Contempt of Court in Canada

Introduction

This paper is concerned with the common law of contempt of court. More specifically, it outlines the arguments in favour of, and against, codifying this law. The purpose is to discuss problems with contempt of court, and make proposals to restructure the law.

The first part of this paper will explain the openness principle, which is the balancing factor in respect of contempt of court. The second part will outline the common law offence of contempt of court and narrow the scope of this paper. The second part will set out and explain the arguments in favour of, and against, codifying the law. Finally, the last part of the paper will set forth some proposals for reform.

The Openness Principle

Even before freedom of expression was enshrined in our constitution, the judiciary noted that the basic principle governing judicial proceedings in Canada was their openness. Canadian courts are public institutions and accordingly, courtroom occurrences should be public business. As one Supreme Court justice stated, “openness was to be the rule; covertness the exception.” It was further noted that at every stage of the process, the rule should be one of public accessibility and judicial accountability.

Now, since free expression has been espoused by Canadians and enshrined in the Canadian Charter of Rights and Freedoms , the openness principle has attained a constitutional basis. Advancement of the principle is made possible by the media, as news reports are the primary means by which the public obtains information about the courts. Hence, courts must be open to the media in order for them to be open to the public. This concept is not novel to Canada’s judicial system. In fact, in recognition of this notion, the system has allowed media exceptions to certain rules and regulations of the court.

A limitation on the openness principle is found in the common law of contempt of court. The underlying foundation of this analysis is that contempt of court must be balanced with the openness principle because accurate and fair courtroom reports are an integral part of the due administration of justice.

Contempt of Court, Generally

Contempt addresses behaviour, actions, and publications that interfere with, or create a real risk of interfering with, the due administration of justice. It regulates a range of human activities that pose a risk of such interferenc...

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...contempt were formed but rejected on the basis that codification would have made an unnecessarily restrictive offence even more restrictive. Then, in 1984, a bill was introduced which would have codified much of the law of contempt. The bill was never enacted and nothing has happened since. The time has come to reconsider these issues as the law is now in dire need of reform.

To clarify, this paper is not suggesting that all contempt of court law be codified. That would be an almost impossible task for a paper of this length, given the complexity of this area of law. Instead, the focus has been on sub judice common law contempt, its effect on our rights and freedoms, and the arguments in respect of codification. Balancing the rights and freedoms of Canadians with the administration of justice, the logical step seems to be in the direction of codification.

Other jurisdictions, such as the United Kingdom, have taken the positive step toward codification. Perhaps Canada should examine the progress of these jurisdictions, and determine whether their attempts to limit the scope of media restrictions, while protecting the interests involved in trial proceedings, have been successful.