Stated case for contempt for failure to attend hearing, etc.

(Public Inquiries Act, R.S.O. 1990, CHAPTER P.41, Consolidation Period: From August 20, 2007 to the e-Laws currency date. Last amendment: 2006, c. 35, Sched. C, s. 113.)

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8.Where any person without lawful excuse,

(a) on being duly summoned under section 7 as a witness at an inquiry, makes default in attending at the inquiry; or

(b) being in attendance as a witness at an inquiry, refuses to take an oath or to make an affirmation legally required by the commission to be taken or made, or to produce any document or thing in his or her power or control legally required by the commission to be produced to it, or to answer any question to which the commission may legally require an answer; or

(c) does any other thing that would, if the commission had been a court of law having power to commit for contempt, have been contempt of that court,the commission may state a case to the Divisional Court setting out the facts and that court may, on the application of the commission or of the Attorney General, inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defense, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. P.41, s. 8.

Protection of witnesses

9.(1)A witness at an inquiry shall be deemed to have objected to answer any question asked him or her upon the ground that his or her answer may tend to criminate the witness or may tend to establish his or her liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him or her in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence. R.S.O. 1990, c. P.41, s. 9 (1).

Right to object

(2)A witness shall be informed by the commission of his or her right to object to answer any question under section 5 of the Canada Evidence Act. R.S.O. 1990, c. P.41, s. 9 (2). 

Justice Cunningham

excerpts from 07 September 2001 ruling on Dick Nadeau contempt charge

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[23]   In B.C.G.E.U. v. British Columbia (A.G.), [1988] 2 S.C.R. 214, the Supreme Court of Canada had occasion to deal with the issue of contempt of court. At page 12 Chief Justice Dickson commented with approval upon statements of former Chief Justice McRuer of the High Court of Ontario in an article published in 1952 in the Canadian Bar Review where Justice McRuer said:

A contempt may be either a criminal contempt or a civil contempt. The difference between contempts criminal and contempts civil seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in nature, but a contempt in disregarding the orders of a judge of a civil court is not criminal in nature. It is the obstruction or interference with the fair administration of justice within which the law of criminal contempt is concerned, and it has nothing to do with the personal feelings of the judges; it is not a power to be used for vindication of the judge as a person and no judge should allow his personal feelings to have any weight in the matter.

[24]   Chief Justice Dickson continues at page 13:

In some instances the phrase ^"contempt of court" may be thought to be unfortunate because, as in the present case, it does not posit any particular aversion, abhorrence or disdain of the judicial system. In a legal context the phrase is much broader than the common meaning of "contempt" might suggest and embraces "where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court's authority", "interfering with the business of the court on the part of the person who has no right to do so", "obstructing or attempting to obstruct the officers of the Court on their way to their duties^" — See Jowitt's Dictionary of English Law, vol. 1, ^2nd ed., at p. 441.

An intent to bring a court or judge into contempt is not an essential element of the offence of contempt of court. That was decided in R. v. Hill (1976), 73 D.L.R. (3d) 621 (B.C.C.A.). McIntyre J.A., speaking for a unanimous court said at p. 629:

Even, however, if the cases could not be distinguished on their facts, it is my opinion that an intent to bring a Court or Judge into contempt is not an essential ingredient of this office. In Canada the proposition stated in R. v. Gray, [1900] 2 Q.B. 36 at p. 40, by Lord Russell of Killowen has been accepted. He said:

Any act done of writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.

These words have received the approval of the Supreme Court of Canada in Poje et al v. A-G. B.C. (1953), 105 C.C.C. 311 and in Re Duncan (1957), 11 D.L.R. (2d) 616. In my view, they express the law as it now stands in this country.

The word "calculated  as used here is not synonymous with the word "intended". The meaning it bears in this context is found in the Shorter Oxford English dictionary as fitted, suited, apt.....

[28]   As to the mens rea of the crime of criminal intent, the law was neatly summed up by Hill J. in R. v. Peel Regional Police Service where at page 17 he stated:

The mens rea of the crime of criminal contempt, the intention or mental state of the alleged contemner, may be wilfull or knowing behaviour or reckless disregard or indifference that the conduct at hand would tend to undermine the authority of the court: United Nurses of Alberta v. Attorney-General of Alberta (1992) 71 C.C.C. (3d) 225... As stated by McLachlin J. at 253 of the United Nurses of Alberta decision:

Therefore, when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. 

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