United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 SCR 901

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901

 

United Nurses of Alberta                                                                  Appellant

 

v.

 

The Attorney General for Alberta                                                    Respondent

 

and

 

The Attorney General of Canada,

the Attorney General of Quebec and

the Attorney General of British Columbia                                       Interveners

 

Indexed as:  United Nurses of Alberta v. Alberta (Attorney General)

 

File No.:  21870.

 

1991:  December 3; 1992:  April 16.

 

Present:  Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for alberta

 

                   Criminal law ‑‑ Criminal contempt of court ‑‑ Directives of provincial tribunal filed in superior court as orders of that court ‑‑ Union breached these orders and held in criminal contempt ‑‑ Whether union had the status to be found in criminal contempt ‑‑ Whether the offence of criminal contempt violated Charter ‑‑ Whether a directive of a provincial board filed in superior court gave rise to criminal contempt ‑‑ Labour Relations Act, R.S.A. 1980, c. L‑1.1, ss. 142(7) ‑‑ Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 , 11 (a), (g) ‑‑ Constitution Act, 1867, s. 96  ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1) (b)(iii).

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Criminal law ‑‑ Criminal contempt of court ‑‑ Directives of provincial tribunal filed in superior court as orders of that court ‑‑ Union breached these orders and held in criminal contempt ‑‑ Whether union had the status to be found in criminal contempt ‑‑ Whether the offence of criminal contempt violated Charter  ‑‑ Whether a directive of a provincial board filed in superior court gave rise to criminal contempt.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Protections availing accused on criminal law trial ‑‑ Cross‑examination ‑‑ Right to cross‑examine on certain affidavits refused because accused unable to establish relevancy of cross‑examination in advance ‑‑ Whether the proceedings violated the Charter  because the union was not permitted to cross‑examine on the affidavits.

 

                   The United Nurses of Alberta went on strike in January, 1988, contrary to directives forbidding the strike made under the Alberta Labour Relations Act and filed with the Court of Queen's Bench.  The union was found to be in criminal contempt of the orders and fined $250,000 and $150,000 on successive motions.  At trial, the trial judge refused the right to cross‑examine on certain affidavits, on the ground that the accused could not establish in advance that the cross‑examination would be relevant.  The Alberta Court of Appeal dismissed its appeal and the union appealed to this Court.  The issues were:  (1) whether the union had the status to be found in criminal contempt; (2) whether the offence of criminal contempt violated the Canadian Charter of Rights and Freedoms ; (3) whether a directive of a provincial board filed in the Court could give rise to criminal contempt; and (4) whether the proceedings violated the Charter  because the union was not permitted to cross‑examine on the affidavits filed by the Crown.

 

                   Held (Lamer C.J. and Sopinka and Cory JJ. dissenting):  The appeal should be dismissed.

 

                   Per La Forest, Gonthier, McLachlin and Iacobucci JJ.:  The union may be held liable for a criminal offence (including criminal contempt) at common law.  Further, unions are societies for the purposes of the Criminal Code .  The provincial legislation defining societies clearly implies that there may be societies that are not incorporated under the Societies Act.  Since a union, as a society, may be prosecuted under the Criminal Code , it should also be subject to prosecution for a criminal offence at common law.  Unions therefore have the status to be found in criminal contempt.

 

                   Denial of liberty resulting from criminal contempt is effected in accordance with the principles of fundamental justice.  The absence of codification does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed, pre‑determined law.  Nor is the crime of criminal contempt so difficult to distinguish from civil contempt that it violates these principles.  The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt.  To establish criminal contempt the Crown must prove beyond a reasonable doubt that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea).  When 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.  On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public.  While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt.  An accused can predict in advance whether his or her conduct will constitute a crime.  Criminal contempt does not therefore violate ss. 7 , 11 (a) or (g).

 

                   The inability of the judge to inquire into the validity of the order on the contempt proceeding does not deprive him or her of a responsibility which should rest with a s. 96  court.  The judge must determine whether the Crown has established beyond a reasonable doubt that the accused has breached the directive in a way that amounts to public defiance of the authority of the court and if so, must determine the sentence.  A judge entertaining a motion for contempt of an order made by a judge of the court, as opposed to an inferior tribunal, would not have the power to go behind the order for its validity is not an issue on the contempt hearing.  Section 142(7) cannot insulate an inferior tribunal's decision from scrutiny as an affected party can always challenge the directive of the board on jurisdictional grounds.

 

                   Section 142(7) does not enable the province to enact criminal law, which is a matter reserved to Parliament.  Rather, the provision engages the criminal law, just as it may engage the civil contempt power, but it creates neither.  Jurisprudence dealing with similar provisions in labour legislation in Canada has established that, where such Board orders are filed with the court, they have the same force and effect as orders of the court and disobedience can be punished by contempt and other similar proceedings.

 

                   The word "enforceable" is not restricted to the civil contempt power and can embrace the criminal contempt power.  Words are to be given their plain ordinary meaning in a statute.  No dictionary need to be called in aid to demonstrate that the words "enforceable as such" mean that an order of the Labour Relations Board is to be enforced by the court as if it were an order of the court.  A directive of the Board can therefore give rise to criminal contempt.

 

                   The contempt proceeding is a criminal proceeding, and the full protections availing an accused on a criminal trial are available.  This includes the right of cross‑examination.  However, the right of cross‑examination is not unlimited.  All cross‑examination is subject to the discretion of the judge to refuse irrelevant cross‑examination.

 

                   Even assuming that the trial judge, in limiting irrelevant questioning, did not have the discretion to exclude the cross‑examination altogether on the basis that the accused did not prove beforehand that the intended questions were relevant, no substantial wrong or miscarriage of justice occurred. Section 686(1)(b)(iii) of the Code accordingly applies.  The verdict would have been the same even if full cross‑examination on these matters had been allowed.

 

                   Per Lamer C.J. and Cory J. (dissenting):  Unions are subject to prosecution for the common law offence of criminal contempt.  They fall within the scope of the term "societies" in the Criminal Code 's definition of person and are liable for prosecution for a common law crime.

 

                   Both civil and criminal contempt may apply and attach to the same activity.  Contempts tending to bring the administration of justice into scorn or to interfere with the due course of justice are criminal in their nature; contempt in disregarding orders or judgments of a civil court or in not doing something ordered to be done in a cause is not criminal in its nature.  The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury.  In the context of a labour dispute that would be conduct which threatens the rule of law.  The mens rea is that the perpetrator wilfully or knowingly caused this harm or, alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act.

 

                   More than public conduct is necessary to transform a defiance of a court order into criminal contempt.  To accept public conduct as the standard would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order.  Moreover, making it the sole determining factor would expand the scope of criminal contempt powers far beyond the limits necessary to achieve their end.

 

                   The criminal contempt power should be used sparingly, with great restraint and only when required to protect the rule of law.  A court's response must be proportionate to the harm caused.  If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice.

 

                   The unrestrained use of criminal contempt proceedings in labour relations matters may again give rise to the perception that the courts are interfering with the collective bargaining process and intervening on behalf of management.  If that perception persists, the courts will no longer be seen as impartial arbiters but as the instruments used by society for imposing crushing penalties on unions and union members.

 

                   The offence must not be so broadly defined that it threatens other values important to Canadian society.  Charter  rights, particularly freedom of expression, must be considered.  Further, frequent use of criminal contempt could effectively restrict the union's ability to set out its position to the media, especially if publicity is chosen as the element which transforms civil into criminal contempt.

 

                   Alternative methods were available for enforcing compliance with the Board's order.  The legislators designed a comprehensive and balanced scheme, which included a graduated system of fines, to deal with any infringement of orders.  The use of criminal contempt proceedings and the imposition of crushing penalties were inappropriate except in circumstances of violence or threats of serious violence.

 

                   The conduct of the union leadership was not sufficient to transform the civil contempt into criminal contempt.  The element of public injury was missing from the breach of the order.  The nurses neither flaunted their disobedience of the order nor presented any threat of violence.  The diffidence of their spokesperson in discussing the matter with press indicated that the union did not intend to bring the administration of justice into a disrepute or hold it up to scorn.

 

                   A criminal contempt hearing is held as a summary proceeding and the evidence against the defendant may be adduced in affidavit form.  This procedure does not, of itself, violate the s. 7  Charter  rights of the accused to a fair trial if the court conducts the hearing in accordance with the principles of fundamental justice.  Fundamental justice includes the right to cross‑examination on the affidavit evidence adduced in the hearing.

 

                   The accused's right to cross‑examine on the affidavit evidence need not extend to irrelevant matters.  Relevance, however, should generally not be determined in advance.  The right to cross‑examination should exist without preconditions.  The defence should have been permitted to call and cross‑examine those witnesses who had submitted sworn affidavits.  It would be wrong in principle to apply the curative provisions of s. 686(1)(b)(iii) of the Code.

 

                   Per Sopinka J. (dissenting):  Section 142(7) of the Alberta Labour Relations Act does not convert the directives of the Board into an order of a court of superior jurisdiction so as to attract the power of such a court to punish for criminal contempt.

 

                   The criminal law of contempt must be distinguished from civil contempt.  Criminal contempt is to punish conduct calculated to bring the administration of justice by the courts into disrepute; civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court.

 

                   Before jurisdiction to punish for criminal contempt can be found, there must be an act of the court taken in the course of the administration of justice.  The alleged contemnor cannot bring the administration of justice by the courts into disrepute if the order which has been disobeyed is not in fact an order of the court but that of an inferior tribunal.

 

                   Provincial legislation cannot provide that an order, which remains a directive of the Board, be the subject of criminal contempt proceedings.  In as much as no such offence exists at common law a contrary interpretation would enable the province to enact criminal law which is a matter reserved to Parliament.  The language of the section is capable of a meaning that conforms to the province's powers.

 

                   The words "enforceable" and "judgment" are the critical words in s. 147.  "Enforcement" can have at least two meanings:  a penalty for the purpose of punishment or a process for securing compliance.  When used in the latter sense a fine or other penalty may still be employed to induce obedience and not for the purpose of punishment.  The use of "enforcement" in s. 147 was intended in the latter sense to enable measures to be taken to secure compliance rather than in the criminal law sense emphasizing punishment.

 

 

Cases Cited

 

By McLachlin J.

 

                   Considered:  Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270; Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360;  referred to:  International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; International Longshoremen's Association v. Maritime Employers' Association, [1979] 1 S.C.R. 120; Young v. C.N.R., [1931] 1 D.L.R. 645; R. v. United Fishermen & Allied Workers Union, [1968] 2 C.C.C. 257, leave to appeal denied [1968] S.C.R. 255; British Columbia Telephone Co. v. Telecommunications Workers Union (1981), 121 D.L.R. (3d) 326; New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers (1977), 16 N.B.R. (2d) 161; B.C.G.E.U. v. British Columbia (Attorney-General), [1988] 2 S.C.R. 214; R. v. Jobidon, [1991] 2 S.C.R. 714; Frey v. Fedoruk, [1950] S.C.R. 517; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; R. v. Parke, [1903] 2 K.B. 432; R. v. Davies, [1906] 1 K.B. 32; Labour Relations Board of Saskatchewan v. John East Ironworks, Ltd., [1949] A.C. 134; Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112.

 

By Cory J. (dissenting)

 

                   Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; Scott v. Scott, [1913] A.C. 419; R. v. Kopyto (1987), 61 C.R. (3d) 209; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 32 C.C.C. (3d) 417; R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Garofoli, [1990] 2 S.C.R. 1421.

 

By Sopinka J. (dissenting)

 

                   B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214;  R. v. Hill (1976), 73 D.L.R. (3d) 621; Poje v. Attorney General for British Columbia, [1953] S.C.R. 516; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270; Attorney General v. British Broadcasting Corp., [1980] 3 All E.R. 161; Parklane Private Hospital Ltd. v. B.C. Government Employees Union (1988), 88 C.L.L.C. para. 14,017; Toronto R. Co. v. City of Toronto (1920), 51 D.L.R. 69; Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360; Edmonton General Hospital v. United Nurses of Alberta, Local 79 (1990), 104 A.R. 394; Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff'd [1967] 1 O.R. 609; R. v. Green, [1992] 1 S.C.R. 614.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 , 11 (a), (g).

 

Constitution Act, 1867, s. 96 .

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 9 , 686(1) (b)(iii).

 

Labour Relations Act, R.S.A. 1980, c. L‑1.1, ss. 142(5)(b), (7), (7.2), 153, 154(1), (2), 155(1), (2), 156(a), (b), 157.

 

Rules of Court (Alberta), Rule 704(1).

 

Societies Act, R.S.A. 1980, c. S-18, s. 1(c).

 

Authors Cited

 

Black's Law Dictionary, 6th ed.  St. Paul, Minn.:  West, 1990.

 

Canada.  Law Reform Commission.  Report 17.  Contempt of Court.  Ottawa:  Minister of Supply and Services Canada, 1982.

 

Maxwell, Sir Peter Benson.  Maxwell on the Interpretation of Statutes, 12th ed.  By P. St. J. Langan.  London:  Sweet & Maxwell, 1969.

 

           APPEAL from a judgment of the Alberta Court of Appeal (1990), 73 Alta. L.R. (2d) 152, 66 D.L.R. (4th) 385, 54 C.C.C. (3d) 1, 90 CLLC 14,022, dismissing an appeal from convictions of criminal contempt by O'Byrne J. and by Sinclair J.  Appeal dismissed, Lamer C.J. and Sopinka and Cory JJ. dissenting.

 

           Alexander D. Pringle and Sheila J. Greckol, for the appellant.

 

           Paul C. Bourque and Robert C. Maybank, for the respondent.

 

           I. G. Whitehall, Q.C., and L. M. Huculak, for the intervener the Attorney General of Canada.

 

           Jean‑François Jobin, for the intervener the Attorney General of Quebec.

 

           Deborah K. Lovett, for the intervener the Attorney General of British Columbia.

 

//Cory J.//

 

           The reasons of Lamer C.J. and Cory J. were delivered by

 

           Cory J. (dissenting) -- The United Nurses of Alberta, a trade union, was found on two occasions to have been guilty of criminal contempt as a result of breaches of orders of the Labour Relations Board of Alberta.  The union was fined a total of $400,000.  This appeal raises issues as to how criminal contempt should be defined and its relationship to civil contempt.

 

           I have read the reasons of my colleagues Justices McLachlin and Sopinka.  I find that I must with the greatest respect disagree with the reasons of McLachlin J.  Although I am in substantial agreement with the reasons of Sopinka J., I have some reservation with respect to his conclusion that, if the breach of orders made pursuant to the Alberta Labour Relations Act, R.S.A. 1980, c. L-1.1, could lead to invoking criminal contempt proceedings, it would trench on the federal criminal law power.  Nonetheless, I too would allow the appeal but on a somewhat broader basis.

 

The Law of Criminal Contempt

 

(a) Are Unions Subject to Criminal Contempt?

 

           There can be no doubt that unions have the legal status to sue and to be sued in civil matters.  They can and do present and defend cases before the courts.  They make full use of the courts and the remedies they provide.  If unions avail themselves of court facilities, they must be subject to the court's rules and restraints placed on the conduct of all litigants.  It follows that they are subject to prosecution for the common law offence of  criminal contempt.  There can be no question that unions fall within the scope of the term "societies" in the Criminal Code 's definition of person and they must be equally liable for prosecution for a common law crime.

 

(b) Definition of Criminal Contempt

 

           What is criminal contempt?  The common law recognizes two separate species of  contempt.  That which is civil and that which is criminal in nature.  Contempt of court may arise in many different ways and may take many different forms.  This case of course deals with the disobedience of a judicial order.  The United Nurses of Alberta violated a directive of an administrative board (the Labour Relations Board of Alberta) which had been filed with the court.  For the purpose of this case it can be taken that the union defied an order of the court.  There can be no doubt that such defiance brings a party into civil contempt.  However, both civil and criminal contempt may apply and attach to the same activity.  In this case it must be determined what element transforms civil into criminal contempt.

 

           The leading Canadian case on this issue is Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516.  There, Kellock J. examined the English jurisprudence which considered the distinction between the two types of contempt.  He cited Scott v. Scott, [1913] A.C. 419 (H.L.), as authority for the proposition that mere disobedience of a Court Order is not necessarily criminal.  He noted at p. 520 that ". . . it may be so, depending upon the nature and quality of the conduct involved".   Kellock J., at p. 522,  adopted  Oswald's treatise Contempt of Court, 3rd ed., at p. 36, as setting out the critical factor which transforms disobedience of the court order into criminal contempt, particularly the following paragraph:

 

           And, generally, the distinction between contempts criminal and not criminal 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 their nature; but that contempt in disregarding orders or judgments of a Civil Court or in not doing something ordered to be done in a cause, is not criminal in its nature.  In other words, where contempt involved a public injury or offence, it is criminal in its nature, and the proper remedy is committal--but where the contempt involves a private injury only it is not criminal in its nature.

 

           The distinction drawn by Oswald makes eminently good sense.  The purpose of the criminal law is to protect society whereas the civil law regulates and facilitates private relationships.  The sole reason for the existence of a separate category of criminal contempt is to answer the need to discourage and to punish those acts which occasion serious injuries to the public interest.  Where the injury caused by disobedience to an order is private in nature, the civil contempt powers suffice.  In order to determine whether by their conduct individuals are subject to criminal contempt, the court should ask:  who has been injured and what are the extent of the injuries caused by the contumacious conduct?

 

           In Poje the contempt proceedings arose from actions taken by union members during a strike involving the International Wood Workers of America.  The strikers were striving to prevent the loading of lumber at the docks.  To that end they formed picket lines at the dock entrance to discourage the longshoremen from loading a ship with the lumber.  An ex parte injunction against the union had been obtained restraining it from obstructing access to the ship.  Nonetheless, large numbers of men persisted in blocking the dock entrance.  At the contempt hearings the defendants argued that their purpose was simply to communicate information, not to obstruct access to the docks.  Kellock J. rejected this rather incredible explanation.  He found, at p. 526, that:

 

The congregation of the large numbers of men at the times that the longshoremen were to arrive had no other object or effect than to present force.

 

           It can be seen that Kellock J. was convinced, on the basis of the facts presented, that the picketers presented a very real threat of violence.  It was the imminent threat of violent action undertaken by a large number of men in very public defiance of a court order which transformed the breach of the injunction into actionable criminal contempt.  He concluded, at p. 527, that:

 

           The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.  It is to be observed that the nuisance created by the incidents referred to brought the appellants within the scope of s. 501  of the Criminal Code  . . . .  Over and above these offences, however, the character of the conduct involved a public injury amounting to criminal contempt.

 

           Of paramount concern to Kellock J. in reaching this conclusion was the context in which the impugned conduct took place and the public character of the injury.  These were the factors he took into account in classifying the activity as criminal contempt.

 

           The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury.  In the context of a labour dispute that would be conduct which threatens the rule of law.  These would include acts of violence or threats of violence by large groups, or activities which could lead to a serious breakdown of the social order.  The requisite mens rea of the offence is that the perpetrator wilfully or knowingly caused this harm, or alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act.  See R. v. Kopyto (1987), 61 C.R. (3d) 209 (Ont. C.A.), at p. 287.

 

(c) The Effect of Publicity

 

           My colleague McLachlin J. concludes that in essence all that is necessary to transform a defiance of a court order into criminal contempt is that the conduct occur in public.  With respect, I cannot agree.  To accept such a standard would be to ignore the basis of the distinction between criminal and civil contempt.  It would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order.  I would certainly agree that the intentional defiance of a court order, which takes place in full public view, may well be a significant factor in leading a court to conclude that there had been an injury to the public interest.  However, to make it the sole determining factor expands the scope of criminal contempt powers far beyond the limits necessary to achieve their end.  Criminal contempt provides the court with an awesome power which may have devastating consequences.  It should be exercised with the greatest restraint and caution.

 

           The Law Reform Commission of Canada examined the offence of criminal contempt in a 1982 report:  Contempt of Court, Report 17.  Although the Commission acknowledged that criminal contempt had an important role to play in sustaining the administration of justice it nevertheless advocated strict limits on its exercise.  The Commission recommended that the use of the criminal contempt power should be confined to those rare situations in which it was essential to protect our system of justice.  It noted at pp. 3-4:

 

Penal sanctions should be reserved for very serious cases and used with moderation in order to reaffirm fundamental values solemnly.  Criminal law must thus set tolerance thresholds.  In matters of contempt, these thresholds must be established on the basis of the values to be protected, and must take into account the fact that civil contempt is often sufficient to reaffirm the values contravened, or to restore peace, efficacy and impartiality to a situation jeopardized by the act of an individual.

 

           I agree that criminal contempt power should be used sparingly, with great restraint and only in those circumstances when it is required to protect the rule of law.  The response of the court to a party in defiance of its order must be proportionate to the harm caused.  If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice.

 

           If civil contempt is to be transformed into criminal contempt solely because it has occurred in a public forum, then it will have a very severe impact on all labour relations.  Labour disputes culminating in strikes and picketing must necessarily take place in the public eye.  Both unions and management rely on publicity to raise public awareness of the issues involved in the dispute.  Both sides will seek public support.  Court orders pertaining to a labour dispute will attract more attention to it.  A defiance of such a court order is bound to attract still further public attention.  In the usual course of events the breach of an order of a labour relations board during the course of union organizing, contract negotiations or a strike can, and should be, subject to monetary and legal consequences.  The consequences should as a general rule be those provided by the applicable labour relations act or those which would result from civil contempt.  It should rarely attract the penalties flowing from criminal contempt.

 

           Historically bitter conflicts between employer and employee tore at the very fabric of society.  It was evident that means were required to encourage negotiations and the resolution of disputes between labour and management.  In the early days of labour disputes, the courts were frequently and vehemently criticized for the role that they played or appeared to play.  The courts were seen to be pro-management.  Whether that view was completely justified or not, it was one which was frequently expressed.  It led inevitably to some diminution of the reputation of the courts as impartial arbiters of disputes,  whether those disputes were between the state and the subject or between subject and subject.

 

           Now the resolution of labour disputes is governed by legislative codes that have evolved over the past century.  These codes have frequently been refined over the last 40 years.  The labour relation boards established by this legislation operate to resolve conflicts and maintain the delicate balance between labour and management.  Board members are experts in the field and are sensitive to the problems that are unique to it.  It is usually the Boards that devise the solutions to conflicts.  It is the Boards operating under their statutes that are best equipped to punish for breach of their orders.  Thus the various Labour Relations Acts provide the penalties for breach which the Legislature or Parliament deemed appropriate in the context of the complex field of labour relations.  It is these punishments which should as a general rule be applied by the courts.

 

           The unrestrained use of criminal contempt proceedings in labour relations matters will once again give rise to the perception that the courts are interfering with the collective bargaining process and intervening on behalf of management.  If that perception persists, the courts will no longer be seen as impartial arbiters but as the instruments used by society for imposing crushing penalties on unions and union members.  In her dissenting judgment in the Alberta Court of Appeal (1990), 73 Alta. L.R. (2d) 152, Veit J.A. was aware of this danger and rightly recognized that it would be "unseemly" for the courts to utilize criminal contempt in these situations.

 

           Further, in considering the nature of criminal contempt, Courts should have regard to the values enshrined in the Canadian Charter of Rights and Freedoms  and in particular, the protection of freedom of expression.  It is true that the offence exists to fill the perceived need to protect the public from harm.  However, the offence must not be so broadly defined that it threatens other values important to Canadian society.  A strike is the ultimate weapon of labour.  The dispute may often involve more than the wages of labour.  Matters such as working conditions or pensions may be the basic issues.  Often it is only by means of a strike that union members can publicize and emphasize the merits of their position as they see them with regard to the issues in dispute.  It is essential that both the labour and management side be able to put forward their position so the public fully understands the issues and can determine which side is worthy of public support.  Historically, to put forward their position, management has had far greater access to the media than have the unions.  At times unions had no alternative but to take strike action and by means of peaceful picketing put forward their position to the public.  This is often the situation today.

 

           This Court has recognized that the dissemination of information was an important aspect of strikes.  See RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.  In that case McIntyre J. noted that peaceful picketing falls within scope of freedom of expression protected by s. 2 (b) of the Charter .  At page 588 he wrote:

 

There is, as I have earlier said, always some element of expression in picketing.  The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line.

 

           It must be remembered that members of the public have a right to know and understand the issues involved in a strike.  A major strike is bound to have a significant, and usually aggravating, effect on members of the public.  It is the public which needs information about the circumstances of the dispute.  It is primarily through the media coverage that the public will be able to learn of the issues and of the positions taken by management and labour.  Frequent use of criminal contempt could well have the effect of restricting the union's ability to set out its position to the media.  If publicity is chosen as the element which transforms civil into criminal contempt, then it will often deny the public as "listeners" access to this important information. 

(d) Alternate Remedies

 

           It is clear that alternate methods were available for enforcing the compliance of the provisions of the Labour Relations Board order.  First the defiance of the court order automatically invokes liability for civil contempt.  Rule 704(1) of the Alberta Rules of Court provides:

 

           704. (1) Every person in civil contempt is liable to any one or more of the following:

 

(a)               imprisonment until he has purged his contempt;

 

(b)               imprisonment for one year;

 

(c)a fine of $1,000 and in default of payment thereof, to imprisonment for one year.

 

           Although the fines are limited, to $1000 a day, nevertheless that fine on a daily basis imposed upon an individual with a prospective jail term if it is not paid, must have a deterrent effect.

 

           More importantly, the Labour Relations Act provides a code for the labour management relations and the resolution of disputes in that field.  Particularly it provides penalties for a violation of Board orders in these terms:

 

153  Any employer, employee or other person who

 

(a) contravenes or fails to comply with an order, decision, notice, declaration or directive of the Board,

 

. . .

 

is guilty of an offence.

 

154(1) Any employer, employers' organization or employer on whose behalf an employers' organization bargains collectively who commences or causes a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the lockout continues.

 

(2)  Any person not referred to in subsection (1) who commences, causes or consents to a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.

 

155(1) Any trade union that causes a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the strike continues.

 

(2) Any officer or representative of a trade union who strikes or causes or consents to a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.

 

                                                                   . . .

 

156 Subject to section 154 and 155, any person, employee, employer, employers' organization or trade union who contravenes or fails to comply with any provision of this Act or of any decision, order, directive, declaration or ruling made by the Board under this Act, is guilty of an offence and liable

 

(a) in the case of a corporation, employers' organization or trade union, to a fine not exceeding $10 000, or

 

(b) in the case of an individual, to a fine not exceeding $5000.

 

157 No prosecution for an offence referred to in this Act shall be commenced without the consent in writing of the Minister.

 

           These provisions clearly indicate that the legislators turned their minds to the issue of enforcement of board directives.  They designed a comprehensive and balanced scheme to deal with any infringement of orders. Ceilings are fixed on the amount of the fines that may be levied by these sections.  This suggests that the imposition of huge fines in labour disputes such as the $400,000 fine in the case at bar is contrary to the intent of the Labour Relations Act.  The use of criminal contempt proceedings and the imposition of such crushing penalties are inappropriate except in circumstances of violence or threats of serious violence.  The concerns voiced by the respondent that, without the criminal contempt power, the courts and labour boards will have difficulty enforcing their orders and that respect for the rule of law will be threatened are, in my view, groundless in light of the effective alternate remedies that were available.

 

Application to the Case at Bar

 

           When the United Nurses of Alberta went on strike in January, 1988 the union was without doubt in defiance of a directive of the Labour Relations Board.  As a result it could very properly have had imposed upon it the penalties provided by either the Labour Relations Act or those provided for civil contempt but no more than that.  As a strike of hospital employees it was inevitable that it would receive a great deal of media coverage.  On the first day of the strike Margaret Ethier, the president of the union, gave a news conference in response to requests from the media for a public statement.  She used the press conference to publicize the grievances of the union.  She took the opportunity to inform Albertans that emergency services would not be affected by the nurses' action.  She did not volunteer the fact that the union was in defiance of the Board's order which had already been filed with the court. Rather, she addressed that issue reluctantly and only in response to direct questions from reporters.  It is of importance that the nature of the interview be set out:

 

EthierWell, I think perhaps if money is the measure by which we're we, value by which we are measured in the society, that too--but I think there's more to it than that--a matter of respect in the way that we are treated in our working conditions and also I suspect with these latest laws and threats that they have been doing to our members--and not just in the labour relation boards hearings and the court orders that are coming at us now.  But we had threats from hearing all of these little threats out their anyway that police are going to come and get them.  That as soon as they walk out that door, they are going to take away their nursing license--those kinds of things.

 

Reporter #1So do you get respect from people by breaking the laws of the province?

 

Ethier  I don't know.

 

                                                                   . . .

 

Reporter #1So, and you're breaking the laws of the province and threatening the lives of the people that are in the hospitals so that you can put more money in your pocket?  Is that what's going on here?

 

EthierWell we're not responsible for the patients in the hospital while we're on strike.  Nurses are responsible for the patients that are assigned to them during their shift.  And I think that people tend to forget that and it is quite natural to blame the worker when the service is renewed.  But the hospital management is responsible for the patients -- 24 hour basis and the government is essentially responsible for providing health care.  That's all I can say.

 

Reporter #1Will you respond today's LRB directive?

 

Ethier  What's the directive today?

 

Reporter #2 That you go back to work?

 

EthierWell, I guess you will have to look at our picket lines for that response.

 

Reporter #2The Province's hinted that hopefully events over quote the next few hours will convince the nurses to go back to the bargaining table.  It sounds like there is action planned.  Number 1:  one I've heard is an interim injunction to end that strike immediately.  How do you react to that?

 

EthierOur policy in whatever direction from our membership is what we will be following is that the strike will continue until such time that a settlement is reached.

 

Reporter #2So the interim injunction doesn't mean anything to you?

 

EthierWell if you look at it this way, we are trying to run a business here, we're having a private dispute with our employer.  About our wages and working conditions And the strike will be continuing till such time there is an appropriate settlement.  That's why we've gone on strike.  And that's what our members have said as well.  There's a variety of threats out there against us, and contempt and jail sentences and all of these things, and they are now making application for injunctions that are at three provincial hospitals.

 

The reason we are going on strike is for an improved offer and an appropriate settlement so it would be pointless to go back simply because (word missing) had something else, get the army after us, I don't know.  But that's our position that's the members' position.  There're out there, they're going to be our [sic] there.  The thing that will get our members back to work, and the only thing that will get them back to work is an appropriate settlement.

 

Reporter #2So regardless of whatever actions province or the AHA takes you're still steadfast and the membership is that way as well?

 

Ethier  Well I'm not speaking on behalf of myself.

 

(And later in the press conference.)

 

EthierThe Labour Relations Board, the AHA, the Government who is all our employer, they're trying to stop the strike to those legal processes, pressures and threats.  We'd like to stop through a settlement and that's how it is going to be stopped so they might as well give up all of this other stuff.

 

Reporter #16Margaret, about the law, are you saying in fact that the law's an ass?

 

EthierNo, I wouldn't say that.  I've never looked too much to the law.  We've got a business to run; it's a private business dispute, you know it's basically a price war and that's what any strike is about is what price is the employees going to get for their labour?  What price will the employer get for their profit?  If their profit goes up, employees wages go down in the public sector if the employee's wages and benefits go up the Government funding has to go into it.  You're talking about, where is the money coming from?  The government's pockets or the nurses' pockets?  Eaton's and Simpson's are having a price war, Eaton's doesn't get to call the cops on Simpson's if they figure Simpson's is winning.  They don't have laws, you know speaking about the laws, saying Eaton's can advertise and Simpson's can't.  You know, I don't think they probably should have.  But the necessity of any law whatsoever interfering in collective bargaining or private contractual between employees other than saying the contract should be recognized legally.

 

           It is necessary to set out this long quotation to demonstrate that the conduct of the union leadership in this case was not sufficient to transform the civil contempt into criminal contempt.  The element of public injury is missing from the breach of the order.  The nurses certainly did not present any threat of violence.  Nor did they flaunt their disobedience of the Board's order.  Rather, the diffidence exhibited by Ethier in discussing the matter at the press conference indicates that the union did not intend to bring the administration of justice into a disrepute or hold it up to scorn.  The fact that she did not agree to the reporters' characterization of the union position as "the law's an ass" and her reticence throughout the press conference clearly indicate that she was not reckless as to the consequences of publicly demeaning the court.  Her remarks to the press were geared to a presentation of the union's negotiating position in the labour dispute and not to the disobedience of the Board's order.  The defiance of that order was tangential to the union position.

 

           Certainly the decision to violate the Board's order is repugnant.  It left the union open to civil contempt proceedings as well as the penalties provided by the provincial Labour Relations Act.  Yet those penalties were quite sufficient to punish any union's conduct and discourage any future disobedience of orders.  The union's action did not merit the invocation of the criminal contempt power.

 

           The United Nurses of Alberta did not seek nor could they avoid press coverage of their defiance of the order.  If the publicity which resulted in this case is sufficient to transform civil contempt into criminal contempt, then criminal proceeding for union breaches of orders will become the norm.  This would be an unwarranted, unnecessarily heavy-handed intrusion by the courts into the realm of labour relations, a field in which experience, sensitivity and restraint are required to preserve the delicate balance among the rights of management, labour and the community.

 

           I am of the view that criminal contempt proceedings were inappropriate and inapplicable to the situation that presented itself in the case at bar.  This is sufficient to resolve the issue.  However, there is another basis for allowing the appeal.

 

The Defendant's Right to Cross-Examine

 

           A criminal contempt hearing is held as a summary proceeding and the evidence against the defendant may be adduced in affidavit form.  This procedure does not, of itself, violate the s. 7  Charter  rights of the accused to a fair trial so long as the court conducts the hearing in accordance with the principles of fundamental justice.  Fundamental justice includes the right to cross-examination on the affidavit evidence adduced in the hearing: see R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 32 C.C.C. (3d) 417 (Ont. C.A.), at p. 422.  This approach is in accordance with the holding of this Court that any party who is the subject of criminal proceedings has the right to cross-examine witnesses on their testimony:  see R. v. Potvin, [1989] 1 S.C.R. 525, at p. 543.

 

           The right of the accused to cross-examine on the affidavit evidence need not extend to irrelevant matters.  The court may disallow a particular question, or series of questions, as irrelevant to the issues in dispute.  The question of relevance, however, should not as a general rule be determined in advance.  This Court has held that the right to cross-examination should exist without preconditions:  see R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1464-65.

 

           In the case at bar Sinclair J. placed preconditions on the right of the union's counsel to cross-examine witnesses on their affidavits.  He refused to allow the calling of certain witnesses on the grounds that the accused could not in advance justify questions he intended to ask them.  Because the evidence adduced against the accused was in affidavit form, cross-examination would have entailed some delay.  The rationale for summary proceedings in a criminal contempt hearing is that a degree of urgency exists.  That urgency however, does not justify the placing of preconditions on cross-examination.  In a criminal contempt hearing the court may act of its own motion.  The appearance of fairness and neutrality of the proceedings may be damaged, therefore, by the court's exercising pre-emptive control over the conduct of the defence.

 

           The right to cross-examine is so fundamentally important to an accused faced with a serious charge that it should not be lightly discarded.  Often the importance and significance of a cross-examination will only be revealed as it unfolds.  When it is prohibited without any exploration as to its relevance there has been a denial of fundamental justice.  In my opinion, Sinclair J. erred in refusing to allow the calling and cross-examination of the witnesses who had submitted sworn affidavits.  In those circumstances it would be wrong in principle to apply the curative provisions of s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 .

 

Disposition

 

           I would allow the appeal and set aside the conviction.

 

//McLachlin J.//

 

           The judgment of La Forest, Gonthier, McLachlin and Iacobucci JJ. was delivered by

 

           McLachlin J. -- In January, 1988, the United Nurses of Alberta went on strike.  This was contrary to directives forbidding the strike made under the Alberta Labour Relations Act, R.S.A. 1980, c. L‑1.1, and filed with the Court of Queen's Bench.  The union was found to be in criminal contempt of the orders and fined $250,000 and $150,000 on successive motions.  The Alberta Court of Appeal dismissed its appeal.  The union now appeals to this Court.

 

           The appeal raises the following issues:

 

1.  Does the union possess the status to be found in criminal contempt?

 

2.  Does the offence of criminal contempt violate the Canadian Charter of Rights and Freedoms ?

 

3.  Can a directive of a provincial board filed in the court give rise to criminal contempt?

 

4.  Did the proceedings violate the Charter  because the union was not permitted to cross‑examine on the affidavits filed by the Crown?

 

Facts

 

           On January 22, 1988 the Alberta Labour Relations Board declared that the appellant union, the United Nurses of Alberta, had failed to comply with s. 105(3) of the Alberta Labour Relations Act (as amended by S.A. 1983, c. 34) by threatening to strike or cause a strike prohibited by the Act.  The Board also issued a directive pursuant to s. 142(5) of the Act ordering that the union cease and desist from causing a strike or threatening to strike, that it refrain from conducting a strike vote, and that the union and its officers notify the members of the union of the directive and their obligation to comply.  On that same day the members of the union voted to strike, and the following day the union gave notice to the employer of most of the union members, the Alberta Hospital Association (AHA), that it would commence strike action on Monday, January 25, 1988.  On Sunday, January 24, the Board declared that the union had breached the directive of January 22, again declared that the union had breached s. 105(3) of the Labour Relations Act, and specifically declared that the strike scheduled to commence on Monday morning was illegal.  The union was again directed to cease threatening strike action, and was specifically directed not to strike on Monday, January 25.  This directive also gave notice to the union that the directives would be filed as an order of the Court of Queen's Bench.  The first directive was so filed, pursuant to s. 142(7) of the Act, on January 24, the day before the strike was scheduled to commence.  The second directive was filed with the court forthwith.  Thus, on January 25, two court orders forbad the union to strike.

 

           The strike began as scheduled on January 25.  That afternoon a press conference was held at which approximately 30 members of the media were present.  While the president of the union, Margaret Ethier, indicated that the union was primarily concerned with achieving an appropriate settlement, she acknowledged the existence of "the court orders that are coming at us now", and when asked whether the union was breaking the laws of the province, answered "Yes, that's correct."  When asked whether the possibility of an injunction meant anything, Ethier replied that the strike would be continuing "until such time that a settlement is reached."  She indicated that she was aware that "they now have [the cease and desist orders] filed with the court."  When questioned further about the illegality of the strike, she declined to agree that "the law's an ass", but continued to say that "I've never looked too much to the law.  We've got a business to run; it's a private business dispute . . . ."

 

           On January 29 the Attorney General of Alberta filed a notice of motion seeking that the union be held in criminal contempt, and on February 3 the union was found guilty by Sinclair J. and a fine of $250,000 was levied.  A second press conference was held that day, and when the president of the union was asked whether the fact of a conviction would change the union's position in terms of staying off the job, she replied "Well, as I said to you before we are prepared to go back any time we have an appropriate settlement and from the response of the AHA we don't have one."  On February 9 a second motion was filed alleging that the strike was continuing, and that the union continued to be in criminal contempt.  On February 18 the union was convicted of this second charge of criminal contempt by O'Byrne J. and fined $150,000.

 

Analysis

 

1.  Status of the Union

 

           The Court of Appeal (1990), 73 Alta. L.R. (2d) 152, Veit J. dissenting, found that the union possessed the necessary status to be found in criminal contempt.  The union is an unincorporated association.  It is recognized under the Alberta Labour Relations Act as a bargaining agent and given various powers related to that status.

 

           The question is whether the union may be held liable for a criminal offence at common law, criminal contempt being a common law offence.  The cases have held unions responsible for torts and breaches of statute law:  see International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; International Longshoremen's Association v. Maritime Employers' Association, [1979] 1 S.C.R. 120.  As this Court held in the latter case, at p. 137:

 

The Locals are legal entities capable of being sued and of being brought before the Court to answer the claims being made herein for an injunction prohibiting the participation in the activities found to constitute an illegal strike.

 

I see nothing in the authorities to suggest that the general applicability of the law to unions should not extend to the common law offence of contempt.  In so far as the common law denied unions legal status, it was to impede the effective enforcement of collective agreements:  see Young v. C.N.R., [1931] 1 D.L.R. 645 (P.C.).  That notion has long since died.  Having been given legal status for collective bargaining purposes, unions now find themselves subject to the responsibilities that go with that right.  If they exercise their rights unlawfully, they may be made to answer to the court by all the remedies available to the court, including prosecution for the common law offence of criminal contempt.

 

           I note that unions have been held subject to the law of criminal contempt in a number of cases:  R. v. United Fishermen & Allied Workers Union, [1968] 2 C.C.C. 257 (B.C.C.A.); British Columbia Telephone Co. v. Telecommunications Workers Union (1981), 121 D.L.R. (3d) 326 (B.C.); New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers (1977), 16 N.B.R. (2d) 161 (C.A.).  It may be noted that in R. v. United Fishermen & Allied Workers Union, supra, this Court denied leave to appeal with reasons, the principal one being that the Court of Appeal had properly rejected the union's arguments, including an argument identical to the one at bar, as being "ill‑founded":  see [1968] S.C.R. 255, at p. 257.  I further note that s. 25(1) of the Alberta Labour Relations Act provides in general terms that a trade union is capable of prosecuting and being prosecuted.

 

           The union argues that while the Criminal Code, R.S.C., 1985, c. C-46 , includes "societies" in its definition of "person", the union is not a society because it is not so defined under the Alberta Societies Act, R.S.A. 1980, c. S‑18.  This argument depends on defining "societies" in the Code as limited to those entities recognized by provincial legislation.  It also assumes that the definition of society in the Alberta Act is exhaustive.  In fact, it is not.  Section 1(c), provides that "In this Act . . . (c) `society' means a society incorporated under this Act".  This clearly implies that there may exist societies which are not incorporated under the Act.  Thus it appears that the union may be a "society" under the Code.  If the union may be prosecuted for a criminal offence under the Code, there appears to be little basis for suggesting that it cannot be prosecuted for a criminal offence at common law.

 

2.  The Constitutionality of the Law of Criminal Contempt

 

           It is argued that the offence of criminal contempt violates s. 7  of the Charter  because it is not codified and is vague and arbitrary.  Sections 11 (a) and 11 (g) of the Charter  are also raised.  Section 7  of the Charter  provides:

 

           7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

           There is no doubt that criminal contempt may result in imprisonment, constituting a denial of liberty.  Assuming for the purposes of this appeal that the Charter  is applicable, (see comments of Dickson C.J. in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at pp. 243‑44) the only issue is whether it effects this denial in accordance with the fundamental principles of justice.

 

           The union's first position is that all uncodified common law crimes are unconstitutional.  It is a fundamental principle of justice, it submits, that all crimes must be codified.  Criminal contempt, although mentioned in s. 9 of the Code, is not codified, both its actus reus and mens rea being defined at common law.

 

           We were referred to no authority in support of the proposition that fundamental justice requires codification of all crimes.  The union cites the principle that there must be no crime or punishment except in accordance with fixed, pre‑determined law.  But the absence of codification does not mean that a law violates this principle.  For many centuries, most of our crimes were uncodified and were not viewed as violating this fundamental rule.  Nor, conversely, is codification a guarantee that all is made manifest in the Code.  Definition of elements of codified crimes not infrequently requires recourse to common law concepts:  see R. v. Jobidon, [1991] 2 S.C.R. 714, where the majority of this Court, per Gonthier J., noted the important role the common law continues to play in the criminal law.  The union also relies on the fact that this Court has said it is for Parliament, not the courts, to create new offences:  Frey v. Fedoruk, [1950] S.C.R. 517, s. 9 of the Code.  But this does not mean that the courts should refuse to recognize the common law crime of contempt of court which pre‑dated codification and which is expressly preserved by s. 9 of the Code.  I conclude that lack of codification in itself does not render the common law crime of criminal contempt of court unconstitutional.

 

           The next argument is that the crime of criminal contempt is so vague and difficult to apply that it violates the fundamental principle of justice that the law should be fixed, pre‑determined and accessible and understandable by the public.  This argument focuses on the alleged impossibility of distinguishing between civil and criminal contempt.

 

           It is my view that a clear distinction exists between civil and criminal contempt and that the law of criminal contempt is sufficiently certain to meet the requirements of fundamental justice.  The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt.

 

           Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process.  The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government.  The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.  To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

 

           These same courts found it necessary to distinguish between civil and criminal contempt.  A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt.  However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.  This distinction emerges from Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, at p. 527, per Kellock J.:

 

           The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or a trade‑mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.  [Emphasis added.]

 

           What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole":  B.C.G.E.U. v. British Columbia (Attorney General), supra, at p. 237, per Dickson C.J., Lamer, Wilson, La Forest, and L'Heureux‑Dubé JJ. concurring.  The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils.  The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.

 

           The trial judges on the motions giving rise to this appeal focused on these concepts of public disobedience and public defiance.  Sinclair J., after quoting from Poje stated:

 

". . . the public disobedience of a court order is a criminal contempt because it involves a public challenge to the Court's authority."  [Emphasis added.]

 

           O'Byrne J. identified the same element of public disobedience and public defiance:

 

           The disobedience of the order was public, indeed it was notorious.  The union knew of the previous conviction and the penalty imposed.  Their actions constitute an open defiance of the law with full knowledge of the consequences.  [Emphasis added.]

 

           To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea).  The Crown must prove these elements beyond a reasonable doubt.  As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances.  An open and public defiance of a court order will tend to depreciate the authority of the court.  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.  On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public.  While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt.

 

           In this case there was ample evidence to support the conclusion that the union chose to defy court orders openly and continuously, with full knowledge that its defiance would be widely publicized and, even putting the union's case at its best, it did not care whether this would bring the court into disrepute.

 

           Criminal contempt, thus defined, does not violate the Charter .  It is neither vague nor arbitrary.  A person can predict in advance whether his or her conduct will constitute a crime.  The trial judges below had no trouble applying the right test, suggesting that the concept is capable of application without difficulty.  Thus the case that the crime of contempt violates the principles of fundamental justice has not been made out.  For the same reasons, violation of s. 11 (a) and (g) of the Charter  is not established, assuming arguendo that these provisions are applicable in the circumstances of the case.

 

3.Whether a Directive of the Labour Board Filed with the Court Can Found a Citation for Contempt

 

           The order which forms the basis of the contempt citation was a directive of the Labour Relations Board.  It had been registered with the Court of Queen's Bench pursuant to s. 142(7) of the Labour Relations Act, which provides:

 

142.  . . .

 

(7)  If any directive made by the Board pursuant to subsection (5) or (6) is not complied with, the Board may, on the request of an employer, employers' organization, employee, trade union or other person affected by the directive, file a copy of the directive with the clerk of the Court in the judicial district in which the complaint arose and thereupon the directive is enforceable as a judgment or order of the Court.

 

           The union submits that s. 142(7) violates s. 96  of the Constitution Act, 1867  which establishes courts under federal jurisdiction.  It submits that this constitutes the exercise by a provincial board of powers only exercisable by a s. 96  judge, and conversely, that the s. 96  court in enforcing the board order is trespassing on the field of the provincial legislature.

 

           This type of sharing arrangement is very common.  A plethora of legal decisions in our society are made by inferior tribunals, both provincial and federal.  Often the legislation provides that they may be registered with a s. 96  court for purposes of enforcement.  Sometimes the legislation gives the court the discretion to decline to enforce the order.  Sometimes, as here, it does not.

 

           The evil suggested is that s. 142(7) of the Labour Relations Act takes away some of the power of federally appointed judges by permitting an inferior tribunal to determine an important element of the offence.  The tribunal makes an order prohibiting certain conduct (in this case strike action).  That order is then registered in the court.  A motion for contempt of court is brought on the ground the order has been violated.  The s. 96  judge, barring proceedings for judicial review, must accept the tribunal's order as valid.  It remains for the judge to determine whether the Crown has established beyond a reasonable doubt that the accused has breached the directive in a way that amounts to public defiance of the authority of the court and if so, to determine the sentence.

 

           Viewed thus, the question is whether the inability of the judge to inquire into the validity of the order on the contempt proceeding deprives the judge of a responsibility which should rest with a s. 96  court.  One way of approaching the problem is to ask whether a judge entertaining a motion for contempt of an order made by a judge of the court, as opposed to an inferior tribunal, would have the power to go behind the order.  It would seem not.  The validity of the order is not an issue on the contempt hearing.  Unless the order has been set aside for want of jurisdiction, the judge hearing the motion on criminal contempt must accept it as valid.  While the defence in such case could move to have the order set aside on jurisdictional grounds, the defence on a trial involving an order of an inferior tribunal could make the equivalent motion for judicial review of the order of an administrative tribunal.  This suggests that s. 142 takes nothing away from the superior court judge.

 

           The union's suggestion that s. 142(7) might insulate the decision of the inferior tribunal from review does not withstand scrutiny.  It is true that a directive made without jurisdiction could be registered in the court and a motion for contempt made on the basis of the unrectified order.  But this would not insulate the board which made the order from review.  In Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, this Court held that a legislature could not insulate the decisions of a provincial tribunal from judicial review, with the result that an affected party can always challenge the directive of the board directly on jurisdictional grounds.  I note that the judge hearing the motion for contempt can decline to deal with the matter until the review proceedings are completed, thereby avoiding the danger of a finding of criminal contempt based on an invalid order.  In this case, the judge refused the motion to adjourn pending judicial review of the Board's order, but nothing was made of this on appeal.

 

           Another way of looking at the matter is to ask whether s. 142(7) offends because it permits a superior court to enforce orders other than its own.  In a sense, the superior court is not merely enforcing the order of the tribunal; it is also finding a criminal offence to have been made out.  But accepting that it is merely enforcing the tribunal order, this amounts not to a diminution of the superior court's powers, but rather a grant to it of additional powers.  Nor is anything taken from the inferior tribunal which does not have the power of enforcement by contempt.

 

           In fact, resort to courts of inherent jurisdiction to assist in the enforcement of orders of inferior tribunals has a long and respectable history.  It has been held that a superior court can protect the inferior court against ex facie contempt:  R. v. Parke, [1903] 2 K.B. 432, R. v. Davies, [1906] 1 K.B. 32.  The validity of a provision in the Saskatchewan Trade Union Act making orders of the Board "enforceable as orders of the Court of King's Bench" was upheld by the Privy Council:  Labour Relations Board of Saskatchewan v. John East Ironworks, Ltd., [1949] A.C. 134 (P.C.).  Finally, in Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112, this Court upheld a provision of the Nova Scotia Trade Union Act, S.N.S. 1972, c. 19, allowing the Labour Relations Board to make cease and desist orders, the penalty for breach of which could be imposed only by the courts.  In affirming the constitutionality of this scheme Laskin C.J., for the majority of the Court, held that it was equivalent to an earlier scheme identical to the one at issue in the present case, thus implicitly affirming the constitutionality of a scheme in which orders of the Board are filed with the court and are enforceable as orders of the court.

 

           It is also suggested that the effect of the position contended for by the respondent is to enable the province to enact criminal law, a matter reserved to Parliament.  I cannot agree.  The provision engages the criminal law, just as it may engage the civil contempt power, but it creates neither.  It is trite to say that failure to obey an order made by a superior court pursuant to provincial law may give rise, in appropriate circumstances, to a citation for criminal contempt.  In such a case we would not say that the provincial law on which the order was based is in any way criminal law even though the criminal contempt power may eventually be engaged.  In the present instance, s. 142(7) of the Labour Relations Act provides a special mechanism for engaging the court process when the provincial law is administered primarily by an inferior tribunal, rather than by the courts.  But the provision does not itself create the criminal (or civil) contempt power, any more than does a provincial law which is administered primarily by the courts.  It simply engages the jurisdiction of the superior court (as modified by any provincial law respecting civil contempt and by any federal law regarding criminal contempt) to control the administration of justice through civil and criminal contempt proceedings, as may be required, as well as the court's jurisdiction to lend its authority to support that of inferior courts and other bodies subject to its supervision and control.

 

           The distinction between creating the criminal law and engaging it is illustrated by consideration of s. 127 of the Code, R.S.C., 1985, c. C‑46 , which makes it an offence to disobey a lawful order made by a court of justice "or by a person or body of persons authorized by any Act to make or give the order".  "Act" is defined (in s. 2 of the Code) to include "an Act of the legislature of a province".  This means it is always a criminal offence to breach an order of a provincial tribunal, even if that tribunal is not authorized by provincial law to file the order as an order of the court.  It is clear that the province is not enacting criminal law every time it empowers a tribunal to make orders which may not be filed with the court, even though it is a criminal offence to breach such an order; rather, the province has enacted non‑criminal law, which is within its sphere of competence, and Parliament, acting within its sphere, has decided to make it a criminal offence to breach this provincial law.  Similarly, the province is not enacting a new criminal law each time it provides that orders of a particular tribunal are to be enforced as a court order.  Such a provision is non‑criminal law; it is the common law which provides that breach of such an order may, in certain circumstances, be a criminal offence.

 

           But, it may be asked, is it right that the order of an inferior tribunal can be given the status of a court order by legislative fiat, leading to the consequence that its breach is elevated from breach of tribunal order to contempt of court?  Should the common law offence of criminal contempt be available to protect orders of an inferior tribunal, or should it be restricted to orders actually made by the court?  Criminal contempt is a serious offence, it is argued, and one which it is neither necessary nor appropriate to use in a civil labour dispute.

 

           This argument is not one of jurisdiction, but of policy.  It questions whether the legislature should enact that breach of a tribunal order is subject to the same consequences as breach of a court order.  The power of the legislature to do this cannot be questioned; legislatures routinely make changes in the law which empower or require federally appointed judges to impose certain remedies.  Thus the question is one of policy; policy moreover, which can be debated.  Against the argument that the contempt power is so serious that it should only be available for breaches of orders actually made by s. 96  judges, can be raised the argument that in reality important portions of our law are administered not by s. 96  judges but by inferior tribunals, and that these decisions, like court decisions, form part of the law and deserve respect and consequently the support of the contempt power.  Similarly, against the argument that labour disputes should be settled by civil remedies, can be raised the argument that these disputes, when they threaten public respect for orders of law, transcend private concerns and properly become the subject of criminal remedies, as this Court has held in Poje, supra, and B.C.G.E.U. v. British Columbia (Attorney General), supra.  Whatever the answers to these difficult issues, where the legislature has acted properly within its jurisdiction, it is not open to the courts to substitute their views on the proper policy of the law for the views of the legislature.

 

           It is true that the legislature must be clear in making such a policy decision, and it is urged that as a matter of construction, s. 142(7) of the Labour Relations Act should be read as excluding the remedy of criminal contempt.  Two arguments are advanced in support of this proposition.  The first is that a directive of the Board which is filed with the court is not thereby converted into a court order, but remains a directive of the Board.  The power to punish for criminal contempt, it is said, is available only in relation to orders of a court.  Secondly, it is argued that the word "enforceable" engages only the civil contempt power, and not the criminal contempt power, which relates not to enforcement, but to punishment.

 

           Both of these arguments were considered and rejected by the majority of the Ontario Court of Appeal in Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270.  I agree with Blair J.A.'s analysis and his conclusions.  With regard to the first argument, the case law led him to the following conclusion, at p. 286:

 

These and similar cases simply demonstrate that Board orders are not the same as Court orders; they do not establish that Board orders are any less enforceable by the Court.

 

           On the contrary, all the decisions dealing with similar provisions in labour legislation in Canada establish that where such Board orders are filed with the Court, they have the same force and effect as orders of the Court and disobedience can be punished by contempt and other similar proceedings.

 

In considering the second argument, Blair J.A. stated that at p. 284:

 

           On first impression the interpretation of s. 94 appears to present little difficulty.  It provides that a Board order "shall be entered in the same way as a judgment or order" of the Court and "is enforceable as such".  The rule is absolute that the words are to be given their plain ordinary meaning in a statute.  No dictionary need to be called in aid to demonstrate that the words "enforceable as such" mean that an order of the Labour Relations Board is to be enforced by the Court as if it were an order of the Court.

 

He also reviewed the legislative history of the provision in question and came to the following conclusion, at pp. 283‑84:

 

The Legislature has . . . evinced a clear intention to establish a method of enforcement of orders of the Board by the Court which was clearly separate from and in addition to the pre‑existing provisions for prosecution.  The Act now provides two alternative methods of enforcement, either by the exercise of the powers of the Court or by prosecution.  There is nothing in the statute or in the legislative history to indicate that one method of enforcement is to be preferred to the other or that one is to be made subservient to the other.

 

Similarly, while Seaton J.A. in Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360 (B.C.C.A.), ventured the view, at pp. 365‑66, that the purpose of s. 30 of the British Columbia Industrial Relations Act, R.S.B.C. 1979, c. 212, was to provide for enforcement, not punishment, he went on to confirm that the power of criminal contempt, while not lightly to be used, remains available:

 

           On occasion the enforcement of an order of the Industrial Relations Council will require a finding of contempt and the imposition of punishment.  I would not expect such conclusions to be reached often and certainly not lightly.  The power to punish for contempt is one that is always exercised with restraint.

 

           That is so with respect to contempt of court orders and I think should be particularly so with respect to contempt of orders that are not court orders but are orders that are deemed to be court orders.

 

           I conclude that s. 142(7) does engage the criminal contempt power, and that in so doing it does not infringe s. 96  of the Constitution Act, 1867 .

 

4.  Cross‑Examination

 

           The contempt proceeding is a criminal proceeding, and the full protections availing an accused on a criminal trial are available.  This includes the right of cross‑examination.  However, the right of cross‑examination is not unlimited.  All cross‑examination is subject to the discretion of the judge to refuse irrelevant cross‑examination.

 

           On the motion before Sinclair J., the accused was refused the right to cross‑examine on certain affidavits, on the ground that it could not establish in advance that the cross‑examination would be relevant.  It is argued that while the trial judge could have properly exercised his discretion in limiting any irrelevant questioning, he did not have the discretion to exclude the cross‑examination altogether on the basis that the accused did not prove beforehand that the intended questions were relevant.  Assuming without deciding that this argument is correct, I share the view of Côté J.A. that no substantial wrong or miscarriage of justice has occurred, and that s. 686(1)(b)(iii) of the Code applies.  Counsel sought to cross‑examine with respect to the validity of the board directive, service on union members and sentence.  I am satisfied that the verdict would have been the same even if full cross‑examination on these matters had been allowed.  The validity of the board directive was not in issue, and sufficient service had been made on the union's president in any event.  As for sentence, the trial judge left open the possibility that the cross‑examination would be allowed if and when it came time to deal with sentencing.  When that time came, counsel did not renew his request to cross‑examine.  I note that s. 686 clearly applies to the case at bar since appeals from conviction of criminal contempt are provided by s. 10(3) of the Code which says, inter alia, "An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XXI apply, with such modifications as the circumstances require" (emphasis added).  Section 686 is found under Part XXI.

 

Disposition

 

           I would dismiss the appeal.

 

//Sopinka J.//

 

           The following are the reasons delivered by

 

           Sopinka J. (dissenting) -- I have had the privilege of reading the reasons proposed herein by Justice McLachlin.  I cannot, however, agree with the result which she has reached because in my opinion, s. 142(7) of the Alberta Labour Relations Act, R.S.A. 1980, c. L‑1.1 (the Act) does not convert the directives of the Board into an order of a court of superior jurisdiction so as to attract the power of such a court to punish for criminal contempt.

 

The Nature of Contempt

 

           The criminal law of contempt must be distinguished from civil contempt.  The purpose of criminal contempt was and is punishment for conduct calculated to bring the administration of justice by the courts into disrepute.  On the other hand, the purpose of civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court.  See B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214,  R. v. Hill (1976), 73 D.L.R. (3d) 621 (B.C.C.A.), at p. 629, Poje v. Attorney General for British Columbia, [1953] S.C.R. 516.  A useful summary of the two forms of contempt can be found in Black's Law Dictionary (6th ed. 1990), at p. 319:

 

           Contempts are also classed as civil or criminal.  The former are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect.  A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity.  But criminal contempts are offenses upon the court such as wilful disobedience of a lawful writ, process, order, rule, or command of court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment.

 

           Criminal contempt for conduct ex facie the court is generally initiated by the Attorney General while civil contempt proceedings are initiated by a party or person affected by the order sought to be enforced.  In order to secure compliance in a proceeding for civil contempt, a court may impose a fine or other penalty which will be exacted in the absence of compliance.  However, the object is always compliance and not punishment.

 

           The common law has always jealously restricted the power to punish for criminal contempt.  This is particularly true for contempt ex facie which was reserved to courts of superior jurisdiction.  See Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618.  Legislation that purports to extend the criminal contempt power must be strictly construed and the legislation must make it clear that it is to apply to the orders under consideration.  See Re Ajax & Pickering General Hospital and Canadian Union of Public Employees (1981), 132 D.L.R. (3d) 270 (Ont. C.A.), Attorney General v. British Broadcasting Corp., [1980] 3 All E.R. 161.  Moreover, the principle that ambiguity should be resolved in favour of those sought to punished applies a fortiori.  It follows from the foregoing that, before jurisdiction to punish for criminal contempt can be found, there must be an act of the court taken in the course of the administration of justice.  The alleged contemnor can hardly be said to bring the administration of justice by the courts into disrepute if the order which has been disobeyed is not in fact an order of the court but that of an inferior tribunal.

 

The Legislation

 

           Section 142 of the Alberta Labour Relations Act is found in Division 2 of the Act entitled "Unfair Labour Practices".  It provides that a complaint may be made to the Board with respect to an unfair labour practice.  The Board may appoint an inquiry officer to inquire into the complaint and endeavour to effect a settlement.  If that fails, the Board may inquire into the complaint and if it finds that there has been a breach of the Act, it may issue directives.  The directives which the Board may make and which are listed in s. 142(5)(b) are all in the form of civil redress.  Subsection (7) provides that if any directive of the Board is not complied with, the Board, on the request of an employer, employee or any other person affected by the directive, may file a copy with the clerk of the court and thereupon the directive is enforceable as a judgment or order of the court.  Except for the act of the clerk in receiving the directive, which he or she is obliged to do, there is no intervention by the court.  The court has no authority to review or question the validity of the directive nor its filing, and on an application for enforcement, it must accept the order as is.  It is true, as my colleague points out, that to the extent that directives of the Board are reviewable in the face of a privative clause, an application to enforce might be adjourned pending such review.  Nevertheless, the important fact is that review of the directive is not permitted as a pre‑condition to filing but can only be done in appropriate proceedings.  It is not over‑stating the position to characterize the role of the court in the process as a rubber stamp for the order of the Board.

 

           In endeavouring to interpret subs. (7) and, in particular, the phrase "enforceable as a judgment", it is significant that nothing in the section refers to punishment.  The whole of the emphasis is on compliance.  Moreover, there is a specific part of the Act devoted to punishment.  In Part 8 of the Act, entitled "Offences and Penalties", specific provision is made for penalties for, inter alia, contravention of a directive of the Board.  Prosecutions which are by way of summary conviction can only be undertaken with the consent of the Minister.

 

           These statutory provisions are similar to comparable provisions in other provincial statutes.  The intent is not to convert the directives of the Board into orders or judgments of the court.  The statutory provisions are merely legislative shorthand to incorporate enforcement provisions utilized by the courts into the statutes.  Notwithstanding filing, they remain directives of the Board.  The jurisprudence is surprisingly uniform in this regard.  In Re Ajax & Pickering General Hospital and Canadian Union of Public Employees, supra, the Ontario Court of Appeal dealt with a similar provision contained in the Labour Relations Act, R.S.O. 1980, c. 228.  Section 83a provided as follows:

 

           83a.  The Board shall file in the office of the Registrar of the Supreme Court a copy of a direction made under section 82 or 83, exclusive of the reasons therefor, whereupon the direction shall be entered in the same way as a judgment or order of that court and is enforceable as such.

 

At issue in the case was whether a cease and desist order of the Board, which had been breached but which had been complied with before proceedings were taken in the High Court, could be the subject of contempt proceedings.  The majority, Cory J.A. dissenting, held that it could but there was agreement that the orders of the Board that were filed in the Supreme Court did not become orders of the Court.  At page 285, Blair J.A., for the majority, stated:

 

           The distinction between orders of a Court and orders of the Board and similar Boards in other Provinces has been dealt with in a number of cases.  They establish that the orders remain orders of the Board and do not become orders of the Court.

 

Cory J.A. stated, at p. 274:

 

           It would appear that the weight of judicial authority is to the effect that a direction of the Board filed in Court pursuant to s. 94 remains a direction or order of that Board and not a judgment of the Court:  see, for example, Re Int'l Woodworkers of America and Patchogue Plymouth, Hawkesbury Mills (1976), 14 O.R. (2d) 118, 2 C.P.C. 98; Re Dylex Ltd. and Amalgamated Clothing & Textile Workers Union Toronto Joint Board et al. (1977), 17 O.R. (2d) 448; Re Amalgamated Transit Union Division No. 101‑134 and Ken Mar Handi Cabs Ltd. et al. (1971), 23 D.L.R. (3d) 220; Re Arpeg Holdings Ltd. (1968), 64 W.W.R. 93, 68 C.L.L.C. 437; Int'l Brotherhood of Electrical Workers, Local Union, No. 529  v. Central Broadcasting Co. Ltd., [1977] 2 F.C. 78, 76 C.L.L.C. para. 14,045, and Re Alcan Smelters & Chemicals Ltd., Division of Aluminum Co. of Canada Ltd. v. Canadian Ass'n of Smelter & Allied Workers et al. (1976), 77 C.L.L.C. para. 14,068.

 

           The consequences for the breach of an order of the Board are very different from those which would flow from a breach of an order of the Court.

 

           In Parklane Private Hospital Ltd. v. B.C. Government Employees Union (1988), 88 C.L.L.C. para. 14,017, Lysyk J. stated, at p. 12,082:

 

. . . the words "deemed to be" in section 30 do not in themselves convert an order of the council into a court order or require the conclusion that a filed order of the council and a court order are to be equated in every respect for purposes of the law of contempt.

 

           The effect of the position contended for by the respondent and maintained by the Court of Appeal is that provincial legislation can provide that an order which remains an order of the Board can be the subject of criminal contempt proceedings.  A province could thus provide that disobedience of an order of an administrative tribunal ex facie the tribunal is a criminal offence.  Since no such offence existed nor exists at common law, this interpretation would enable the province to enact criminal law, a matter reserved to Parliament.  Such an interpretation should not be adopted unless the language is incapable of a meaning that conforms to the powers of a province.  This principle of interpretation was adopted in Canadian Broadcasting Corp. v. Quebec Police Commission, supra, where Beetz J. stated, at pp. 641-42:

 

           In order to give effect to this principle a court may, in keeping with the Constitution, limit the apparently general scope of an enactment, even when the constitutionality of the provision has not been disputed and the Attorney General has not been impleaded.  That is what this Court did in McKay v. The Queen, [1965] S.C.R. 798.  Cartwright J.‑‑as he then was‑‑observed in the majority opinion, at pp. 803 and 804:

 

           The second applicable rule of construction is that if an enactment, whether of Parliament or of a legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly.  An alternative form in which the rule is expressed is that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the contrary result the former is to be adopted.

 

Interpretation of s. 142(7)

 

           The words "enforceable" and "judgment" are the critical words in this section.  Enforcement is a word which is ambiguous in that it can have more than one meaning.  In Toronto R. Co. v. City of Toronto (1920), 51 D.L.R. 69, at p. 73, Viscount Cave observed that it may, according to its context, refer to penalties such as a fine for the purpose of punishment or to some process for procuring specific performance.  When used in the latter sense a fine or other penalty may be employed to induce obedience.  I am of the opinion that its use in this section was intended in the latter sense to enable measures to be taken to secure compliance rather than in the criminal law sense emphasizing punishment.  This was the interpretation placed upon similar language by the Court of Appeal of British Columbia in Citation Industries Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R. (4th) 360 (B.C.C.A.).  At page 365, Seaton J.A. stated:

 

           The purpose of s. 30 is to allow for enforcement of orders, not for punishment for breach of orders.  Section 138 provides for punishment:

 

           138.  A person who refuses or neglects to observe or carry out an order made under this Act is liable on conviction,

 

(a)      if an individual, to a fine not exceeding $1,000; or

 

           (b)if a corporation, trade union or employers' organization, to a fine not exceeding $10,000.

 

Section 30 of the British Columbia Industrial Relations Act, R.S.B.C. 1979, c. 212, conforms to s. 142(7) of the Alberta Act while s. 138 conforms to s. 156 which is found in Part 8 of the Act.  Seaton J.A. did go on to state that in some cases a punishment might be imposed in order to enforce an order but the context makes it clear that he was using "enforcement" in the sense of securing compliance rather than in its punitive meaning.

 

           I conclude therefore that s. 142(7) intended to provide that a directive of the Board would be enforceable by means of the processes available to the Court of Queen's Bench to secure compliance.  This included the civil contempt power but did not include the power over criminal contempt which is reserved to punish those who have flouted judgments and orders that have in fact been made by a court.

 

           This conclusion conforms with the constitutional limitation on provincial power and in addition to other matters I have previously mentioned is supported by the following.  The whole of the section and Part 7, Division 2 of the Act emphasizes civil redress and compliance rather than punishment.  Where punishment is intended the Act so provides.  This occurs in Part 8 entitled "Offences and Penalties".  Enforcement of a directive by means of court process under s. 142(7) is initiated by the filing of the Board's directive on the request of either a party or a person affected.  The fact that the first step in engaging the assistance of the court must be initiated by a party or person affected strongly suggests that this is intended to be a civil remedy.  Otherwise, I would expect the section to provide that the Board and the Attorney General may do so.  I should observe that civil contempt proceedings were in fact initiated by the employers in this case.  See Edmonton General Hospital v. United Nurses of Alberta Local 79 (1990), 104 A.R. 394.

 

           Criminal contempt proceedings arising out of labour disputes have been rare in Canada.  In the few cases that this extraordinary measure has been applied it was used to punish those who engaged in mass picketing during an illegal strike.  One example was Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff'd [1967] 1 O.R. 609.  A number of labour leaders were jailed for contempt of a court injunction.  The Act specifically preserved this right in s. 142(7.2) (added by S.A. 1983, c. 34, s. 2(33)).  In the rare case in which it is desirable to resort to criminal sanctions in a labour dispute, proceedings can be taken by way of court injunction.  This suggests that there is no reason to extend the use of the criminal contempt power to enforce directives of the Board.

 

           In summary, I have concluded that on the basis of the ordinary rules of construction, s. 142(7) does not authorize the imposition of punishment for criminal contempt.  At minimum, the equivocal or ambiguous nature of the words "enforceable as a judgment" leave a reasonable doubt with respect to this issue.  The appellant is entitled to the benefit of this doubt.  In Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 246, this rule of construction is expressed or follows:

 

           The effect of the rule of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.  If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other.

 

           This is a rule that is applied by this Court and was recently applied in R. v. Green, [1992] 1 S.C.R. 614, to resolve an ambiguity in the interpretation of s. 254  of the Criminal Code, R.S.C., 1985, c. C-46 .

 

           This conclusion makes it unnecessary to consider the other grounds of appeal raised by the appellant and referred to in the reasons of my colleague.

 

           In the result, I would allow the appeal and quash the two convictions for contempt.

 

           Appeal dismissed, Lamer C.J. and Sopinka and Cory JJ. dissenting.

 

           Solicitor for the appellant:  Alexander D. Pringle, Edmonton.

 

           Solicitor for the respondent:  Paul Bourque, Edmonton.

 

           Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.

 

           Solicitors for the intervener the Attorney General of Quebec:  Bernard, Roy & Associés, Montréal.

 

           Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.