Judgments

[1996] 1 F.C. 787

A-848-92

(T-209-92)

Canadian Human Rights Commission (Applicant) (Respondent)

v.

Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (Respondents) (Appellants)

Indexed as: Canada (Human Rights Commission) v. Canadian Liberty Net (C.A.)

Court of Appeal, Pratte, Strayer and Linden JJ.A.— Vancouver, December 6, 1995; Ottawa, January 25, 1996.

Practice — Contempt of court — Telephonic hate messages — Where interim order prohibiting communication of telephonic hate messages, subterfuge of referring callers to U.S. telephone number to hear same messages constituting contempt of court — Invalidity of original injunction order not justifying refusal to obey; remedy being legal challenge — Sentence reduced in view of mitigating factors, inter alia fact order ought not to have been made.

In December 1991, complaints were filed with the Canadian Human Rights Commission under section 13 of the Canadian Human Rights Act alleging that Canadian Liberty Net operated a telephonic hate message system. The Commission decided to proceed to a full investigation but, before doing so, sought an interim order from the Federal Court, Trial Division to enjoin the appellants from communicating such messages until a final order was rendered by the Tribunal. The Trial Division granted this application in a formal order on March 27, 1992 (that order has now been held invalid by this Court in that the Trial Judge erred in interpreting the Canadian Human Rights Act). The appellants then recorded a new message at their telephone number in Canada, informing callers of a new telephone number “in exile” located in the United States which would connect them with a message system similar to that which had previously operated in Canada. This was an appeal from the Trial Division decision finding the appellants in breach of the injunction order and guilty of contempt of court, sentencing McAleer to two months in prison and to a fine of $2,500, and Canadian Liberty Net to a fine of $5,000.

Held (Pratte J.A. dissenting in part), the appeal should be dismissed but the sentence of imprisonment reduced to time served.

Per Linden J.A.: The injunction specifically enjoined the appellants from “causing to be communicated” (that is, facilitated, contributed to or had something to do with the communication of) certain messages. This they clearly did. The appellants tried to create a subterfuge whereby they might avoid responsibility for their hate mongering by using the American number, but they failed; it was all part of the same process of communicating hate messages that were forbidden, with the addition of another step, the so-called American exile number.

The invalid injunction order could found a charge of contempt. Court orders must be obeyed even if they turn out to have been issued in error, be it an error of fact, law, procedure, jurisdiction or authority. What is at stake is the Rule of Law and the very integrity of the judicial institutions of Canada. If a litigant feels that a court decision was wrong, the appropriate course of conduct is to challenge it through the available legal channels, not to challenge it by refusing to obey it. The injunction order which gave rise to the conviction for contempt in this case, though subsequently held to be unauthorized, may, nevertheless, serve as a basis for a conviction for contempt. Nothing hinged on the characterization of the error, because the Federal Court had the capacity generally to issue injunctions.

In contempt cases, the usual principles of sentencing apply. In this case there are mitigating factors, the most important being the fact that the order violated has been found by this Court to be invalid. It has been stated in case law that the court should give those who breach an order of the court “the benefit of the fact that the order ought not to have been made”. The two-month prison sentence imposed by the Trial Judge should therefore be reduced to the two days already served. The fines should stand.

Per Pratte J.A. (dissenting in part): If the invalidity of the injunction is not a valid excuse for the appellants’ behaviour, it follows that neither is it a valid reason for mitigating the sentence pronounced by the Judge of first instance. The appeal should be dismissed.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 13(1).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 3, 44.

Federal Court Rules, C.R.C., c. 663, R. 355.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; Wilson v. R., [1983] 2 S.C.R. 594; (1983), 4 D.L.R. (4th) 577; [1984] 1 W.W.R. 481; 26 Man. R. (2d) 194; 9 C.C.C. (3d) 97; 37 C.R. (3d) 97; 51 N.R. 321; Can. Transport (U.K.) Ltd. v. Alsbury, [1953] 1 D.L.R. 385; (1952), 7 W.W.R. (N.S.) 49; 105 C.C.C. 20 (B.C.C.A.) affd sub nom. Poje v. A.G. for British Columbia, [1953] 1 S.C.R. 516; [1953] 2 D.L.R. 785; (1953), 105 C.C.C. 311; 17 C.R. 176; Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (1986), 59 Nfld. & P.E.I.R. 93; 178 A.P.R. 98 (C.A.); Hadkinson v. Hadkinson, [1952] 2 All E.R. 567 (C.A.); Drewry v. Thacker (1819), 3 Swans. 529; 36 E.R. 963.

CONSIDERED:

British Columbia (Attorney General) v. Mount Currie Indian Band, [1991] 4 W.W.R. 507; (1991), 54 B.C.L.R. (2d) 129; [1992] 1 C.N.L.R. 70; 47 C.P.C. (2d) 214 (S.C.).

REFERRED TO:

Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155 (1992), 90 D.L.R. (4th) 190; 14 Admin. L.R. 294; 9 C.R.R. (2d) 330; 48 F.T.R. 285 (T.D.); Eastern Trust Co. v. MacKenzie Mann & Co., Ltd., [1915] 31 W.L.R. 248 (P.C.); R. v. M. (G.) (1992), 11 O.R. (3d) 225 (C.A.); Dunn v. The Board of Education for the City of Toronto (1904), 7 O.L.R. 451 (H.C.J.).

AUTHORS CITED

Kerr, William Williamson. A Treatise on the Law and Practice of Injunctions, 6th ed., London: Sweet & Maxwell Ltd., 1927.

Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed., Toronto: Canada Law Book, 1993.

APPEAL from a contempt order issued by the Trial Division (Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 504 (1992), 56 F.T.R. 42) on the basis of an invalid interim injunction. Appeal dismissed but sentence reduced.

COUNSEL:

Douglas H. Christie for respondents (appellants).

Joseph J. Arvay, Q.C. for applicant (respondent).

SOLICITORS:

Douglas H. Christie, Victoria, British Columbia, for respondents (appellants).

Arvay, Finlay, Victoria, British Columbia, for applicant (respondent).

The following are the reasons for judgment rendered in English by

Pratte J.A. (dissenting): I agree with by brother Linden’s reasons for judgment except on one point.

It has now been established by our judgment in court file number A-339-92 that the injunction which the appellants contravened should not have been granted. If, as my colleague demonstrates, the invalidity of that injunction is not a valid excuse for the appellants’ behaviour, it follows, in my view, that neither is it a valid reason for mitigating the sentence pronounced by the Judge of first instance.

I would dismiss the appeal with costs.

* * *

The following are the reasons for judgment rendered in English by

Linden J.A.: This is an appeal from a contempt order issued by the Trial Division of this Court [[1992] 3 F.C. 504 finding that the appellants, Tony McAleer (alias Derek J. Peterson) and Canadian Liberty Net (hereinafter referred to as CLN), had violated an interim injunction issued against them. There are three issues to be considered:

(1) whether or not the Trial Judge was correct in finding that there was a breach of the contempt order;

(2) whether the breach of an invalid court order can be the basis of a contempt conviction; and

(3) whether the sentence imposed by the Trial Judge was appropriate.

The primary legislative provision relevant to this appeal is Rule 355 of the Federal Court Rules [C.R.C., c. 663], which reads:

Rule 355. (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.

FACTS

The facts of this case are as follows. In December of 1991, a number of complaints were filed with the Canadian Human Rights Commission concerning a telephonic message system operated by the appellants in Vancouver, B.C. The complaints alleged that the messages so communicated denigrated Jewish and non-white persons, exposing them to possible hatred or contempt in violation of subsection 13(1) of the Canadian Human Rights Act.[1] That subsection reads as follows:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination.

The Commission conducted an initial investigation, following which it decided to proceed to a full investigation. Before doing so, however, it sought an interim injunction from the Trial Division which would restrain the appellants from communicating the impugned messages until a final determination about their legality could be made. An interim injunction was granted on March 27, 1992, which read in part as follows:

THIS COURT FURTHER ORDERS that … the respondent Canadian Liberty Net, including Cori Keating and Tony McAleer, and the respondent Derek J. Peterson, by themselves and/or by their servants, agents, volunteers, cooperants or otherwise are hereby restrained, enjoined and prohibited until a final order or disposition is rendered between these parties and persons in the Canadian Human Rights Tribunal’s proceeding, from communicating or causing to be communicated by telephonic means any messages which denigrate, disparage or mock persons by reason of their race, ancestry, national or ethnic origin, colour or religion, or just for being who they are or what they are in terms of ancestry or religion, (such as Jews or non Europeans, or non-European descended person); and those respondents shall forthwith stop so emitting any such messages until the occurrence of the aforesaid order or disposition of the said Tribunal.

On June 5, 1992, a Commission investigator telephoned the CLN number and heard a recorded voice message which informed the caller of new telephone number for CLN “in exile,” which allowed CLN to “say exactly what we want without officious criticism and sanction.” The new telephone number was located in Bellingham, Washington, U.S.A., and it connected prospective callers to a message system similar to that which had previously operated in Canada. Callers to the Canadian number were, accordingly, invited to use the new system which now emanated from the United States.

The Commission brought contempt proceedings against the appellants claiming that they had breached the injunction order by encouraging those who called the Canadian CLN number to use the Bellingham “exile” number.

TRIAL DIVISION ORDER

The Trial Judge [[1992] 3 F.C. 504 found that there had been a breach of the injunction order and that, therefore, the appellants were guilty of contempt of court. The Trial Judge based his decision on the following findings of fact: an injunction order was issued against CLN and McAleer to prevent them from transmitting certain messages; the Canadian CLN telephone number was registered in the name of Derek Peterson, an alias for Tony McAleer, and invited callers to call a telephone number in Bellingham, Washington; certain of the messages contained in the Bellingham message system were specifically prohibited by the injunction order. Upon this factual basis, the Trial Judge had no difficulty finding that the required ingredients for contempt of court, including the ingredient of subjective intention beyond a reasonable doubt, were easily met. The Trial Judge stated [at pages 519-520]:

As I have stated, Mr. Justice Muldoon [who had issued the interim injunction] specifically prohibited Canadian Liberty Net and McAleer from causing to be communicated the prohibited and I say reprehensible messages. I am satisfied that by informing persons to call the Bellingham telephone number, both Canadian Liberty Net and McAleer are causing to be communicated the prohibited and reprehensible messages.

It is clear from the evidence (Exhibit A-3) that this method of causing the prohibited messages to be communicated to Canadians was carefully thought out ….

The evidence is overwhelming, and beyond any reasonable doubt that Canadian Liberty Net and McAleer purposely and methodically arranged to have the prohibited messages transmitted by telephone to Canadians by specifically and purposely directing anyone who called the Canadian telephone number to call the American telephone number to hear the prohibited messages.

Clearly the respondents Canadian Liberty Net and McAleer acted in such a way as to interfere with the orderly administration of justice and are thus in contempt of court.

As to the sentences imposed, McAleer was sentenced to two months in prison and was also fined $2,500 which, if not paid, would be followed by a third month in prison, and CLN was fined $5,000. McAleer spent two days in prison before a stay was obtained, allowing him to be released pending this appeal.

ANALYSIS

1.         Was the injunction order breached?

The first issue is whether the Trial Judge erred when he held the injunction order was breached on the facts. I can see no reason to interfere with this finding.

The appellants contended that the injunction order was not violated. They admitted that certain of the messages available for transmission from the Bellingham telephone number were specifically listed in the injunction order. However, they argued that because the messages had emanated from a source outside of Canada, their communication did not violate the injunction. They said that the injunction was legally relevant only in Canada, so that sending the messages from the United States was not forbidden.

The appellants also took issue with the Trial Judge’s conclusion that they “caused” the communication of the prohibited messages by “informing people to call the Bellingham telephone number.” The appellants suggested that “informing people” as such amounts merely to conveying non-prohibited information and cannot be seen as a violation of the injunction. The appellants further urged that communication was not, in any event, “caused” by them. Such communication, rather, could only be caused by a prospective caller. Whether any such caller chose to use the information supplied by the Canadian number was beyond the appellants’ control. Lacking this control, they argued, the appellants cannot be said to have “caused” the communication.

These arguments have no merit. The injunction specifically enjoined the appellants from “causing to be communicated” certain messages. Interpreting “causing to be communicated”, as it reads in the injunction, requires one to ask whether the appellants facilitated, contributed to or had something to do with the communication of the messages. This they clearly did. The old standby “but for” test used to determine questions of causation yields the same result. In other words, but for the appellants’ conduct in Canada the message would not have been communicated. Counsel for the appellants admitted in argument that the appellants were “responsible for” the communication of the messages to Canadians. This was so, even though the involvement of the callers was also required to activate the message. Further, it should be recalled that subsection 13(1) speaks of causing to be communicated “in whole or in part”, indicating that the federally-regulated telecommunications undertaking need not have been the exclusive means of transmission of the messages for the appellants to run afoul of the law.

The appellants tried to create a subterfuge whereby they might avoid responsibility for their hate mongering by using the American number, but they failed; it was all part of the same process of communicating hate messages that were forbidden, with the addition of another step, the so-called American exile number.

In conclusion, the Trial Judge did not err on this issue.

2.         Can an invalid injunction order be a basis for a charge of contempt?

The appellants also contend that the injunction order was invalid and that an invalid injunction order cannot be the basis of a contempt charge. Thus, even if the causation requirement is met in the present circumstances, the contempt charge cannot stand because it is not illegal to breach an order that has no legal validity in the first place. This Court has today decided that the interim injunction order was indeed erroneously granted because the Trial Judge erred in his interpretation of the rights and remedies created by the Canadian Human Rights Act (see [1996] 1 F.C. 804(C.A.) per Strayer J.A.) but this does not end the matter. Quite the contrary.

Our legal system is anchored in the rule of law. Hence, it is clear that, where a court issues an order, that order must be obeyed even if it turns out, for some reason, that it was issued in error. This is so because more is at stake than the simple question of the validity of a particular order. What is at stake is the very integrity and authority of the judicial institutions of Canada.

Citizens cannot choose to disobey court orders which they feel are wrong. That would be a recipe for chaos. In this country of “peace, order and good government,” we must abide by court orders even while they are being legally challenged in the courts in an orderly way. This does not mean that courts never make mistakes; they clearly do. That is why we have an appeal system. If a litigant feels that a court decision was wrong, the appropriate course of conduct is to challenge it through the available legal channels, not to challenge it by refusing to obey it.

In my view, this is so regardless of the basis on which the correctness of the court order is assailed. For courts may err in a variety of ways. It should not make any difference whether the alleged error is one of fact, law, or evidence. It should be the same if the order is being impugned on constitutional grounds. Similarly, if the challenge is on a jurisdictional basis the order must be respected. This must be so, for otherwise anyone who wished to disobey a court order could claim that the court lacked the jurisdiction to issue that order, thereby circumventing this vital principle of obedience to judicial orders during challenges to their legality. The history of Canadian administrative law teaches us how rubbery the concept of jurisdiction can be, comprehending at times even egregious errors of law, fact and procedure. To countenance an exception to the principle for jurisdiction errors would risk rendering it virtually meaningless.

In all of these situations equally, in my view, the proper procedure to be followed by a litigant, who believes a court order was mistakenly made, is to appeal or to seek judicial review. In the interim, a stay may be sought. What cannot be tolerated in this country is people taking the law into their own hands and disobeying those court orders they feel are mistakenly made.

This position is well-supported in the case law. In Canada (Human Rights Commission) v. Taylor,[2] McLachlin J. dealt with the question of whether a court order may be disregarded if the law on which it is based is unconstitutional. She clearly stated it could not, and based her opinion on the primacy of the rule of law:

If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.[3]

McLachlin J.’s position is not novel; it has long been the law. A statement to the same effect is contained in Wilson v. R.,[4] where Dickson J. (as he then was) stated:

I accept the general proposition that a court order, once made, cannot be impeached otherwise than by direct attack by appeal, by action to set aside, or by one of the prerogative writs.[5]

This principle was also recognized by the British Columbia Court of Appeal in Can. Transport (U.K.) Ltd. v. Alsbury.[6] In that case, the Court was faced with the question as to whether a “mistake as to statute law” released a party from the necessity of compliance with an injunction. The Court stated:

On principle it seems clear that a Court’s mistakes as to statute law are error just like their mistakes in common law. Otherwise impossible situations would arise. There is always room for doubt as to what statutes mean, and as to whether the facts of a particular case bring it within a statute. Parties resort to Courts to find out what their legal rights are. But if a judgment was void whenever the Judge made a mistake in statute law, resort to the Courts would be useless. Everyone would then become his own lawyer, and his own Judge as well. The submission cannot be sound.[7]

One might fit this case into this principle by observing that the injunction in this case can be said to be invalid because of a “mistake as to statute law”, namely an erroneous interpretation of the Canadian Human Rights Act. Consequently, whether an injunction is flawed because of errors of law, fact, procedure, jurisdiction or authority cannot make any difference to the requirement of compliance pending reversal.

In Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees,[8] the Newfoundland Court of Appeal, in discussing the principle that an application to the court by a person in contempt of Court will not be entertained until that contempt is purged, had this to say :

There are exceptions to the strict application of that rule, having regard to the nature and effect of the court order in question. In the case of an injunction, however, the rule is uncompromising. An injunction must be obeyed and a person will not be heard by a court to set aside that injunction while he is in contempt of it. It is not open to parties affected by an injunction to determine for themselves whether that order is null or valid, irregular or regular, and so decide whether to obey it or not. The order continues to exist until it is discharged by the court and while it exists it must not be disobeyed. To hold otherwise would set at naught the Rule of Law which is the cornerstone of our democratic society.[9]

In the English case of Hadkinson v. Hadkinson,[10] Romer L.J. said the following concerning the implied validity of an injunction:

It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.[11]

The phrase “court of competent jurisdiction” as used in this passage, was not meant to tightly limit the scope of the principle being declared only to those orders made within jurisdiction; it was meant to remind us that the court issuing the injunction generally had to have the power to issue injunctions generally. In other words, in the Canadian context, it had to be a superior court.

The underlying rationale for each of these decisions is the protection of the integrity of the judicial system. It does not matter whether the court order in question is dealing with an injunction or any other matter. The general principle is that a court order is sacrosanct and must be obeyed,—well-founded or not—unless it is reversed or stayed by proper legal procedures.

Textwriters also recognize this principle. In Kerr, A Treatise on the Law and Practice of Injunctions (6th ed., 1927) this passage appears [at page 668]:

An order for an injunction must be implicitly observed, and every diligence must be exercised to obey it to the letter. However erroneously or irregularly obtained, the order must be implicitly observed so long as it exists. A party affected by it cannot disregard it or treat it as a nullity, but must have it discharged on a proper application. A man who does not obey it to the letter so long as it exists is guilty of contempt, unless there be something to mislead upon the plain reading of the order, or a pressing emergency should make it impossible to comply with the order.

Dean Robert Sharpe (now Mr. Justice Sharpe) explained the principle in his book Injunctions and Specific Performance (2d ed., 1993), at paragraph 6.220:

It is well established that a contempt application is not answered by the assertion that the injunction was erroneously granted or even that it was void. The proper course is to move against the injunction or to appeal and the court will not permit the original order to be attacked collaterally in contempt proceedings.

The situation may not be the same, however, for orders of courts that are not superior courts. This question was addressed in British Columbia (Attorney General) v. Mount Currie Indian Band,[12] where the British Columbia Supreme Court stated:

A judge of the Provincial Court … has no capacity to grant injunctive relief. Any attempt on the part of such a judge to do so would be a nullity. No such considerations apply to this court, a superior court of general jurisdiction. This court can, and does, make mistakes. That does not remove its “capacity” to make orders such as the injunction in issue here.[13]

There is no question that, unlike a provincial court, the Federal Court, Trial Division is a superior court which has the capacity to issue injunctions. It is a superior court and a court of equity pursuant to section 3 of the Federal Court Act [R.S.C., 1985, c. F-7], which would, by itself, empower it to issue injunctions. Further, section 44 specifically authorizes it to grant injunctions, inter alia. This section reads as follows:

44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions that the Court deems just.

Therefore, the fact that the Federal Court is a statutory court is of no relevance in this context. The words “of general jurisdiction”, used in the Mount Currie Indian Band case to describe the British Columbia Supreme Court, were otiose in the exposition of the principle, which must apply to all superior courts, whether “of general jurisdiction” or not, at least if they possess the general capacity to issue injunctions.

In summary, then, injunctions as well as any other orders of this Court must be complied with until reversed or stayed, even if they are not valid. Non-compliance with such orders may, consequently, properly expose someone to a charge of contempt.

Applying these principles to the present case, the result is clear. The injunction order which gave rise to the conviction for contempt in this case, though held to be unauthorized, may, nevertheless, serve as a basis for a conviction for contempt. Nothing hinges on the characterization of the error, because the Federal Court has the capacity generally to issue injunctions.

3.         Was the sentence appropriate?

The final issue remaining concerns the sentence given by the Trial Judge.

In contempt cases, the usual principles of sentencing apply. The “reasonable and just” sentence for a given offence is of course determined by considering the accused person, his or her record and his or her situation, the nature of the offence and by weighing various aggravating and mitigating factors.[14]

There are no apparent aggravating factors in this case other than the offence itself. The most important mitigating matter to consider is that the order violated has been found by this Court to be invalid. Such an order is certainly not of the type where dire consequences should result from its violation. In Drewry v. Thacker,[15] Lord Chancellor Eldon wrote that the Court should give those who breach an order of the court “the benefit of the fact that the order ought not to have been made”.[16] Such was the case here.

Additional mitigating factors exist. I note that the violation itself ceased very quickly after the contempt action was initiated. Though the original violation may have been deliberate, the appellant took measures to mitigate any damage done by discontinuing the offensive message system. The appellant McAleer does not have an extensive criminal record. He is a family man, a single father with two children. The offence in question did not immediately threaten the physical safety of others.

In all the circumstances, therefore, the prison sentence imposed by the Trial Judge which might have been appropriate if the order had been valid, should be reduced to the two days already served. In addition the fine against McAleer of $2,500 should stand, as should the fine of $5,000 against Canadian Liberty Net.

In the result, the appeal on the contempt charge should be dismissed, but the prison sentence should be reduced to the two days already served. The fines imposed on the two appellants should also be affirmed. There should be no costs in the light of the divided success.

Strayer J.A.: I agree.

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