the administration of
justice. The power to punish summarily for constructive contempts of court
was expressly declared illegal, but acts and publications out of court tending
to obstruct the administration of justice were made punishable on indictment.09
The strength of early American feeling against the power summarily to punish
constructive contempts may further be gauged from the celebrated trial, in
9 6″Comment on what a judge has done –
criticism of the judicial process in a
particular case after it has exhausted itself –
no matter how ill-informed or irrespon-
sible or misrepresentative, is part of the precious right of the free play of opinion.
Whatever violence there may be to truth in such utterances must be left to the
correction of truth”: Craig v. Harney (1946), 91 L. Ed. 1546, per Frankfurter J. at
p. 1558. It is important to note this further restraint on freedom of speech, namely,
that justification cannot be pleaded to a charge of libelling the courts: Archbold’s
Crindual Pleading 34th ed., p. 1309; R. v. M’Hugh [1901] 2 I.R. 569.
97For the account that follows, up to 1940, I have relied heavily on two excellent
articles by Messrs. Nelles & King, ‘Contempt by Publication in the United States”,
(1928), 28 Col. Law Rev. 401 and 525, and to a much lesser extent on Harold W.
Sullivan’s monograph on Contempts by Publication, 2nd ed. (1942),
for the loan of
which I acknowledge my indebtedness
to the University of Washington law library.
Other sources are indicated in subsequent footnotes.
98Respublica v. Oswald (1788), 1 Dallas 319 (Pa.); Bayard & Petit v. Passmore
(1802), 3 Yeates 439 (Pa) ; Case of J.V.V. Yates (1807), 4 Johns, 316 (N.Y.).
9 9Nelles & King, op. cit., p. 415 and pp. 418-22.
No. 4]
CONTEMPT OF COURT
1831, of Judge Peck in an impeachment by the House of Representatives. 100
Judge Peck was a federal district court judge in Missouri at a time when
the territory had only recently been annexed by the United States and land
speculation was at its height. An attorney by the name of Lawless, who
represented many such speculators, had strongly criticised one of Peck’s
adjudications which adversely affected many of his clients’ claims. The judge
thereupon had him attached for contempt of court, sentenced him to a day’s
imprisonment, and also suspended him from practice for a lengthy period.
Lawless’ political friends made several attempts to have Articles of Impeach-
ment drawn up against the judge, one of which eventually succeeded, and
in the ensuing trial before the United States Senate, Peck, ‘by the narrow
margin of one vote, just escaped impeachment. One of the results of the trial,
however, was that -Congress in the same year enacted a federal contempts
statute. This act was a synthesis of the earlier Pennsylvania and New York
legislation, and, like them, expressly restricted the power of the federal courts
to inflict summary punishment for misbehaviour committed in the presence
of the court, “or so near thereto”. 0’L All three acts are still on the statute
books.
The reasons that would appear to account for the strength of this early
American feeling against the contempt power are both numerous and com-
plicated. 10 2 The American Constitution had guaranteed to every one the right
to trial by jury “as heretofore”, and the summary power appeared to the
contemporaries as an unjustifiable invasion of this fundamental right. The
judges were also suspect for their political leanings –
some of the early cases
had a political background –
and with memories of the English and American
sedition trials and of the memorable struggle in England, which culminated
in Fox’s Libel Act of 1792, for the right of the jury in sedition trial to return
a general verdict, still fresh in the public mind, the right to a trial by one’s
peers assumed an enhanced importance for the safeguarding of republican
liberties. Moreover, “trial by press” was still an unknown evil. Some of the
early cases ‘were also blemished by the fact that the attachment proceedings
had taken place before the very judge whose susceptibilities had been injured
by the offending publication.
It would seem, moreover, that these misgivings about the way the judges
might have exercised their summary powers if given a free hand were justified
by the course of subsequent events. In 1860, twenty-three out of the thirty-three
states of the Union had statutes limiting the summary powers of the courts, in
1928 thirty-four out of forty-eight states.’0 3 But in 1855 a sharp set-back was
:0OSee Arthur J. Stansbury, Report on the Trial of James H. Peck (Boston, 1833).
10Nelles & King, op. cit, pp. 430-1.
‘0 2Nelles & King, op. cit., pp. 407 et seq., p. 533 et seq; Sullivan, op. cit., pp. 122-3,
185 et seq.
103Nelles & King, op. cit., pp. 533, 536.
McGILL LAW JOURNAL
[Vol. 6
given to many of these enactments by the decision in State v. Morill.04 The
Arkansas court in that case held that the enactment purporting to limit its
power was unconstitutional, on the theory that the state courts derived their
powers from the state’s constitution, that one of those powers was the inherent
power to punish summarily -for contempts of court, and that one arm of
government was impotent to restrict the powers of any other. The courts of
half of the American states have followed the Arkansas decision, and those of
many others have been affected by it, with the result that “Of the forty-eight
States of the Union, there are only six in which we find neither positive
adjudication of summary punishability nor indications or judicial tendency in
that direction”.105
The federal courts also did much to loosen the original and natural meaning
of the federal statute until finally, in 1915, the Supreme ‘Court in Toledo
Newspaper Co. v. U.S. 106 held that the “so-near” clause justified a lower
court’s summary conviction of the petitioner who had published articles out
of court charging the judge with favouring one of the litigants to a public
utility dispute.
What is particularly significant, however, is the way in which the American
courts have exercised their re-assumed summary powers. In only fifteen out
of fifty-eight reported decisions between 1831 and 1928 did the case relate
to a jury trial, and only five of the fifteen were of a character likely to interest
the sensational press. Moreover, thirty of the fifty-eight cases appear to have
had some political complexion, and many of the so-called contempts were really
scandals on the courts 07
An Anglo-Canadian lawyer may well wonder why the American courts have
exercised their powers so sparingly in cases where it was most urgently needed,
that is to say, in connection -with criminal trials, -for the “trial by press”
phenomenon in these cases is an acknowledged shortcoming of the American
administration of justice. The celebrated Hauptman trial provides a vivid
example of what can happen in practice.’ 08 There was nation-wide discussion,
both before and during the trial, of the merits of the prosecutor’s case, including
open avowals of the guilt of the accused. Hauptman’s previous convictions were
freely publicised, and counsel on both sides gave frequent press interviews,
published statements, and even made broadcasts. Photographs of the court
scene were taken during the trial, and when the court was not in session
placards were placed throughout the court-room to show sight-seers where
104(1885), 16 Ark. 384, referred to with approval by the Chief Justice in Re Gerson
[1946] S.C.R. 538, affirmed
[1946] S.C.R. 547.
33, 85 L.Ed. 1172.
‘ 05Nelles & King, op. cit., p. 543.
106(1917), 247 U.S. 402, 62 L.Ed. 1187, reversed in Nye v. U.S. (1940), 313 U.S.
‘ 07Nelles & King, op.cit., pp. 544-5, 548-9.
‘ 0 sSee Robbins, “The Hauptman Trial in the Light of English Criminal Procedure”,
(1935), 21 Am. Bar Ass’n Journ. 301.
No. 4]
CONTEMPT OF COURT
the principals were sitting. During the trial, more than once there was applause
from the public galleries when one of the state witnesses scored a point against
defence counsel.’ 09
Following the Hauptman trial a special committee of the criminal section
of the American Bar Association put forward a series of recommendations to
redress the many abuses which were committed during the trial,”
and other
committees have made more recent efforts in the same direction.”‘ The most
sincere admirer of the American administration of justice would not claim,
however, that any of these efforts have been conspicuously successful. The evil
of “trial by press” in the United States appears to be as widespread as ever.
The courts there, it is said, will not exercise their undoubted powers for fear
of arousing the hostility of powerful newspapers and thus of jeopardising the
judges’ chances of re-election.” 2
Such in any event was the position up to 1942 when the Supreme Court
of the United States began to deliver the first of the trilogy of its important
opinions on the constitutionality of the contempt power. Until that year, with
two possible exceptions, 1 3 the legality of punishing publications which tend to
interfere with pending proceedings appears never to have ‘been seriously
questioned. Only the legality of the summary method of punishment was
challenged. The managers of the impeachment proceedings in Judge Peck’s
trial had indeed expressly recognized the legitimacy of abridging the freedom
of the press where such comment was concerned, 14 as by implication did also
the majority of the Supreme Court in the Toledo Newspaper case.” 5
The reason for this belated attempt to invoke the ‘Constitution appears to
be this. Until Mr. Justice Holmes first enunciated the “clear and present
danger” test in 1919, in Schenck v. U.S.,”16 (subsequently more fully developed
by him in his celebrated dissent in the Abras”17 case), the furthermost limits
of the First Amendment which declared it unlawful for Congress to make
any law abridging, inter alia, the freedom of the press had not yet been
explored. Later, in 1925,”1
the Supreme -Court still further extended the
109See also Perry, “The Courts, the Press, and the Public,” (1931), 30 Mich. Law
Rev. 228, at p. 231 et seq.
“1ORecommendations of Special Committee on ways of curbing excessive publicity in
connection with criminal trials, (1936), 22 Am. Bar Ass’n Journ. 79; (1936), 20 Journ.
Am. Judic. Soc. 83.
“‘See Edwin M. Otterbourg, “Fair Trial and Free Press: A New Look in 1954”,
40 Am. Bar Ass’n Journ. 838.
112Perry, op cit., ante footn. 109, p. 234; Sullivan, op. cit., pp. 122-3.
113Ex p. Hickey (Miss.), 4 Smed. & Marsh, Append., cited by Sullivan, op. cit.,
p. 122, footn. 14; Toledo Newspaper v. U.S. (1917), ante, footn. 106.
114Stansbury, op. cit, pp. 91, 291, 293, 382, 400.
11(1917), 247 U.S. 402, per White C.J. at p. 419.
116(1919), 247 U.S. 47, 63 L. Ed. 470.
17(1919), 250 U.S. 616, 63 L.Ed. 1173.
IIsGitlow v. New York, 268 U.S. 652, 69 L.Ed. 1138,
McGILL LAW JOURNAL
[Vol. 6
scope of the First Amendment by its holding that the restriction imposed
in it upon the powers of Congress applied equally, via the medium of the
Fourteenth Amendment, to limit the power of the states.
The first of the three cases to come before the Supreme Court in which
the contempt power was challenged consisted of two consolidated petitions.
In the first of these, Times Mirror Co. v. Superior Court of Los Angeles,1″0
a decision of the Supreme Court of California was attacked which affirmed
a lower court’s conviction of the publishers of the Los Angeles Times for
committing a contempt of court. The newspaper had published an editorial
which was designed to influence a judge in a sentence he was shortly to impose
on two members of a trade union who had been convicted of assaulting
non-union truck drivers. Their counsel ‘had applied to the court for a sentence
of probation, and while that application was still pending the petitioners
published an editorial which declared that “Judge A. A. Scott will make a
serious mistake if he grants probation to Mathew Shannon and Kennan Holmes.
This community needs the example of their assignment to the jute mill.”
The second of these consolidated petitions, Bridges v. California,2″ also
concerned an appeal from conviction by a -California court. An injunction had
been granted against a C.I.O. union in a dispute between it and an A.F. of L.
union, and while a motion for a new trial was pending, Bridges, who was
an officer of the iC.I.O., caused to be published or acquiesced in the publication
of a telegram which .he had sent -to the Secretary of Labor. The telegram
referred to the judge’s decision as “outrageous”, said that attempted enforce-
ment of it would tie up the -port of Los Angeles and dnvolve the entire Pacific
Coast, and concluded with the announcement that the C.I.O. union did not
“intend to allow state courts to override the National -Labor Relations Board.”
Both convictions were set aside by the Supreme ‘Court by the narrow vote
of five to four. 121
The gist of the majority opinion, which was delivered by Mr. Justice Black,
was to the effect that the California courts had subordinated the liberty of
the press to the independence of the judiciary. Although the Court recognized
that “free speech and fair trials are two of the most cherished policies of our
civilization” and that “it would be a trying task to choose between them”, 22
it held nevertheless that an abridgment on the freedom of the press was only
permitted by the Constitution when there was “a clear and present danger”
that the offending publication would actually interfere with a fair and impartial
trial. The majority opinion rejected the “reasonable tendency” test which had
119(1942), 86 L.Ed. 192.
120Ibid.
1’2 For the majority opinion were Justices Black, Reed, Douglas, Murphy and
Jackson; dissenting were Chief Justice Stone, and Justices Roberts, Byrnes and
Frankfurter.
122(1942), 86 L. Ed. 192, at p. 201.
No. 4]
CONTEMPT OF COURT
been applied by the lower courts, and still is the yardstick by which such
publications are measured in England and Canada. To satisfy the “clear and
present danger” test, the learned justice wrote,
… the substantive evil must be extremely serious and the degree of imminence
high before utterances can be punished.’2 3
He also rejected the contention that contempts of court belonged to a special
category which had been marked off by history and to which the criteria of
constitutional immunity from punishment used where other types of utterances
were concerned was not applicable. 124 His opinion considers the effect on liberty
of a general embargo on all types of comment during the pendency of a case.
It points out that
… public interest is much more likely to be kindled by a controversial event of
the day than by a generalization, however penetrating, of the historian or
scientist.’25
There was no suggestion in the
‘Constitution, he thought, that the freedom
there guaranteed for speech and the press “bears an inverse ratio to the
timeliness and importance of the ideas seeking expression.’ 26
The majority judgment then turned to consider in detail2 7 whether the
editorial and the telegram respectively satisfied the “clear and present danger”
test. The Court thought not. The anti-union views of the newspaper were
wellknown, said the Court, and its strictures if a lenient sentence were imposed
on the two convicted men only to be expected. So also with the telegram. “If
there was electricity in the atmosphere, it was generated by the facts; the
charge added by the Bridges telegram can be dismissed as negligible.”‘2
Mr. Justice Black concluded by adopting as his own 2′ the words of Mr.
Justice Holmes in the Toledo Newspaper Co. case:
I confess that I cannot find in all this or in the evidence in the case anything
that would have affected a mind of reasonable fortitude, and still less can I find
there anything that obstructed the administration of justice in any sense that
I possibly can give to those words.’ 3 0
To do justice to the powerful and eloquent dissent of Mr. Justice Frank-
furter would require more space than is available ‘here. In his opinion, the
majority judgment was in effect giving constitutional sanctity -to trial by
newspapers.’ 31 Whilst fully admitting that “the channels of inquiry and thought
must be kept open to new conquests of reason, however odious their expression
12 3 Ibid, at p. 203.
12 4Ibid, at pp. 203-5.
125Ibid. at p. 206.
‘ 26Ibid, at p. 206.
1 2 7Ibid. at p. 208 et seq.
128 Ibid. at p. 211.
129 Ibid, at p. 211.
130(1917), 62 L.Ed. 1187, 247 U.S. 407, at pp. 424-5.
13′(1942), 86 L.Ed. at p. 212.
McGILL LAW JOURNAL
[Vol. 6
may be to the prevailing climate of opinion”,132 he did not think that free
speech was “so absolute or irrational a conception as to imply paralysis of
the means for effective protection of all the freedoms secured by the Bill of
Rights.”‘1 33 The ‘Constitution also guaranteed the right to an impartial trial.
And since the courts were the ultimate resorts for vindicating the Bill of Rights,
a state might surely authorize appropriate historic means to assure that the
process for such vindication be not wrenched from its rational tracks “into the
more primitive rnlie of passion and pressure.” “The need is great”, the
learned justice wrote,13 4 “that courts be criticised but just as great that they
be allowed to do their duty.” He carefully distinguished, however, between
comments made in the course of a trial from those made after its conclusion.
He agreed with the majority opinion that no restriction must be suffered on
the latter type of comment.’3 5
The dissenting judgment then deals with the “clear and present danger”
test. 3 6 The phrase itself, Mr. Justice Frankfurter thought, was an expression
of tendency and not of accomplishment, and the literal difference between it
and “reasonable tendency” not of constitutional dimension. Even if it was true
that threats, by discussion, to untrammeled decisions by courts are the most
natural expressions when public feeling runs highest, it did not follow that states
were left powerless to prevent their courts from being subverted by outside
pressures when the need for impartiality and fair proceeding was greatest.
The learned justice concluded,’3
To say that the framers of the Constitution sanctified veiled violence through
coercive speech directed against those charged with adjudication is not merely to
make violence an ingredient of justice; it mocks the very ideal of justice by
respecting its form whilst stultifying its uncontaminated exercise.”
All this was but a prelude, albeit an essential prelude, to what in substance
was the most essential difference between the majority and minority views of
the members of the Court –
their respective interpretations of the likely
impact of the offending utterances on the mind of a judge. In the opinion of
the dissenting justices the editorial in the Los Angeles Times-Mirror was
hardly an exercise in futility. “If it is true of juries,” Mr. Justice Frankfurter
observed,138 “it is not wholly untrue of judges that they too may be ‘impregnated
by the environing atmosphere.'” As to the Bridges telegram, he felt that
‘3 2Ibid, at p. 213.
33Ibid. at p. 213.
‘3 41bid. at p. 215.
13 5Ibid. at p. 216: “Such foolishness has long since been disavowed in England, and
has never found lodgment here.” Both statements, with great respect, appear to be
inaccurate. For a recent conviction by a state court for a libel upon a court, see
Lancaster v. State (1946), 186 S.W.2d 673 (Ark.). Cf. Sullens v. State
(1941),
4 So.2d 356 (Miss.).
‘ 36Ibid. at p. 221 et seq.
137lbid. at p. 221-2.
13SIbid. at p. 223.
No. 4]
CONTEMPT OF COURT
a vague undetermined possibility that a decision of a court may lead to a
serious manifestation of protest was one thing. But the impact of a definite
threat of action to prevent a decision was a wholly different matter. 30 These
contrasting opinions on the psychology of judges were to clash again in the
second and third of the trilogy of cases that remain to be considered.
In the second case that came before the Supreme ‘Court, Pennekamp v. State
of Florida, 40 .the Court unanimously came to the conclusion that the newspaper
editorial for which the petitioner ‘had been convicted did not constitute such
a clear and present danger to the administration of justice as to constitute a
contempt of court. The offending articles in question consisted of an editorial
which intimated bias on the part of certain Florida courts towards those who
were charged with crime, with specific reference to cases where indictments
had been insufficient, and to the dismissal of “padlock” suits to close alleged
gambling places. There was also a cartoon which depicted the editorial senti-
ments in pictorial form. Although the Florida courts had held that the cases
were still pending at the time of the publication of the editorials, since
re-indictments had been prepared, in truth the question of pendency did not
loom large in their decisions. This appears ‘to be substantially the ground on
which Mr. Justice Frankfurter concurred in the decision to quash the convic-
tion, because, as he pointed out, “the petitiofers offended the trial court by
criticising what the court had already put into the scales, not by attempting
themselves to insert weights.” 14’
The opinion of the Court, however, delivered through Mr. Justice Reed, dealt
%vith the appeal on the supposition that the defendants had been punished for
seeking to influence the judge in his disposition of the pending cases. The
Court could not concede that there existed such a danger and Mr. Justice
Reed wrote:
Comment on pending cases, may affect
influence
some judges more than others. Some are of a more sensitive fiber than their
colleagues. The law deals in generalities and external standards and cannot depend
on the varying degrees of moral courage or stability in the face of criticism which
individual judges may possess any more than it generally can depend on the
personal equations or individual idiosyncracies of the tort-feasor. 142
judges differently. It may
The Court again sharply divided in the last of the three cases, which was
decided in 1947. In Craig v. Harney,143 while a motion for a new trial was
pending, the petitioner had published newspaper articles which unfairly reported
‘ 39Ibid, at p. 224-5.
140(1946), 328 U.S. 331, 90 L.Ed. 1295.
14’Ibid. at p. 1315.
142Ibid. at p. 1304. He adds the qualification, however, that “it does not follow that
public comment of every character upon pending
trials or legal proceedings may
be as free as a similar comment after complete disposal of the litigation . .
. . Courts
must have power to protect the interests of prisoners and litigants before them from
unseemly efforts to pervert judicial action”: ibid. at p. 1303.
143(1947), 331 U.S. 367, 91 L.Ed. 1546.
McGILL LAW JOURNAL
[Vol. 6
the facts of a civil trial in which the jury had at first refused to conform
to the judge’s direction of a verdict for -the plaintiff, and had stated that
certain organizations were planning to submit petitions calling on the judge
to grant a new trial. There was also an editorial which criticised in intemperate
language the judge’s conduct of -the trial, calling it “high-handed”, “a travesty
of justice”, and as giving the defendant, who was a veteran, “a raw deal”
which properly brought down “the wrath of public opinion” upon the judge’s
head, and deplored the fact that the judge was a layman and not a competent
attorney.
In quashing the conviction of the Texas court the majority opinion of the
Supreme Court adumbrates no new principals but merely re-iterates its view
of the judge as “a man of reasonable fortitude” whose mind could be expected
to maintain equilibrium under even the worst storms of adverse criticism.
The dissenting members of the Court,144 which again included Mr. Justice
Frankfurter, vigorously challenged this assumption as to the nature of the
judicial mind. Some extracts from their opinions -have already been cited
earlier. 45
These three judgments of the Supreme -Court have ,been frequently followed
or cited by state courts, 46 and one of their by-products appears to be that the
institution of “trial by newspaper” is more firmly entrenched in the United
States than ever before. Although none of the Supreme Court cases involved
sensational criminal trials –
indeed Mr. justice Reed expressly reserved his
opinion on the propriety of newspaper comment in such cases 47 –
they have
in practice been interpreted to sanction the most glaring type of prejudicial
comment even in this type of case. In Baltimore Radio Show v. State,
(1949),:148 for example, a negro had ‘been arrested on a charge or murdering
an eleven year old girl. While he was awaiting his trial a local radio station
broadcast a United Press report that the accused had confessed his guilt and
also revealed the fact that he had a previous criminal record. Nevertheless,
the highest court of Maryland held 49 that there was no such “clear and present
144The Chief Justice, Justices Jackson and Frankfurter.
145For discussion of these Supreme Court decisions, see M. Radin
(1942), 36 Ill.
Law Rev. 599; E. Hanson, (1942), 27 Cornell Law Quar. 165; W.N. Seymour (1948),
71 N.Y.S.B.A. Bull. 206; Note in (1950), 17 Univ. of Chicago Law Rev. 540; Thomas
Luscher, (1956), 40 Marq. Law Rev. 313.
146Baltinore Radio Show v. State (1949), 67 Atl. 2d 497 (Maryl) cert. denied
(1950), 94 L.Ed. 562; Turkington v. Municipal Court (1948), 193 P.2d 795 (Calif.);
Robinson v. City Court (1947), 185 P.2d 256 (Utah); Kirkham v. Sweetring (1945),
160 P.2d 435 (Utah); Bates v. State (1946), 197 S.W.2d 45 (Ark.); Graham v. Jones
(1942), 7 So.2d 688 (La.). See also Hoffman v. Perrucci, (1955), 222 F.2d 709.
147See ante, footn. 142.
148See ante, footn. 146.
149The court reasoned (67 Atl.2d 497, at pp. 508-9) that a jury was capable of the
same firmness and impartiality as a judge and that hence the Supreme Court decisions
were as applicable to trials by jury as to trials without them.
No. 4]
CONTEMPT OF COURT
danger” of the jury being prejudiced by such ex parte disclosures as to justify
a finding of contempt of court in the defendant radio station. 150
An even more terrible example of the evil of “trial by newspaper” is to be
found in Shepherd v. State of Florida, (1951). 151 Four negroes had been.
charged with the rape of a white girl, and were sentenced to death. Before
their trial various newspaper published as a fact that the accused had confessed
to the crime, although no confession was ever put into evidence at the trial.
A mob gathered before the jail in which the accused were kept and demanded
that they be turned over to it. Another mob burned the parents’ home of one
of the accused, and negroes were removed from the community ‘to prevent
their being lynched. Every detail of these events was reported by the press
under provoking headlines, and a cartoon was published while the grand jury
were considering
the charge picturing four electric chairs and headed
“No compromise –
Supreme penalty.” In a per curiam opinion the Supreme
Court of the United States reversed the state court conviction of the negroes
upon the sole ground that the method of selecting the grand jury discriminated
against the negro race. This, Mr. Justice Jackson pointed out in a separate
concurring opinion, stressed the trivial and ignored the important.152 And he
observed that the case presented “one of the best examples of one of the
worst menaces to American justice.”’15 3
What valid lessons can Canadian lawyers draw from American experience
in the regulation of constructive contempts of court? We would be reinforced,
I think, in our impression that “trial by newspaper” is a very great evil and
that the American courts, for one reason or another, have been very reluctant
to face the problem squarely. Their attitude towards comments on pending
cases not involving juries is also much more lenient than that of the English
and Canadian courts, and we would prefer, I think, to continue to follow
the “reasonable tendency” test, as espoused in the dissenting judgments of
Mr. Justice Frankfurter, in contrast to the “Clear and present danger” doctrine
favoured by the majority of the Supreme Court. Finally, we would be divided,
I imagine, on the question whether -Canadian courts should be freely exposed
to unbridled’criticism at the conclusion of a case, as the American courts
150In his opinion accompanying the Supreme Court’s denial of the petition for a
writ of certiorari, (1950), 94 L.Ed. at 563, Mr. Justice Frankfurter points out that
denial of a petition merely means that fewer than four judges, on any number of
possible grounds not necessarily touching the merits of the appeal, deemed it desirable
to review the lower court’s decision. But that he himself did not approve of it may
readily be gathered from the fact that he thought it sufficiently important to append
to his opinion a summary of the relevant English decisions dealing with prejudicial
comments published during criminal trials.
151341 U.S. 50, 95 L.Ed. 740.
15295 L.Ed. 740, at p. 744.
153Ibid. at p. 744. See also Strobie v. California, 343 U.S. 181, 96 L.Ed. 872;
U.S. v. Leviton (1951), 193 F.2d 848.
McGILL LAW JOURNAL
[Vol. 6
now are. But whatever our opinion on this constitutional question may be
we should welcome the salutary reminder brought us by the Supreme Court
decisions that in limiting criticism of the judiciary we are
imposing an
important restriction on freedom of speech. May it not fairly be said that we
have been too prone to accept this restriction as self-evident, which it is
not? There is need in Canada, it is felt, &or a more conscious evaluation of
the important and conflicting values competing for recognition in this branch
of the law.
II. – THE SUMMARY POWER OF PUNISHMENT
The summary power of the courts to inflict punishment for contempts of
court is today so much an accepted rule of law that the very phrase “contempt
of court” is generally used as being synonymous with its exercise. Yet it is
a fact that this power, in the case of constructive contempts of court, is ,of
comparatively recent origin, nor does it appear to be always appreciated that
even today criminal contempts constitute a misdemeanour at common law
which are punishable on indictment.1 5 4 The ‘Criminal Code, moreover, has
not only codified these common law offences, 1r5 but appears to have gone
1541n addition to the examples of indictments and informations for libels on the courts
collected ante, footn. 55 and 57, see also the following cases: R. v. Gurney (1867),
10 Cox C.C. 550
influence him in his decision);
R. v. Revel (1719), 1 Str. 420 (Calling a J.P. to his face “a liar and a rogue”);
R. v. (Lady) Lawley (1730), 2 Str. 904; R. v. Hall (1776), 2 W. BI. 1110; R. v.
Steventon (1802), 2 East 862; R. v. Loughran (1839), 1 Cr. & D. 79: all these were
cases of interfering with witnesses; R. v. Jolliffe (1791), 4 T.R. 285 (circulating
leaflets before trial attacking prosecutor); R. v. Fisher (1811), 2 Camp. 563 (ex p.
publication of preliminary proceedings before magistrate) ; R. v. Fleet (1818), 1 B. &
A. 379 (ex p. publication of evidence before coroner’s jury accompanied by prejudicial
(O.S.) K.B. 30 (putting on
comment); R. v. Williams & Romney (1823), 2 L.J.
theatrical exhibition before trial depicting alleged facts of murder); R. v. Tibbits
& Windhurst [1902] 1 K.B. 77 (prejudicial comment pending criminal trial); Oswald,
op. cit., pp. 6-7; Halsbury, 3rd ed., Vol. 8, p. 3.
55Old Code
(sending money
to a J.P. to
Section 180:
“Every one is guilty of an indictable offence and liable to 2 years imprisonment who
(a) dissuades or attempts to dissuade any person by threats, bribes or other corrupt
(b)
(c)
means from giving evidence in any cause or matter, civil or criminal; or
influences or attempts to influence by threats or bribes or other corrupt means,
any juryman in his conduct as such, whether such person has been sworn as a
juryman or not; or
accepts any bribe or other corrupt consideration to abstain from giving evidence,
or on account of his conduct as a juryman; or
{d) wilfully attempts in any other way to obstruct, pervert or defeat the course
of justice.”
Subs.
(d)
is apparently a catch-all. At any rate is has not been
ejusdem generis with the preceding subsections. See, R. v. Lake (1906),
interpreted
11 C.C.C. 37
No. 4]
CONTEMPT OF COURT
a step further by making civil contempts indictable as well where no other
machinery for dealing with such contempts exists. 15s
The early history of the summary method of procedure has been exhaustively
traced by Sir John Fox in a series of learned articles in the Law Quarterly
Review, 15 7 and his conclusions are summed up in the following passage:
law had
jurisdiction
the superior courts of common
perhaps in or after the Tudor period –
Originally
to punish
disobedience to the King’s writ summarily by fine and imprisonment upon attach-
ment, and probably also a disciplinary jurisdiction over their own officers exercisable
summarily. The Court of King’s Bench had jurisdiction on indictment or bill to
punish contempts in facie, obstructions to the service of process, other obstructions
to the administration of justice, as by libelling the Court or a judge or assaulting
a party on his way to the Court, and deceit or collusion in connection with pending
proceedings. In later times –
the common
law courts gradually established a summary jurisdiction over most of
those
contempts which had been formerly the subject of indictment or bill, but this
did not extend to libels on the Court or judges which were still punished by
indictment or by proceedings in the Star Chamber, and upon abolition of that
Court, by information or indictment in the King’s Bench. The Council, or the
Star Chamber as representing the Council, had always exercised a concurrent
jurisdiction to punish contempts of other Courts, and as the Star Chamber records
show, had exercised it largely. Upon the abolition of that Court a large portion
of its jurisdiction devolved upon the King’s Bench, and libels,
including libels
upon Courts or judges, were punished by information or indictment down to the
early part of the eighteenth century. In 1720 is to be found the earliest recorded
case of libel or slander on the Court or a judge by a stranger, unconnected with
the service of process, being punished by attachment. 15 8
Apart from the St. James Evening Post 59 case, which was a decision in
Chancery, The King v. Alnon 60 is generally regarded as the most conspicuous
(Alta.) ; R. v. Kadin, (1937), 68 C.C.C. 318 (B.C.) ; R. v. Gravelle, (1952), 103 C.C.C.
250 (Ont); R. v. Snider, (1953), 106 C.C.C. 175.
New Code
Section 119:
Subs. (d) of former s. 180 has been elevated into a separate subs. (1); new subs.
(d) & (e) deal with payments to and receipts by bondsmen; “in any cause or matter,
civil or criminal” in former subs. (1) has been replaced in new subs. (2) by “in a
judicial proceeding.”
Section 165:
15 6 01d Code
“Every one is guilty of an indictable offence and liable to one year’s imprisonment
who, without lawful excuse, disobeys any lawful order, other than for the payment of
money, made by any court of justice .
. unless some penalty is imposed, or other
mode of proceeding is expressly provided, by law.” For an example of “other mode
of proceeding .
. . expressly provided by law,” see R. v. Clement, (1940), 90 C.C.C.
284 (Que.).
.
Section 108:
New Code
Only one material alteration; maximum punishment has now been increased to 2 years’
imprisonment.
‘5 7 See ante, footn. 56, and see also by the same writer, “The Writ of Attachment”,
40 Law Quar. Rev. 43.
15824 Law Quar. Rev. at pp. 276-7.
‘5 9Ante, footn. 5.
1C097 E.R. 94.
McGILL LAW JOURNAL
[Vol. 6
landmark in the history of the transition from procedure by indictment or
information to the summary method of attachment and committal in the case
of utterances out of court constituting a contempt. In Almon’s case an order
nisi was served on the printer Almon calling upon him to show cause why
he should not ‘be attached for publishing a pamphlet in which he accused Lord
Mansfield of having acted “officiously, arbitrarily, and illegally” in allowing
an amendment to an information that ‘had been laid against Wilkes. One of
the objections taken by Almon’s counsel was that his client should have been
proceeded against by way of an information or indictment and not by attachment.
Mr. Justice Wilmot, as he then was, in a prepared judgment that was in
fact never delivered, rejected this contention asserting that, “the issuing of
attachments by the Supreme Courts of Justice in Westminster Hall, for
contempts out of Court, stands upon the same immemorial usage as supports
1’61 He cited no authority, however,
the whole fabrick of the common law …
to substantiate his claim, and Sir John Fox’s researches have proved him to
be wrong. Nevertheless, The King v. Almon has been approved and followed
in an almost unbroken line of English and Canadian cases, 162 and it is much
too late in the day to challenge its authority. Moreover, the -Criminal Code
itself has now impliedly sanctioned the use of the summary power by providing
an appeal from conviction and/or sentence in the case of all contempts of
court not committed in the face of the court.’6
The assumptions underlying Mr. Justice Wilmot’s judgment have, however,
been challenged on many occasions, 0 4 and during the nineteenth century many
efforts were made, none of which succeeded, to bring forward in the British
Parliament bills defining the extent of the summary power and limiting the
maximum punishment imposable for contempts of court. 0 5 The American
federal and state legislation concerning this subject and its judicial interpretation
have already been noted. The Anglo-Canadian courts, while insisting that they
16197 E.R. 94 at p. 99.
162For a list of the cases, see 24 Law Quar. Rev. 184. The only unfavourable criticism
of the decision is made by Fletcher J. in Taafe v. Downes, an Irish decision of 1813
reported in a note in 3 Moore P.C. at pp. 48, 72.
‘6Section 9.
1 4Stansbury, op. cit. 92, 316; passint, Nelles & King, op. cit.; H. Laski,
(1928),
41 Harv. Law Rev. 1031; Fox, “Eccentricities of the Law of Contempt of Court”,
(1920), 36 Law Quar. Rev. 394.
265See Hansard, 3rd series, Vol. 277, col. 1611, 1615
(1883); Hansard, 4th series,
Vol. 155, col. 814 (1906); Vol. 185, col. 1424 (1908); Vol. 155, col. 579. Bills for the
amendment of the law of contempt of court were brought forward
in 1883, 1892,
1894, 1896, and 1908. For further details, see 36 Law Quar. Rev. 394 at p. 395. A very
limited bill, introduced by Lord Shawcross, and which does not interfere with the
summary method of procedure, is at the present time before the House of Lords:
see, “A Bill intituled An Act to amend the law relating to contempt of court,” (1960),
8 Eliz. 2.
No. 4]
CONTEMPT OF COURT
have never abused their summary powers, 166 have themselves recognized the
potentialities for its abuse, and many dicta will be found laying it down that
this extra-ordinary power is only to be used where the contempt is clear and
beyond doubt.167
Nevertheless, when the smoke and the dust raised by these perennial con-
troversies has cleared, and the issues involved viewed in a more dispassionate
light, it will be found that many of the assumptions made by partisans on
both sides are ill-founded, and that the picture is not quite as simple as either
side would have us believe.
One may dispose, first, of those situations which even the sternest critics
concede justify the summary intervention of the courts –
I mean those con-
tempts committed within the actual view of the court. It is obvious that the
judges must -have power to deal immediately with disturbances in the court-
room, to suppress unseemly behaviour, and to curb insulting and abusive
language. Should the summary power be limited, however, to ordering the
removal of the offender? It is certainly true that an aroused judge may inflict
punishment of excessive severity, and it would, no doubt, -be desirable to impose
a moratorium between the moment of the offence and the time of its punishment
to allow passions to cool. It may -be suggested, however, that substantially the
same objective can be gained by limiting the amount of punishment that may be
imposed and by providing facilities for appeal. The Criminal -Code now makes
provision for an appeal from sentence only for contempts committed in the face
of the court,168 and this goes a long way to meeting most of the objections
to the exercise of the summary power in such cases. Section 9(1) of the Code,
it is true, does not directly impose a maximum punishment, but the knowledge
that an excessive sentence may be reduced on appeal should operate at least as
a psychological restraint on a judge who might otherwise be inclined to allow
his outraged feelings to get the better of him.
This brings us to the most controversial aspect of the summary power
its use in the case of contempts not committed in the presence of the court.
Mr. Justice Wilmot attempted to justify it on two grounds. First, because the
arraignment of the justice of the judges excites in the minds of the people a
general dissatisfaction with all judicial determination, and indisposes their
minds to obey them. This, he thought, was the most fatal and dangerous
obstruction to justice, and therefore called out for “a more rapid and immediate
166E.g., Ex p. Fernandez (1861), 10 C.B. (N.S.) 3, 142 E.R. 349, per Erle C.J. at
p. 363, and Byles J. at p. 370.
167Queen v. Payne [1896] 1 Q.B. 577, per Lord Russell, CJ. at p. 580; Hunt v.
Clarke (1889), 58 L.J. (Q.B.) 490, per Cotton L.J. at p. 493 and Fry LJ. at p. 494;
In re Clement, 46 LJ. (Ch.) 375, per Jessel M.R. at p. 383.
ss. (1): “where a court, judge, justice, or magistrate summarily
convicts a person for contempt of court committed in
the face of the court and
imposes punishment in respect thereof, that person may appeal against the punishment
imposed.” For the history of section 9, see (1955), 33 Can. Bar Rev. 27-29.
168 Section (9)
McGILL LAW JOURNAL
[Vol. 6
.”169 His second ground
redress than any other obstruction whatsoever .
was based on the supposed antiquity of the power.170 The first ground is the
one that has been most generally adopted by judges in later cases. In
Skipworth’s case’ 71 Blackburn J. said,
.
… if we are to wait for that punishment to be done by ordinary criminal process
and an ordinary trial, there might be great mischief done, because that process is
slow, and before that process could come into train the mischief would be done
by the due administration of justice being hampered and thwarted. 17 2
How much truth is there in these assertions in the light of present day
conditions? At the outset it may be observed that it is not alvays the case
that summary proceedings are speedier than a trial by jury. In Ellis v. The
Qiwen,173 for example, a rule nisi against the defendant was issued in Easter
Term 1887, and was made absolute in Hilary Term 1888. The writ of attach-
ment then issued and the defendant was arrested and brought into court,
whereupon he was released on bail. Interrogatories were administered to him
and finally, on August 13th, 1889, more than two years after the original
proceedings had been initiated, the court found him guilty of contempt of
court.’ 74 That no doubt was an extreme case, but delays of substantial lengths
appear to be not uncommon. But even if it were true that the courts in all
cases always act with the greatest promptitude it is a strange doctrine which
preaches that a traitor, a murderer, and one who incites the violent overthrow
of a government is entitled to the time-honoured right of trial by jury, but
that public policy demands that a printer or a distributor who may not even
have read the document for whose publication he is held responsible shall be
deprived of the protection of a trial by his peers. It has not been suggested,
for example, that in those parts of the United States where the courts have
been successfully deprived of their summary powers the administration of
justice has been impaired proportionately.
‘Granting, however, that reasonable despatch in punishing those guilty of
interfering with the due processes of the law is desirable, especially in the
case of sensational criminal trials, in order to deter others from following in
their footsteps, it is no longer true that procedure by indictment or information
is so much slower a process than the summary method. The grand jury has
now been abolished in England and most of the Canadian provinces, and
as in large cities the assizes are almost in continuous session there is no
reason why a contempt of court indictment could not be brought before a jury
within a matter of a few weeks. There are, after all, numerous English
16 9 The King v. Almon (1765), 97 E.R. 94 at p. 100.
17OIbid., at p. 101.
171(1873), L.R. 9 Q.B. 230.
172Ibid., at p. 233.
173(1894), 22 S.C.R. 7.
174Ibid., at pp. 8-9.
No. 4]
CONTEMPT OF COURT
precedents in which contempts were tried before a jury, without any visible
damage to the fabric of the law. 75
The argument against the use of the summary power rests on the objection
that, in cases of contempts constituting a libel on the court, the judge is both
the prosecutor, judge and jury, that it deprives a man of his ancient common
law right to a trial by his peers, and attention is drawn to the fierce struggle
in England during the second half of the eighteenth century to let juries
decide the general verdict on a charge of seditious libel. Many of these objec-
tions, it is submitted, are no longer valid today.
In the first place, the objections only touch a limited number of constructive
contempts of court (albeit of an important character) ; they do not affect the
use of the summary power to punish other forms of constructive contempts
and especially publications prejudically commenting on pending proceedings.
Secondly, the practice of the judge affected by the offending publication himself
hearing the application to commit, which appears to be fairly widespread in
the United States’76 and has unhappily even caught a foothold in Canada 17
on occasion, has no current sanction in England. The practice there, on the
King’s Bench side of the High Court, is for most types of contempt to be
tried before a divisional court composed of at least two judges.’ 78 In the third
place, experience does not prove that a jury always protects the rights of an
individual better than does a judge: “seditious prosecutions went on with
shameful severity in England after Fox’s Libel Act had given the jury power
to determine criminality.”‘179 Both Ivens and Boucher, to take two Canadian
examples, did not noticeably fare better with a jury than they would have done
at the hands of a single judge. “The essential question is not”, as Professor
Chafee has pointed in connection with trials for seditious libels,’80 “who is
judge of the criminality of an utterance, but what is the test of its criminality.”
This observation, it is submitted, applies with equal force to trials by indictment
for contempt of court.
But there are also two further reasons for questioning the need for a jury
in contempt proceedings. The first of these is that, in England and Canada,
the trend in this century has been to restrict trial by jury to the most serious
criminal cases, and few contempts qualify being placed in this category.
Sentences of imprisonment for contempts of court appear to be reserved for
‘ 75See ante, footn. 154.
17GThe practice was mildly criticised by the U.S. Supreme Court in Cooke v. U.S.
to persist: see Turkington v.
(1924), 267 U.S. 517, 69 L.Ed. 767, but continues
Municipal Court (1948), 193 P.2d 795 (Calif.).
(B.C.).
177As, for example, in R. v. Vanwouver Province (1954), 12 W.W.R. (N.S.) 349
‘7 sSee Halsbury’s Laws of England, 3rd ed., Vol. 8, p. 34.
170Chafee, Free Speech in the United States (1946), p. 22; cf. Dicey, The Law of
the Constitution, 7th ed., p. 240.
18oChafee, op. cit., p. 23.
McGILL LAW JOURNAL
[Vol. 6
the most serious cases, and even when imposed rarely exceed period of from
three to six months. The second, and more important, reason is that questions of
fact are seldom in issue in contempt cases. The question usually is, not whether
so-and-so published this paper or wrote that article, but whether the publication
tends to interfere with a fair and impartial trial. That is an issue on which
even experienced judges may disagree, especially in civil cases; it must be an
infinitely more difficult question for a body of laymen to answer.
To sum up then. The power to punish libels on the courts not connected with
pending proceedings should be seriously reviewed and preferably abolished
altogether, except perhaps in a very limited number of cases. In any event the
defendant should at least have the right to elect a trial -by jury, and under
no circumstances (except perhaps where the defendant consents) ought the
judge against whom the libel is directed be permitted to preside over the
contempt hearing. 8s’ As for the other types of constructive contempts of a
criminal character no powerful reason exists for displacing the summary
jurisdiction of the courts. The English practice, on the King’s Bench side,
of trying such cases before a divisional court appears to work very well and
might perhaps be copied with advantage elsewhere.
III – THE DISTINCTION BETWEEN CIVIL AND
CRIMINAL ,CONTEMPTS OF COURT
The problem of how .to distinguish between civil and criminal contempts of
court raises difficult problems which the courts have not yet succeeded in solving
satisfactorily., Yet the distinction is not unimportant, for at least seven, and
possibly eight, consequences flow from it. They are as follows: (1) the Parlia-
ment of Canada and the Provinces have perhaps a concurrent jurisdiction to
legislate on matters involving the law of criminal contempt,18 2 but in the case of
a conflict between the federal and the provincial legislation it is a fair assumption
that the federal legislation would prevail by virtue of section 91(27) of the
British North America Act; (2) it is true in England still today,1s3 and was
true in Canada until the new Criminal Code was introduced, that there is no
appeal from summary conviction for a criminal contempt; and even though,
in Canada, the Code does now allow an appeal 8 4 the distinction is still
‘ 19In Boucher v. The King [1951] S.C.R. 265 at p. 343, Cartwright J. expresses the
opinion that libels on the courts should “preferably” be tried before a jury.
182 See The Copeland-Chatterson Co. v. Business Systems Co. (1908), 16 O.L.R. 481
(C.A.), per Meredith J. A. at p. 489.
183The Criminal Appeal Act of 1907 (7 Edw. VII, c. 23) only provided for appeals
from conviction on indictment or information
(ss. 3, 20), but the Bill now before
the House of Lords (see ante, footn. 165) would give a right of appeal from conviction
for a criminal contempt of court. (section 1).
18 4Section 9, subs. (1) : see ante, footn. 168;
subs. (2): “where a court or a judge summarily convicts a person for
a contempt of court not committed in the face of the court
No. 4]
CONTEMPT OF COURT
(5)
(6)
(7)
(3)
there
important because different rules of appeal continue to apply for civil and
criminal contempts of court;
is no privilege from arrest for
solicitors and members of Parliament in cases of criminal contempt;’85 (4)
the sheriff may break open an outer door in executing the process of arrest in
a criminal contempt, and perhaps may execute it on a Sunday;186
the
order from discharge from custody in criminal contempts may be made condi-
tional on the payment of costs;187
in criminal contempts the court has
power to impose either a fine or a term of imprisonment: in civil contempts,
it would seem, the court’s jurisdiction is -limited to imposing a sentence of
imprisonment, definite or indefinite;18
the prerogative of the Crown
extends to remission of sentence from criminal contempts, but -the Crown,
semble, never interferes in the case of a civil contempt;189 (8) it appears to be
an open question whether the power of the court to move ex mero motu to
attach a person for the commission of a criminal contempt extends equally
to that of a civil character. In the British ‘Columbia case of Canadian
Transport (U.K.) Ltd. v. Alsbury,9 0 O’Halloran J. A. who dissented did not
expressly deal with the point but thought a judge must be cautious in initating
contempt proceedings and carrying them on himself, (since in so doing he
becomes “Attorney-General, prosecutor, jury and Judge”).”‘ Mr. Justice
Bird 9 2 apparently shared the view of Mr. Justice Sydney Smith 93 that t
extended equally to both types of contempts, at least where the maintenance
of the court’s dignity and prestige was concerned. ‘In the Supreme Court of
Canada (where the case is reported sub. nor. Tony Poje v. A. G. of British
Columbia),194 Kellock J., who delivered the judgment of himself, the Chief
justice and Mr. Justice Rand, held the contempt was of a criminal character
and stated that it was “immaterial” by what means the appellants were in
court.195 Mr. Justice Kerwin, in a separate concurring judgment, said that
he could find no merit in any of the objections raised to the procedure adopted
by the trial court, 96 and Estey J. confined himself to stating that the trial
and punishment is imposed in respect thereof, that person
may appeal (a)
from the conviction; or (b) against the
punishment imposed.”
1851n re Freston (1883), 11 Q.B.D. 545; Wellesley v. Duke of Beaufort (1831), 2
Russ. & My. 639.
l86Halsbury, op. cit., 3rd ed., Vol. 8, p. 4.
187Ibid.
188Fox, 36 Law Quar. Rev. 394 at p. 399.
1891n re Bahamas Islands [1893] A.C. 138 (P.C.)
190[1953] 1 D.L.R. 385.
191Ibid., at pp. 393-4.
192Ibid., at pp. 419-20.
193Ibid., at p. 409.
194[1953] 1 S.C.R. 515.
195Ibid., at p. 527.
a9GIbid., at p. 528.
McGILL LAW JOURNAL
[Vol. 6
court had had jurisdiction to hear the motion,107a and he found it unnecessary to
determine the nature and character of the contempt with which the defendants
were charged.’0 7
What, then, is
the distinction
,between civil and criminal contempts of
court? Halsbury states a widely accepted distinction when it defines a
“criminal contempt” as consisting of words or acts obstructing, or tending
to obstruct, the administration of justice, as distinguished from a “civil
in procedure”), which
contempt”
consists of disobedience to the judgments, orders, or other process of the court,
and involves a private injury.198 Does it follow, then, that breach of an order
ol the court can never constitute a criminal contempt?
(designated by Halsbury as “contempt
The Anglo-Canadian courts have advanced four different answers to this
question at one time or another. First, it has been said that, for the purposes
of appeal, only those contempts are of a criminal character which arise out
of a criminal cause or matter.1 99 This distinction appears to turn upon a
particular construction of section 47 of the English judicature Act, 1873, and
has been criticised on the ground that contempt proceedings ‘have no necessary
connection, other than a chronological one, with the ’cause or matter’ in the
course of which they may occur.2 00 The second view is one that has enjoyed
a great deal of judicial popularity and has at least the merit of clarity and
simplicity. It appears to hold that no breach of an order or judgment in a civil
proceeding can ever constitute a criminal contempt.20 ‘ The fallacies inherent
in this point of view were vigorously exposed in the judgment of Mr. Justice
Sydney Smith in the Alsbury case. He said,
19aBut it is submitted that, in principle, the power of the court to move cxa mero
vzotu should be confined to criminal contempts. To hold that a contempt is civil and
yet to confer the power upon the court is a contradiction in terms. If a court takes
action to vindicate its authority –
as dictinct from exerting its power in aid of
then the contempt in question ought to be classified as criminal. To hold
execution –
i.e., one of a
otherwise would be in effect to create two types of court contempts,
procedural character and the other of a punitive character but used only when
disobedience to the order of a court is involved and presumably governed by most
of the rules applicable to criminal contempts. Such a dichotomy, with respect, is as
unnecessary as it is bound to confuse an already sufficiently confused situation.
197Ibid., at p. 528.
19 83rd. ed., Vol. 8, p. 3, but see the subsequent qualification, ibid., at pp. 20-1, para. 38.
199R. v. Barnado (1889), 23 Q.B.D. 305, per Cotton L.J. at p. 308; cf. O’Shea v.
O’Shea (1890), 15 P.D. 59; Scott v. Scott [1913] A.C. 417, per Earl Loreburn at
[1953] 1 D.L.R. 385, per
pp. 443-4; Canad. Transport (U.K.) Ltd. v. Alsbury
O’Halloran J.A. at p. 389.
2 0 0Fox, 30 Law Quar. Rev. 56 at pp. 58-9.
201A. G. v. Kissane (1893), 32 L.R.Ir. 220 (C.A.); Scott v. Scott [1913] A.C. 417,
per Lord Atkinson at p. 462; Alsbury’s case
O’Halloran J.A. at p. 389 and Bird J.A. at p. 417.
(supra) [1953] 1 D.L.R. 385, per”
No. 4]
CONTEMPT OF COURT
In reading textwriters’
ideas on what should be classed as criminal contempts
and what civil or procedural contempts, it seems to me they show a curious want
of proportion. To say, firstly, that it is a criminal contempt to libel a party to
a pending action, to insult a witness or juror, or a solicitor out of Court, or
to advertise for witnesses; but that secondly, breach of an injunction cannot amount
to anything but a civil wrong, does not carry conviction. The former offences are
treated as criminal because it is said that they “interfere with the administration
of justice.” The inference is that breach of an injunction cannot interfere with the
administration of justice. But does it not? The Courts are solicitous to ensure
that the parties get a fair trial; that can only be with a view to getting them the
judgment they are entitled to. But can the Courts say: ‘Our only concern is to
see you get your judgment; we are indifferent as to whether you can enforce it.’
If disobeying an interim injunction is not interfering with justice, disobeying a
final injunction must be equally pardonable. I cannot see how it is rational to
treat one interference with justice differently from the other. In fact it would seem
to me far more serious to flout express prohibitions of the Court than merely
to infringe general principles covering litigation.202
The anomalous consequences that flow from the rigid distinction referred
to by the learned judge may be seen in the following example. A person who
is named in an injunction order commits a breach of the order with the aid
and assistance of a stranger, neither his servant nor agent, who is not named
in the order. The principal apparently would be guilty only of a civil contempt,
whereas the stranger might be proceeded against as for a criminal contempt.20 -3
The courts are also not consistent in their application of this test, because
it appears to be the practice to regard disobedience to a court order committed
in the face of the court as criminal in character. Thus a witness who fails
to appear in court in response to a subpoena commits only a civil contempt,204
but if he does appear and then refuses to be sworn or to answer questions he
is guilty of a criminal contempt.20 5 The explanation given for this distinction
is that his contumacious conduct in the presence of the court constitutes an
interference with the administration of justice, but that if committed out of its
view it falls into the category of a contempt in procedure.
The third view is more rational than the second, but is also more difficult
to apply in practice. This view recognizes the potentially dual character of
contempt proceedings for disobedience to a court order, but stops short of
saying that every wilful disobedience constitutes a criminal contempt as well
202[1953] 1 D.L.R. 385 at p. 403.
203This distinction appears to have been drawn by Lindley M.R.
in Seaward v.
Paterson [1897] 1 Ch. 545 at p. 555, as interpreted by Lord Atkinson, and the latter
thought that it was “almost inconceivable that the law should tolerate such an anomaly
as this”: [1913] A.C. 417 at pp. 456-7. See also Pole’s case [1953] S.C.R. 516, per
Xellock J. at pp. 519-20.
205Halsbury, op. cit., p. 5, para. 6 (sub. nom. “Criminal contempt”); 2 Hawk. P.C.,
8th ed., c. 22, s. 35; Blackstone, Commentaries, Vol. IV, 284; Hennegal v. Evance
(1806), 12 Ves. 201; Ex p. Fernandez (1861), 10 C.B. (N.S.) 3.
204Halsbury, op. cit., 3rd ed., Vol. 8, p. 28, para. 51
in
procedure”) ; Blackstone, Commentaries, Vol. IV, 284; Scholes v. Hilton (1842),
10 M. & W. 15; R. v. Daye [1908] 2 K.B. 33.
“Contempt
(sub. tir.
McGILL LAW JOURNAL
[Vol. 6
as a civil contempt.20
“The line, then, which I draw is this;” says ‘Lord
Brougham, L.C. in an old case,20 7 “that against all civil process privilege
protects; but that as against contempts for not obeying civil process, if that
contempt is in its nature or ‘by its incidents criminal, privilege protects not.”
But, it -may well be asked, when does disobedience to a court order partake
of a “criminal” character? Apart from a number of special cases involving
attorneys and wards of the court there is very little precedent of a general
character -to guide us. The Supreme Court of Canada in Poje’s case held that
the “public” nature of the defiance of the order of the court transferred the
conduct in question from the realm of a mere civil contempt, such as an ordinary
breach of an injunction with respect to private rights in a patent or -trade-mark,
into the realm of a public depreciation of the authority of the court tending
to bring the administration of justice into scorn.203
If read literally this test
would lead to the conclusion that a clandestine disobedience, however wilful,
could never amount to a criminal contempt.
The most satisfactory answer to the problem, it seems to this writer, is that
tendered by Mr. Justice Sydney Smith. Every wilful disobedience to an order
of the court is a challenge to its authority and is therefore infected with a
criminal as well as a civil character. This proposal gains support from section
108 of the Criminal Code which makes at an indictable offence wilfully to
disobey the lawful order of any court of justice in Canada. It is true that this
section only applies where no other mode of proceeding is expressly provided
by law, and rules of court do generally provide other means of enforcement,
.but the section is at least indicative of a rational approach to a troublesome
problem. This does not of course mean that it is either possible or desirable
to abolish the distinction between civil and criminal contempts itself, but
it does mean that in every case of wilful disobedience proceedings for criminal
contempt-
preferably designated as such in the motion for attachment or
committal –
can be taken, if thought desirable, without protracted litigation
over the question whether the contumacious conduct in fact exhibited the
requisite element of “criminality.”
20OHalsbury, op. cit., pp. 20-1, para. 38; McWilliams’ case, 1 Sch. & Lef. 169,
per Lord Redesdale at p. 174; Wellesley v. Duke of Beaufort (1831), 2 Russ. & My.
638, per Lord Brougham at p. 665; In re Freston (1883), 11 Q.B.D. 545, per Brett
M. R. at pp. 552-3 and Fry L.J. at p. 557; O’Shea v,. O’Shea (1890) 15 P.D. 59, per
Lindley LJ. at p. 64; Copeland-Chatterson Co. v. Business Systems Co. (1908), 16
O.L.R. 481, per Meredith J.A. at pp. 489-90; Alsbury’s case (ante), footn. 199, per
Smith J.A. at p. 403 et seq; Poje’s case [1953] 1 S.C.R. per Kellock J. at p. 517
et seq. See also, U.S. v. U.M. of A. 91 L. Ed. 884, and Moskowitz
in (1943), 43
Col. Law Rev. 780.
20 Wellesley v. Duke of Beaufort (1831), 2 Russ. & My. 638, at p. 655.
208[19531 S.C.R. 516 at p. 527.