A controversial Quebec Court of Appeal ruling that ordered a comedian to pay $35,000 in damages to another entertainer for infringing his right to the safeguard of his dignity without discrimination after mocking his disability may lead to a chilling effect because the decision provides scant guidance over when the line is crossed, human rights law and media law experts said.
When Montreal criminal lawyer Gilles Doré wrote an acerbic letter to then Quebec Superior Court Justice Jean-Guy Boilard criticizing him for being pedant, cantankerous and petty, the case wound up before the nation’s highest court and was thought by many to have settled the issue.
A former Canadian student activist best known for his role during the 2012 Quebec student protests won an appeal reversing his contempt of court conviction after the Quebec Court of Appeal held that individuals have the right to hold strongly held convictions even in the face of a court order.
Gabriel Nadeau-Dubois, the former spokesman of the major student organization CLASSE, was found guilty three years ago of inciting students during a television interview to strike and ignore a court order that guaranteed students access to their classrooms during the student conflict in the spring of 2012 when thousands took to the streets to protest planned tuition fee increases. He was sentenced to 120 hours of community service, which was thrown out.
“Now we have a ruling which says that one of the things to be considered when it comes to verbal contempt of court is whether freedom of expression is threatened, and it is particularly important in matters where a person expresses disagreement with a judgment,” said Julius Grey, a leading civil libertarian and human rights advocate, who represented the Canadian Civil Liberties Association which was an intervenor in the case. “That is a major achievement, and extremely important.”
In its 17-page ruling in Nadeau-Dubois v. Morasse 2015 QCCA 78, the Quebec Court of Appeal underlines the exceptional nature of contempt of court procedures, stressing that it is a legal remedy that should be used “sparingly.” In a case of civil contempt, the appeal court reiterated that certain elements must be established beyond a reasonable doubt: the terms of the order must be clear and unambiguous, proper notice must be given to the contemnor of the terms of the order, there must be clear proof that the contemnor intentionally committed an act prohibited by the terms of the order, and mens rea must be proven. While the order was clear and unambiguous, none of the other elements were proven in Nadeau-Dubois’ case. The appeal court held that it was not proven, “let alone proved beyond any reasonable doubt,” that Nadeau-Dubois knew about the injunction at the time of the interview. The appeal court noted that the injunction was not served to him personally and that he was not aware of its contents or scope. “Even if such knowledge had been proved, the appellant should nevertheless be acquitted because it was not demonstrated that he violated the order,” wrote Quebec Court of Appeal Justice Jacques Dufresne in a unanimous ruling.
The appeal court held that Nadeau-Dubois neither encouraged civil disobedience nor anarchy but rather exercised his right to freedom of expression by publicly defending his controversial position. His “strong encouragement” during the interview to maintain pressure tactics through picketing did not constitute a violation of the order, added Justice Dufresne. “The right to inform as many members of the public as possible of one’s strongly held convictions in a conflict falls within the scope of freedom of expression as protected by the Canadian Charter of Rights and Freedoms and the (Quebec) Charter of human rights and freedoms, as well as the underlying right to information,” said Justice Dufresne in a key passage that will likely cited by lawyers defending individuals accused of civil contempt.
The appeal court decision is reassuring because it makes a clear distinction between incitement to civil disobedience of a court order and public disagreement with a court decision, said Pierre Trudel, a law professor with the Public Law Research Centre at the Université de Montréal. In order for the courts to conclude that an individual incited civil disobedience of a court order, the remarks must be clear and unequivocal, added Trudel. “If the lower court ruling would have been upheld, it would have created a dangerous precedent that would have limited the right to freedom of expression because it implied that publicly disagreeing with a judgment is tantamount to inciting civil disobedience of a court order, said Trudel.
The ruling also warns that in cases where one is accused of making remarks that infringe a court order, the courts must be even more prudent to infer incitement, noted Rebecca Laurin, a Montreal lawyer who helped to successfully defend Nadeau-Dubois. For a person to be found guilty of contempt of court, the person must have committed an illegal act (actus reus) and had the required state of mind (mens rea) for the criminal offence. Both elements of the offence, the actus reus and the mens rea, must be proven beyond a reasonable doubt, added Laurin. “The appeal court ruling states that the courts must be even more prudent in such cases because the actus reus will be demonstrated by the interpretation of the remarks, and opinions are protected by the freedom of expression provisions in the Charter and the Quebec Charter,” said Laurin. “Interpreting the remarks too liberally risks paralysing the right to freedom of expression.”
But Maxime Roy, who represented Jean-François Morasse, a student who lodged the complaint that Nadeau-Dubois encouraged students to ignore the court injunction, forcefully argues that the ruling has created a “perilous precedent” that will make it far more difficult to find someone guilty of contempt of court. “This is not a case about freedom of expression but incitement,” said Roy, a Quebec City criminal lawyer with Thibault, Roy Avocats. “The ruling has given weapons to people to be more easily acquitted. It is a poorly founded judgment that runs against jurisprudence. Freedom of expression does not allow to acquit someone who incites (others) to not respect a court order.
“I have the impression that the appeal court reappropriated the facts, the trial. In my opinion, there was no error of law in the decision of the judge of first instance. The role of an appeal court is not to change the verdict because they think it should have been something else. That’s what I think they did.”
Morasse intends to file an application for leave to appeal before the Supreme Court of Canada.
This story was originally published in The Lawyers Weekly.
Lawyers can put pen to paper to criticize the legal system so long as it done with objectivity, moderation and dignity ruled the Quebec Court of Appeal in an eye-opening judgment that may prove to be the last chapter in a sorry saga that witnessed a judge being reprimanded by his peers and a defense lawyer suspended for 21 days.
But there are misgivings that the ruling may produce a chilling effect, prompting lawyers to consider twice before voicing their concerns about the legal system for fear of being reprimanded by their law society.
“The ruling may lead to unease and possibly trigger a chilling effect because of the difficulties surrounding the appreciation over what constitutes criticism that is objective, moderate and dignified,” remarked Pierre Trudel, a law professor at the Université de Montréal. “By definition, a criticism is not objective. When criticizing, one does it beginning with a point of view. So it will probably incite lawyers to be even more prudent.” Continue reading “Ruling may lead lawyers to think twice about expressing themselves”
An exiled Senegalese journalist, now residing in Montreal, has been ordered to pay the son of the president of the Republic of Senegal $125,000 for defaming him in a blog widely republished by African media outlets.
In a blog run by the well-respected French-based publication Nouvel Observateur, Souleymane Jules Diop portrayed Karim Meïssa Wade, in a series of postings that were published between July and November 2005, as a criminal who appropriated or diverted public funds, was involved in money-laundering, and resorted to threats and physical intimidation.
Rules of practice implemented by the Superior Court of Québec three years ago that prohibit media from using cameras and conducting interviews except in designated areas of the courthouse as well as ban the broadcast of recordings of hearings were recently upheld by the Québec Court of Appeal.