Over the past few years, Freemen-on-the-land or “OPCA” (organized pseudolegal commercial argument) litigants have had an increasing presence in the courtroom, performing contemptible acts such as denying the authority of the court, disobeying court orders, disrupting court proceedings and in one instance, attempting to arrest the sitting judge. This post provides a concise explanation of what may merit a finding of contempt of court.
Contempt of Court
I-III.4: Identifying Contempt of Court
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I: Nature of Offence
See Canadian Abridgment: JDG.XX.1 Judges and courts | Contempt of court | Nature of offence
"Contempt" in the legal acceptance of the term primarily signifies disrespect to that which is entitled to legal regard. In its origin, legal contempt was found to consist of an offence more or less directed against the sovereign as the head of law and justice, or against the palace as the place where justice was administered.1
"Contempt" is an offence for which it is difficult to set out an exact definition. Generally speaking, contempt of court may be said to be any conduct calculated to bring the authority and administration of the law into disrespect, or any act calculated to interfere with the due course of justice or process of the court.2 It has also been described as a disobedience to the court,3 or an act or omission calculated to interfere with the due administration of justice.4
Contempt is not a personal matter in that it is not the judge or participant in the court process who must be protected, but rather the function he or she fulfils.5
The law of contempt provides the necessary disciplinary power to punish quickly for insults to the court or any other action that could interfere with the administration of justice.6 Because protection of the courts' functions is such a broad mandate, the definition of contempt is necessarily imprecise. Contempt may be found in a failure to appear,7 a contemptuous gesture,8 the refusal to be sworn or answer questions,9 interference with proceedings or a witness,10 breach of a court order11 or the publication or broadcasting of statements.12
II.1: Classifications of Contempts — Civil Contempt
See Canadian Abridgment: JDG.XX.2 Judges and courts | Contempt of court | Civil and criminal contempt defined
Contempt can be classified as either civil or criminal. Broadly defined, a civil contempt is disobedience of the judgments, orders or other processes of the court, and involves private injury.1
A proceeding for civil contempt of court is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favour the order was made.2 As a result, sanctions for civil contempts are mostly coercive in nature.3
In contrast to civil contempt, the object of proceedings for criminal contempt is not the enforcement of writs, rules or orders, but the punishment of contumacious behaviour.4 Causing a private injury may amount to a criminal contempt, however, where the wrong is deliberately repeated with an intention to defy the court's authority.5
II.2: Classifications of Contempts—Criminal Contempt
See Canadian Abridgment: JDG.XX.2 Judges and courts | Contempt of court | Civil and criminal contempt defined
Contempt of court is a common-law offence which is preserved by the Criminal Code but is not defined therein.1 Resort must be had to the common law, which broadly defines criminal contempt as words or acts obstructing or intending to obstruct the administration of justice.2 Criminal contempt proceedings, though not codified, are consistent with the Charter.3
Criminal contempt can be distinguished from civil contempt as involving a public injury or offence. Some civil contempts, however, may become criminal in nature where the private contempt escalates beyond the realm of the purely civil; for example, a continuing wilful refusal to obey a court order which tends to publicly depreciate the authority of the court and the administration of justice.4
Where a matter is commenced by way of civil contempt and, due to an escalation of disobedience, leads to intervention by the Attorney General and allegations of criminal contempt, it is still open to the court to make a finding of civil contempt where the court is not satisfied beyond a reasonable doubt that the contempt is criminal in nature.5
Where the public defiance of a civil order brings the administration of justice into scorn, the offence is a criminal contempt. Such defiance includes any person who publicly disobeys a court order or assists others to do so, or anyone, bound by the order or not, who publicly attempts to interfere with the due course of justice.6
As the power to punish for criminal contempt of court is to protect the processes of the court, sanctions for criminal contempts are mostly punitive in nature.7
II.3: Classifications of Contempts — Contempt in Face of Court
See Canadian Abridgment: JDG.XX.4.a Judges and courts | Contempt of court | Forms of contempt | Contempt in face of court
Contempt can either be in the face of the court (in facie, or "direct contempt") or not in the face of the court (ex facie, or "constructive contempt"). A contempt in the face of the court is one that occurs in the court or in the cognizance of the court,1 and has been described as including any word spoken or act done in the court or in the precincts of the court which obstructs or interferes with the due administration of justice or is calculated to do so.2
The geographic boundary of what is considered to be in the face of the court is not settled, but case law seems to support a tightening of the applicable boundaries.3
The clearest examples of contempt in the face of the court include assaults committed in court,4 insults to the court5 or its officers,6 interruption of court proceedings,7 refusal of a witness to be sworn or to answer questions,8 and the intoxication of a juror9 or an accused.10
A courtroom occurrence in the absence of the judge,11 the assault of a defendant in a court lobby,12 a threat in a courthouse elevator,13 and picketing outside a courthouse in disobedience of an injunction, where it was observed by an officer of the court,14 have all been considered contempt in facie. A contemptuous letter written to a judge in chambers, however, was not considered contempt in facie.15
II.4: Classifications of Contempts — Contempt Not in Face of Court
See Canadian Abridgment: JDG.XX.4.b Judges and courts | Contempt of court | Forms of contempt | Constructive contempt
Contempt ex facie, or "constructive" contempt, is a contempt resulting from words spoken or published, acts done, or some other conduct outside the court intended or likely to interfere with or obstruct the fair administration of justice.1
III.1: Particular Contempts — Scandalizing the Court
See Canadian Abridgment: JDG.XX.4.b.i Judges and courts | Contempt of court | Forms of contempt | Constructive contempt | Scandalizing court
Derisive comments about the judiciary in its judicial capacity and false accusations relating to the integrity or impartiality of a judge or the judiciary is a contempt of court.1 Similarly, attacks upon the integrity of officers of the court will constitute contempt.2 The offence requires proof that the misconduct caused a serious, real and imminent risk of obstruction of justice accompanied by a dishonest intention or bad faith.3 Without the presence of these elements, the offence of contempt by scandalizing the court will infringe the freedom of expression protected by the Charter,4 and is not a reasonable limit prescribed by law and demonstrably justifiable in a free and democratic society.5
III.4: Particular Contempts — Witnesses
See Canadian Abridgment: JDG.XX.4.c.vii Judges and courts | Contempt of court | Forms of contempt | Disobedience of court | By witnesses
Witnesses to a proceeding may commit contempt of court in a number of ways. A finding of contempt may result when a witness fails to attend court or remain in attendance where required by law to give evidence,1refuses to be sworn or to answer questions properly put or give evidence after being sworn, without just excuse2 or commits perjury or provides evasive testimony.3
A restrained approach to the use of contempt is particularly apt where a journalist who, subpoenaed to testify at a civil trial, refuses to answer questions that would reveal a confidential source. Even after it has been determined that the rights of the litigants trump a journalist's claim of confidentiality, it is a mistake to cite the journalist for contempt immediately. The court should first explore other means of proceeding that would be less intrusive to the journalist-informant relationship of confidentiality. If a proceeding reaches the point where the court must use the contempt power, its deployment should always be tempered with a proper regard for the important values at stake.4
Contempt has also been found to exist where a witness failed to leave court after being required to do so5and where the accused appeared in court drunk.6
Prosecutions for contempt of court also serve to protect witnesses in a proceeding. Any act, whether by words or conduct, which interferes with or has the propensity to interfere with a witness or potential witness will amount to contempt of court.7 This includes such acts as assaulting a witness; influencing a potential witness to not attend court and give evidence, or to alter his or her testimony;8 bribing or attempting to bribe a witness;9 or threatening or otherwise mistreating a witness after testimony has been given.10
These principles also extend to acts which might have the effect of discouraging future witnesses from coming forward to take part in proceedings,11 and include the publication of comment calculated to discourage litigants generally from availing themselves of the courts to settle disputes.12
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