Winnipeg Free Press - PRINT EDITION

Vagary of contempt law manifestly unjust

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Alex Chapman's courtroom outbursts when compelled to appear in Court of Queen's Bench last week to answer questions about his failure to pay previously ordered legal costs to Jack King, husband of Queen's Bench Lori Douglas (the subject of an ongoing Canadian Judicial Council inquiry as to her fitness to remain on the bench), met the response they deserved.

Chapman was hauled into court as a result of his breach of a confidentiality agreement by which he was to remain silent about King's soliciting him to have sex with Douglas. King had obtained a prior court order requiring Chapman pay him $7,500 in legal costs, as well as repay the $25,000 King had paid Chapman for his silence back in 2003.

Chapman alleged everything from being tricked into the hearing to abuse of judicial authority. His conduct danced perilously close to contempt of court.

Chapman initially refused to either pay the legal costs previously ordered by the court or answer questions under oath put to him by King's counsel and the presiding judge, Justice Donald Bryk, who told Chapman he had two options: take the stand and testify about his ability to pay, or come up with the money. He rightly advised Chapman his failure to do either would see him found in contempt of court and arrested. Faced with the judge's resolve, Chapman somehow came up with the cash that very afternoon.

But the whole sorry episode is a reminder that enactment of a clear set of rules governing contempt of court is past due.

Contempt of court is an anomalous judicial power. Courts normally draw their authority from provincial or federal legislation that creates them, or alternatively from the Criminal Code of Canada. Their only other source of power is a catch-all common law concept called "inherent jurisdiction," a hoary and vague vein of judicial authority Canada inherited from British law.

Inherent jurisdiction is often invoked as a kind of judicial last resort. It sometimes boils down to a court wanting to do something it believes appropriate to its functioning, but not being able to point to specific legislative authority empowering it to do that something. Ordering someone removed from the courtroom, or disallowing the presence of recording devices are the most common examples.

However, the gravest inherent-jurisdiction power the courts have is to punish individuals for contempt of court.

But contempt of court is also the sole exception to a cardinal principle of Canadian law: No one can be convicted of a crime unless it's embodied in a statute or the Criminal Code.

More problematic still, there are no prescribed minimum or maximum penalties for contempt. If people are liable to be jailed for contempt, the law should be clear as to what range of imprisonment is in play. No one should face incarceration without knowing the penalty, or at very least, the range of penalty, he or she faces. The law's current vagary is manifestly unjust.

Manitoba's Court of Queen's Bench Act is typical of this failure. It references contempt of court without ever defining it. It cites a couple of examples of what's not contempt of court (failure to perform personal services for an employer, disclosure of what happens at a closed hearing, absent the court's express prohibition of disclosure). But it never ventures to clarify just what constitutes contempt or appropriate sanctions.

Contempt of court is an area of law that's been bruited about for years as ripe for reform by academics, judges and law reform commissions. But it's never been accorded the priority it deserves by Parliament.

Not surprisingly, therefore, Canadian courts have generally trod carefully when it comes to their right to make a finding of contempt of court, and trod more carefully still when it comes to their right to jail for contempt. Fines are far and away the usual punishment for a finding of contempt, sometimes coupled with an order to foot the bill for the costs of a contempt hearing.

Not every instance of potential contempt of court is as clear cut as that which Alex Chapman brought upon himself by his courtroom diatribes and refusal to heed the authority of the court.

Ultimately, both the individual's rights and the court's remedies flowing from a finding of contempt would be better served by clarifying the law. It's time to overhaul our current too vague, and far too discretionary, judicial authority to determine just what is contempt of court and how it should be punished.

Douglas Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition August 11, 2012 A14

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