Present: Dickson
C.J. and Estey*, McIntyre, Lamer, Wilson, La Forest and
L'Heureux‑Dubé JJ.
on appeal from the court of appeal for newfoundland
Courts
‑‑ Criminal contempt ‑‑ Court‑house being
picketed during legal strike ‑‑ Member of striking union crossing
picket line to work at court‑house ‑‑ Union commencing
internal disciplinary action ‑‑ Whether or not picketing of court‑house
during lawful strike constituting criminal contempt ‑‑ Whether or
not union had lawful right to proceed with internal disciplinary action.
Respondent
Chafe, a member of appellant Association, crossed a picket line set up by the
Association on his way to work at the court‑house. The picket line had
been established in front of the court‑house during the course of a legal
strike in 1978. When the Association was about to commence disciplinary action,
the respondents sought (i) a declaratory order that any place where a court
sits is not a place where a picket line may be set up or maintained and (ii) a
mandatory injunction restraining the Association from proceeding further with
its disciplinary action. The injunction was granted ex parte and the
order was made permanent after a hearing. The Newfoundland Court of Appeal
unanimously rejected the Association's appeal. This appeal raised two issues.
The first was whether picketing a court‑house in the course of a lawful
strike constituted criminal contempt of court. The second was whether the Union
had the lawful right to proceed with its charge and with its proposed
discipline hearings against Mr. Chafe.
Held: The appeal should
be dismissed.
The
picketing here constituted a criminal contempt of court. Notwithstanding the
fact that the strike was legal, the fact that the picket line was intended by
the Association as a barrier to the court‑house brought this case
squarely within B.C.G.E.U. v. British Columbia (Attorney General).
Since
the picket line itself constituted a criminal contempt, the appellant
association had no right in law to discipline one of its members for ignoring
its unlawful plea not to cross the picket line. The Association may have every
right to enforce solidarity and respect for lawful picket lines but it cannot
exercise such disciplinary authority to enforce respect for a picket line which
is itself unlawful.
Cases Cited
Applied: B.C.G.E.U. v.
British Columbia (Attorney General), [1988] 2 S.C.R. 214.
Statutes and
Regulations Cited
Public Service (Collective Bargaining Act), 1973, S.N. 1973, No.
123.
Authors Cited
Newfoundland Association of Public Employees. Constitution
of the Newfoundland Association of Public Employees. Article III, s.
8(a)(xiii).
APPEAL
from a judgment of the Newfoundland Court of Appeal (1984), 50 Nfld. &
P.E.I.R. 139, 149 A.P.R. 139, 14 D.L.R. (4th) 323, dismissing an appeal from a
judgment of Noel J. Appeal dismissed.
V.
Randell J. Earle, for the appellant.
Leslie
R. Thoms, for the respondent the Attorney General of Newfoundland.
William
H. Goodridge, for the respondent William Chafe.
The
judgment of the Court was delivered by
1. The Chief Justice‑‑This
appeal raises an issue as to the right of a labour union to place a picket line
in front of a court‑house and to discipline someone, who is a member of
the court staff and member of the striking union, for crossing the picket line.
I
Facts
2. In
the course of a legal strike of the general service workers of the Newfoundland
Association of Public Employees, Local 7104 beginning on September 18, 1978,
the services of all Newfoundland government employees in the bargaining unit,
except certain supervisory personnel and others required for essential
services, were withdrawn. Included in the bargaining unit was the staff of the
Supreme Court of Newfoundland. The court employees had not been designated as
"essential" pursuant to The Public Service (Collective Bargaining
Act), 1973, S.N. 1973, No. 123. The services of the members of the
Association working at the Supreme Court were withdrawn with the exception of
certain supervisory personnel. The striking employees picketed the court‑house
in St. John's as part of their strike action.
3. William
Chafe, a member of the Association and a bailiff employed at the court, crossed
the picket line on the day it was set up, in order to perform his employment
duties within the court. The constitution of the Association of Public
Employees provides in paragraph 8(a)(xiii) of Article III that every member of
a bargaining unit who refuses to respect a picket line during a legal strike is
guilty of an offence for which he or she may be convicted and reprimanded,
fined, removed from office, suspended or expelled. A charge under this
provision in the constitution was brought against Mr. Chafe for having crossed
the picket line and he was informed that his "trial" would be held
before a committee of the Association on December 12, 1978.
4. On
the day the disciplinary hearing was to commence, the Attorney General of
Newfoundland and Chafe issued an originating summons seeking a declaratory
order "that the Court House, Duckworth Street, St. John's or any other
place where a Court sits is not a place at which a picket line may be
established, set up, or maintained in that it is an interference with the
administration of justice". The plaintiffs also sought a mandatory injunction
restraining the defendant association from proceeding further against Mr. Chafe
for the alleged disciplinary offence. Noel J. granted the injunction ex
parte and, following a hearing held on January 10, 1979, Noel J. made the
injunction order permanent. He held that the Association should be enjoined
from proceeding with its disciplinary proceedings against Chafe. The
Association appealed to the Newfoundland Court of Appeal and that Court
unanimously dismissed the appeal. Leave to appeal to this court was
subsequently granted.
II
Judgments
Noel J. (unreported)
5. In
brief oral reasons, Noel J. held that inducements to an officer of the court to
depart from his duty constituted a criminal contempt of court and that the
court had ample powers to ensure that its officers were protected in the
performance of their duties. Noel J. indicated that such powers were not for
the purpose of vindicating the dignity of the court or of the person of the
officer, but rather to prevent undue interference with the administration of
justice.
Newfoundland Court of
Appeal
(reported at (1984), 14 D.L.R. (4th) 323)
6. The
Association appealed to the Newfoundland Court of Appeal on the ground inter
alia that the Attorney General was not a proper party to the action, that
the judge had erred in restraining the appellant Association from carrying out
its internal disciplinary procedure and that the judge had erred in finding the
respondent Chafe was an officer of the court. Chafe cross‑appealed on the
ground that the trial judge erred in failing expressly to find that the
appellant did not have the right to discipline him internally under the union
constitution for failure to respect the picket line.
7. All
three judges of the Court of Appeal agreed that the appeal should be dismissed.
Morgan J.A. stated that implicit in Noel J.'s order was the proposition that
the establishment of a picket line at the entrance to a court‑house
constituted a criminal contempt, designed to induce officers of the court to
refrain from carrying out their duties. While the appellant contended that the
strike was lawful, Morgan J.A. held that the real issue was whether the
appellant's conduct in establishing a picket line at the court‑house
constituted a criminal contempt; if so, none of the arguments of the appellant
could prevail. Morgan J.A. referred to the well‑settled principle that
acts tending to obstruct or interfere with the administration of the justice
constitute a criminal contempt; he referred as well to the inherent
jurisdiction of the superior courts to punish for such contempt. Morgan J.A.
said at p. 329:
The question also arises as to whether the
establishment of a picket line at the entrance to a court‑house obstructs
or tends to obstruct the open administration of justice as submitted by the
Attorney‑General. That question was considered in Re British Columbia
Government Employees Union et al. and A.‑G. B.C. et al. (1983), 2
D.L.R. (4th) 705, [1984] 1 W.W.R. 399, 48 B.C.L.R. 5.
Morgan J.A. referred
at length to the reasons of McEachern C.J.S.C. in the British Columbia
Government Employees' Union case and stated that the principles enunciated
by McEachern C.J.S.C. could be applied in the present case. He concluded at p.
330:
Any conduct which is calculated to prevent or
hinder, in their access to the court, any litigant or witness or any person
whomsoever having business in the court or desirous of entering for the purpose
of hearing what is going on, constitutes a contempt of court. In my view the
placing of a picket line at the entrance to the court‑house falls within
that category.
In Balogh v. Crown Court at St. Albans,
[1974] 3 All E.R. 283 (C.A.), Lord Denning M.R., as illustrative of the power
of a judge to punish summarily of his own motion for contempt in certain
prescribed circumstances, stated at pp. 287‑8:
This power has been inherited by the judges of the High Court and in
turn by the judges of the Crown Court. To show the extent of it, I will give
some instances:
...
(ii) Within the court room but not seen by the judge‑‑At
the Old Bailey a man distributed leaflets in the public gallery inciting people
to picket the place. A member of the public reported it to a police officer,
who reported it to the judge. The offender denied it. Melford Stevenson J
immediately heard the evidence on both sides. He convicted the offender and
sentenced him to seven days' imprisonment. The man appealed to this court. His
appeal was dismissed (Lecointe v. Courts' Administrator of the Central
Criminal Court)" (February 8, 1973; Bar Library Transcript No. 57A of
1973).
Morgan J.A. held that
the Attorney General of Newfoundland was a proper party to launch the
proceeding, that Chafe was an officer of the court, and accordingly, he
dismissed the appeal.
8. Mahoney
J.A. agreed, placing extensive reliance upon the reasons of McEachern C.J.S.C.
in the British Columbia Government Employees' Union case. Mahoney J.A.
held that the matter could not be characterized as a purely internal matter
between the union and its member, as no union could contract with its members
to do any act which interfered with the administration of justice. He said at
p. 337:
Prohibiting access to the court‑house to William Chafe interfered
with the service of court process and the enforcement of court orders and
interfered with the administration of justice generally. The establishment of
the picket line at the court‑house in this case constituted a criminal
contempt of court.
Mahoney J.A. held that
the cross‑appeal of Chafe was unnecessary as the trial judge had in
effect given him the relief he sought.
9. Mifflin
C.J.N. agreed with Morgan J.A. In the view of the Chief Justice, the
establishment of a picket line at the entrance to a court‑house was an
interference with the open administration of justice, and, thus, is in itself a
contempt of court. The Chief Justice added at p. 325:
It cannot be said that the failure of William Chafe to respect the
picket line, be he an officer of the court or simply a member of the appellant
association, could leave him open to jeopardy of disciplinary action by the
association. I cannot conceive of a situation where one could be disciplined
for refusing to countenance an illegal act. A fortiori, an officer of
the court cannot be subjected to disciplinary action for refusing to respect an
illegal picket line regardless of any disciplinary procedures in the
constitution of the association.
The Chief Justice
concluded by saying that the Attorney General was without question a proper
party to the proceedings in that the responsibility for the administration of
justice reposed in him.
III
The Issue
10. The
issue presented by this case is not whether there was a right to strike, nor is
the issue whether Mr. Chafe was under a legal duty to ignore the strike action
and the picket line and report for work. There is no need to canvas either
question. This appeal raises two issues. The first is whether picketing a court‑house
in the course of a lawful strike constitutes criminal contempt of court. The
second is whether the Union has the lawful right to proceed with its charge and
with its proposed discipline hearings against Mr. Chafe.
11. The
precise wording of the charge against Chafe is that he did "commit an
offence against the constitution of the Newfoundland Association of Public
Employees in that he did refuse to respect a picket line of local 7104 of the
Nfld Association of Public Employees during a legal Association strike at the
Court House, Duckworth St, St. John's, Nfld". The respondents contend that
the Association lacks lawful authority to proceed with such a charge because
the picketing itself was illegal.
12. The
first issue in the case at bar is the same as that presented in B.C.G.E.U.
v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, namely, does
picketing which impedes access to the courts of justice constitute a criminal
contempt of court. There is no question in the present case but that the strike
was a lawful one. However, for the reasons given in the B.C.G.E.U. case,
the legality of the strike does not render legal picketing which would
interfere with the administration of justice. It is clear from the facts of the
present case that the picket line was intended by the Association as a barrier
to the court‑house. Mr. Chafe was faced with serious disciplinary charges
for his insistence upon crossing the line and entering the court‑house.
This brings it squarely within the holding in the B.C.G.E.U. case and it
follows that the picketing constituted a criminal contempt of court.
13. If
the picket line itself constituted a criminal contempt, the appellant
association can have no right in law to discipline one of its members for
ignoring its unlawful plea. As was pointed out in the reasons in the B.C.G.E.U.
case, the Association and its constitution are subject to the law of the land.
While the Association may have every right to enforce solidarity and respect
for lawful picket lines, it cannot exercise such disciplinary authority to
enforce respect for a picket line which is itself unlawful.
14. It
should be emphasized that this judgment does not in any way order any
individual or group of individuals back to work nor does it hold that the
strike itself was unlawful, nor does it hold that Mr. Chafe was obliged to
ignore the picket line and report for duty despite the strike. Mr. Chafe made
his own decision to ignore the strike and to report for work. The simple point
to be decided by the Court is whether he can be subjected to disciplinary
proceedings by reason of his action, in light of the fact that the picket line
itself constituted a criminal contempt of court. In my view the answer to that
question must be in the negative. In the absence of illegality, the appellant
union had a right to discipline Mr. Chafe in accordance with its constitution.
In the absence of illegality the appellant's argument would be unanswerable. In
the circumstances of this case, however, the picketing of the court‑house
was illegal, a criminal contempt of court, and the appellant, in my view, could
properly be enjoined from disciplining a member for that member's decision to
cross an illegal picket line.
15. Counsel
for the appellant stressed that in their ex parte application for
injunctive relief and at the later contested court hearing, the Attorney
General for the Province of Newfoundland and William Chafe did not enter any
evidence establishing that the picketing of the court‑house had
interfered with persons entering or leaving the court‑house or that the
picketing had interrupted or affected any of the court proceedings. It was said
that there was no evidence of intimidation, coercion, or violence to establish
actual or probable interference with the administration of justice. In the B.C.G.E.U.
case the picketing was peaceful; there was no violence or threats of violence.
The argument presented in the case at bar was presented in that case, and
rejected at pp. 16‑17:
The very purpose and intent of the picket line in a labour dispute is
to discourage and dissuade individuals from entering the premises which are
being picketed....
A picket line ipso facto impedes public
access to justice. It interferes with such access and is intended to do so. A
picket line has great powers of influence as a form of coercion. As Stewart J.
said in Heather Hill Appliances Ltd. v. McCormack, [1966] 1 O.R. 12
(Ont. H.C.) at p. 13:
The picket line has become the sign and symbol of trade union solidarity
and gradually became a barrier‑‑intangible but none the less real.
It has now become a matter of faith and morals and an obligation of conscience
not to breach the picket line and this commandment is obeyed not only by fellow
employees of the picketers but by all true believers who belong to other trade
unions which may have no quarrel at all with the employer who is picketed.
16. Counsel
for the appellant states that the case law dealing with the criminal contempt
power of the court describes it as an inherent power of a superior court to
maintain its authority and prevent its process from being obstructed and
abused. That is a correct statement of the case law, as the authorities which
counsel cites, make clear. Counsel then adds: "The Courts are not by this
power to have a perfect existance [sic] free from the viscisitudes [sic]
of everyday life". This statement pays scant heed to the point made
repeatedly in the case law, that the power to punish for criminal contempt is
not intended to insulate the courts from life's vicissitudes; it is not
intended to place the courts in Elyseum, a blessed abode free from the slings
and arrows which afflict all others; it is not intended to vindicate the
dignity of the courts or the judges. The point is that courts of record have
from time immemorial had the power to punish for contempt those whose conduct
is such as to interfere with or obstruct the due course of justice; the courts
have this power in order that they may effectively defend and protect the
rights and freedoms of all citizens in the only forums in which those
rights and freedoms can be adjudicated, the courts of civil and criminal law.
Any action taken to prevent, impede or obstruct access to the courts runs
counter to the rule of law and constitutes a criminal contempt. The rule of
law, enshrined in our Constitution, can only be maintained if persons have
unimpeded, uninhibited access to the courts of this country.
IV
Conclusion
17. I
would dismiss the appeal with costs.
Appeal
dismissed.
Solicitors
for the appellant: Wells, O'Dea, Halley, St. John's.
Solicitor
for the respondent the Attorney General of Newfoundland: The Department of
Justice, St. John's.
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