Jean-François Morasse Appellant v. Gabriel Nadeau-Dubois, 2016 SCC 44

SUPREME COURT OF CANADA Citation: Morasse v. Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232 Appeal heard: April 22, 2016 Judgment rendered: October 27, 2016 Docket: 36351 Between: Jean-François Morasse Appellant and Gabriel Nadeau-Dubois Respondent - and - Canadian Civil Liberties Association, Alberta Public Interest Research Group and Amnistie internationale,

Section Canada francophone Interveners Official English Translation: Reasons of Wagner J. Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. Joint Reasons for Judgment: (paras. 1 to 45) Concurring Reasons: (paras. 46 to 52) Dissenting Reasons: (paras. 53 to 133) Abella and Gascon JJ. (McLachlin C.J. and Cromwell and Karakatsanis JJ. concurring) Moldaver J. Wagner J. (Côté and Brown JJ. concurring)

Morasse v. Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232 Jean-François Morasse Appellant v. Gabriel Nadeau-Dubois Respondent and Canadian Civil Liberties Association, Alberta Public Interest Research Group and Amnistie internationale,

Section Canada francophone Interveners Indexed as: Morasse v. Nadeau-Dubois 2016 SCC 44 File No.: 36351. 2016: April 22; 2016: October 27.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for quebec Civil procedure — Contempt of court — Required knowledge and intent — Statutory provision creating offence of contempt of court for anyone who disobeys any process or order of court or judge, or acts in such way as to interfere with orderly administration of justice or to impair authority or dignity of court — Student organization holding protests and forming picket lines at university — Student obtaining provisional interlocutory injunction mandating free access to university facilities and classes — Spokesperson of student organization commenting on injunctions and picket lines in interview — Whether spokesperson guilty of contempt — Code of Civil Procedure, CQLR, c.

C-25, art. 50 para. 1. N-D was the spokesperson for a student organization that held protests and formed picket lines in Quebec’s various post-secondary institutions over proposed increases in university tuition fees. M, a student , obtained a provisional interlocutory injunction that mandated free access to the facilities in which classes for M’s program were held.

In a television interview he gave with another student leader, N-D stated that such attempts to force students back to class do not work, that a minority of students use the courts to circumvent the majority’s collective decision to go on strike, and that picket lines are an entirely legitimate means to ensure respect of the vote to strike. M filed a motion for contempt against N-D for his comments in the interview.

N-D was found guilty of contempt of court under art. 50 para. 1 of the Code of Civil Procedure and sentenced to 120 hours of community service to be completed within six months under the supervision of a probation officer. The Court of Appeal set the conviction and sentence aside and entered an acquittal. Held (Wagner, Côté and Brown JJ. dissenting) : The appeal should be dismissed.

Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ.: What is at issue is whether a contempt charge brought by a private citizen against another individual, meets the strict procedural and substantive safeguards required by law to ensure that the liberty interests of those accused of contempt are fully protected. The power to find an individual guilty of contempt of court is an exceptional one. It is an enforcement power of last resort and the only civil proceeding in Quebec that may result in a penalty of imprisonment.

Because of the potential impact on an individual’s liberty, the formalities for contempt proceedings must be strictly complied with. Clear, precise and unambiguous notice of the specific contempt offence must be given to the accused, and the elements required for a conviction must be proven beyond a reasonable doubt. A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice.

At the time M instituted private proceedings against N-D, the offence of contempt of court existed in two separate provisions of the Code , now consolidated in art. 58 of the new Code .

Article 50 para. 1 established the courts’ general ability to hold someone in contempt.

Article 761 created an offence for contempt of court that related specifically to breaching injunctions. Both provisions have been interpreted harmoniously with the common law. The offence of contempt of court at art. 50 para. 1 has two branches. Where a particular court order or process is at issue, both branches require actual or inferred knowledge of it. The first branch relates to disobeying any process or order of the court or of a judge. The person accused of contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

Under the second branch, the actus reus is made out where a person “acts in such a way as to interfere with the orderly administration of justice” or “to impair the authority or dignity of the court”. The acts done, or the words complained of must either succeed in doing so, or create a serious or substantial risk of having this effect. The mens rea for this form of contempt is an intention to vilify the administration of justice, to destroy public confidence therein, or to excite disaffection against it. Good faith criticism of judicial institutions and their decisions falls short of this threshold.

The only allegations raised by M against N-D related to an alleged violation of one paragraph in an injunction order in theform of comments N-D made in an interview. N-D was not given notice as to which specific branch of art. 50 para. 1, if any, he wasbeing charged under. With respect to the first branch, there was no evidence that N-D had knowledge, either actual or inferred, of theorder. The fact that there were other injunctions does not prove that N-D knew of this particular order.

Nor can knowledge be imputed toN-D on the basis of his comments during the interview, the question he was asked, or the statements of the other student leaderinterviewed with him. Nor did his endorsement of students picketing in general amount to an encouragement to use picket lines to blockaccess to classes, since the order did not prohibit picketing altogether. M’s failure to prove N-D’s actual or inferred knowledge of theorder is dispositive of the second branch. If N-D did not know about the order, he cannot have intended to interfere with it, or encourageothers to do so.

Per Moldaver J.: In responding as he did in the television interview, N-D intended to incite students at large to breach anyand all court orders which enjoined the use of picket lines to block access to classes. Had the case proceeded on that basis, his call todisobey at large would necessarily have included the interlocutory injunction obtained by M, regardless of whether he had specificknowledge of it or not. However, the issue at trial was whether N-D breached this particular order.

The Quebec Court of Appealtherefore found correctly that the evidence did not support a finding that N-D had specific knowledge of the order, and that this was fatalto the contempt finding. Given the way the case was argued at trial, it would be both unfair and prejudicial to allow M to change thetheory of the case at this level of the proceedings. The appeal should be dismissed for this reason alone.

Per Wagner, Côté and Brown JJ. (dissenting): The purpose of convictions for contempt of court, whether in a civil or acriminal context, is to maintain public confidence in the administration of justice and ensure the smooth functioning of the courts. Thispower is exceptional and must be exercised only as a last resort. Exercising it is nonetheless justified where a contempt conviction isnecessary to protect the integrity of the justice system and to ensure that system’s credibility in the eyes of the public. Strict conditions,including the criminal law standard of proof, apply when a contempt order is made.

But this does not mean that the use of the powermust be so arduous that, in practice, it can no longer be exercised. In this case, N-D knew full well that the contempt charge he had to answer had been laid under both art. 761 and art. 50para. 1 of the Code of Civil Procedure, as can be seen from the statements made by counsel for M at the appearance, from the specialrule ordering N-D to appear, which expressly referred to both provisions, from the acts alleged by M against N-D in his motion and thedescription of the allegations against N-D, and from the submissions made by N-D at trial.

It was therefore appropriate for the trial judgeto determine whether N-D was guilty under the final portion of art. 50 para. 1 of the Code. Specific knowledge of an order is not essential for the purposes of the final portion of art. 50 para. 1 of the Code. Theoffence it establishes is broader than the simple breach of an order. A contempt conviction is possible under this provision even wherethe underlying order has not yet taken effect. Actual personal knowledge of a court order, a requirement that flows from the case law,can always be inferred from circumstantial evidence.

The inference must be reasonable given the evidence or the absence of evidence,assessed logically, and in light of common sense and human experience. The evidence must establish that the person accused of incitingothers to breach an order knew of the existence of one or more orders that were in effect at the time of the offence and was also in aposition to know that his or her acts or words were contrary to those orders. In this case, a contextual analysis of N-D’s words can lead to only one reasonable inference.

When considered in the contextof the entire interview, those words show beyond a reasonable doubt that he knew of the existence, content and scope of the orders, andthat he incited students to breach them. The trial judge’s conclusion with respect to the actus reus is entitled to deference. The actus reus under the first portion ofart. 50 para. 1 of the Code is disobeying any process or order of a court.

By contrast, the actus reus contemplated by the final portion ofthat provision consists of any action that interferes or tends to interfere with the orderly administration of justice, or that impairs or tendsto impair the authority or dignity of the court. When assessed in the context of the entire interview, N-D’s words were an incitement tobreach the order in question as well as the other orders that had been made to ensure that students would have access to their classes. It would not be appropriate to interfere with the trial judge’s finding as regards the mens rea.

An intention to interfere withthe administration of justice or to impair the authority or dignity of the court is not an essential element of the offence of contempt;recklessness as to this consequence is enough. Given the context in which N-D made his remarks, he knew that his act of defiance wouldbe public and it may be inferred that he was at least reckless as to whether the authority of the court would be impaired. The importance of freedom of expression and of the protection of that freedom in a democratic society can never beoverstated.

But one may not use the exercise of one’s freedom of expression as a pretext for inciting people to breach a court order.Ensuring compliance with orders made by the courts, and thereby maintaining the authority and credibility of the courts, has the effect ofreinforcing the rule of law and, by extension, the fundamental freedoms, including freedom of expression. The sentence imposed by the trial judge was neither unreasonable nor disproportionate. The trial judge correctly applied therules dealing with the admissibility of evidence at the sentencing stage.

N-D’s argument that at the time the sentence was imposed, theneed to prevent orders from being contravened no longer existed as a result of a legislative measure disregards the objective ofdenunciation in the case of contempt. The sentence that was imposed is not an unreasonable departure from the penalties imposed insimilar cases in which the contempt was public in nature. Cases Cited By Abella and Gascon JJ. Referred to: Morasse v. Université Laval, 2012 QCCS 1565; Morasse v. Université Laval, 2012 QCCS 1859; Lavoie v.Collège de Rosemont, 2012 QCCS 1685; Goudreault v.

Collège de Rosemont, 2012 QCCS 2017; Caron v. Paul Albert Chevrolet BuickCadillac inc., 2016 QCCA 564; Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79; Centre commercial Les Rivières ltée v. Jean bleuinc., 2012 QCCA 1663; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R.1065; Guay v. Lebel, 2016 QCCA 1555; Droit de la famille — 122875, 2012 QCCA 1855, 29 R.F.L. (7th) 137; Javanmardi v. Collège

des médecins du Québec, 2013 QCCA 306, [2013] R.J.Q. 328; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204; Imperial Oil Ltd. v.Tanguay, [1971] C.A. 109; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA 155; Trudel v. Foucher, 2015 QCCA691; Chamandy v. Chartier, 2015 QCCA 1142; Montréal (Ville de) v. Syndicat des cols bleus regroupés de Montréal (SCFP), sectionlocale 301, 2006 QCCS 5273; Gougoux v. Richard, ; Estrada v. Young, 2005 QCCA 493; Zhang v. Chau (2003), (QC CA), 229 D.L.R. (4th) 298; R. v. Kopyto (1987), (ON CA), 62 O.R. (2d) 449;Attorney-General v.

Times Newspapers Ltd., [1973] 3 All E.R. 54; Boucher v. The King, (SCC), [1951] S.C.R. 265; ReOuellet (No. 1) (1976), (QC CS), 28 C.C.C. (2d) 338; Prud’homme v. Prud’homme, ; R.W.D.S.U.,Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156. By Moldaver J. Referred to: Morasse v. Université Laval, 2012 QCCS 1859; Newcastle Recycling Ltd. v. Clarington (Municipality), 2010ONCA 314, 261 O.A.C. 373; R. v. Vaillancourt (1995), (QC CA), 105 C.C.C. (3d) 552; R. v. Tran, 2016 ONCA 48;Wexler v. The King, (SCC), [1939] S.C.R. 350. By Wagner J. (dissenting) Morasse v.

Université Laval, 2012 QCCS 1565; Morasse v. Université Laval, 2012 QCCS 1859; Zhang v. Chau (2003), (QC CA), 229 D.L.R. (4th) 298, leave to appeal refused, [2003] 3 S.C.R. v; United Nurses of Alberta v. Alberta(Attorney General), (SCC), [1992] 1 S.C.R. 901; Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada), Ltd., (SCC), [1983] 2 S.C.R. 388; Centre commercial Les Rivières ltée v. Jean bleu inc., 2012 QCCA 1663; Vidéotron Ltée v.Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065; R. v.

Bridges (1989), (BC SC), 61 D.L.R. (4th) 154, aff’d (1990), (BC CA), 54 B.C.L.R. (2d) 273; MacMillan Bloedel Ltd. v. Simpson(1994), (BC CA), 92 B.C.L.R. (2d) 1; R. v. Krawczyk, 2009 BCCA 250, 275 B.C.A.C. 6, leave to appeal refused,[2010] 1 S.C.R. xi; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), (ON SC), 4 O.R. (2d) 585,aff’d (1975), (ON CA), 11 O.R. (2d) 167; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA 155;Echostar Satellite Corp. v. Lis, ; Procom Immobilier Inc. v. Commission des valeurs mobilières du Québec, (QC CA), [1992] R.D.J. 561; Cotroni v.

Quebec Police Commission, (SCC), [1978] 1 S.C.R. 1048; ReAwada (1970), 13 C.R.N.S. 127; Droit de la famille — 122875, 2012 QCCA 1855, 29 R.F.L. (7th) 137; Iron Ore Co. of Canada v.United Steel Workers of America, Local 5795 (1979), 20 Nfld. & P.E.I.R. 27, leave to appeal refused, [1979] 1 S.C.R. viii; Bhatnager v.Canada (Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217; Canadian Broadcasting Corp. v.Quebec Police Commission, (SCC), [1979] 2 S.C.R. 618; Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79; College ofOptometrists (Ont.) v. SHS Optical Ltd., 2008 ONCA 685, 241 O.A.C. 225; Estrada v.

Young, 2005 QCCA 493; R. v. Villaroman, 2016SCC 33, [2016] 1 S.C.R. 1001; Re Tilco Plastics Ltd. v. Skurjat, (ON SC), [1966] 2 O.R. 547, aff’d (ON CA), [1967] 2 C.C.C. 196, leave to appeal refused, [1966] S.C.R. vii; Avery v. Andrews (1882), 51 L.J. Ch. 414; Ex parte Langley(1879), 13 Ch. D. 110; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; B.C.G.E.U. v. British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214; Attorney-General of Quebec v. Hebert, (QC CA), [1967] 2 C.C.C. 111;Attorney-General v. Times Newspapers Ltd., [1973] 3 All E.R. 54; R. v.

Kopyto (1987), (ON CA), 62 O.R. (2d) 449;Attorney-General of Quebec v. Charbonneau (1972), (QC CA), 13 C.C.C. (2d) 226; Boon-Strachan Coal Co. v.Campbell, [1981] C.S. 923; Re Ouellet (No. 1) (1976), (QC CS), 28 C.C.C. (2d) 338, varied on other grounds, (QC CA), [1976] C.A. 788; Daigle v. Corporation municipale de la Paroisse de St-Gabriel de Brandon, (QC CA), [1991] R.D.J. 249; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204; Poje v. Attorney General for British Columbia, (SCC), [1953] 1 S.C.R. 516; Canadian Transport Co. v.

Alsbury (1952), (BC SC), 6 W.W.R. (N.S.) 473,aff’d (BC CA), [1953] 1 D.L.R. 385, aff’d [1953] 1 S.C.R. 516; R. v. Gardiner, (SCC), [1982] 2S.C.R. 368; Westfair Foods Ltd. v. Naherny (1990), (MB CA), 63 Man. R. (2d) 238; R. v. Lacasse, 2015 SCC 64,[2015] 3 S.C.R. 1089; Agence nationale d’encadrement du secteur financier v. Coopérative de producteurs de bois précieux QuébecForestales, ; Peter Kiewit Sons Co. v. Perry, 2007 BCSC 305. Statutes and Regulations Cited Act to enable students to receive instruction from the postsecondary institutions they attend, S.Q. 2012, c. 12, ss. 10, 11, 13, 14, 32.

By-law amending the By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property,May 18, 2012, City of Montréal, By-law 12-024, art. 1. By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property, R.B.C.M., c. P-6,art. 2.1 [ad. 2012, By-law 12-024, art. 1]. Canadian Charter of Rights and Freedoms,

preamble, s. 2(b). Charter of human rights and freedoms, CQLR, c. C-12, s. 3. Code of Civil Procedure, CQLR, c. C-25 [repl. 2014, c. 1, s. 833], arts. 1, 50, 51 para. 1, 53, 53.1, 761. Code of Civil Procedure, CQLR, c. C-25.01, arts. 58, 62. Authors Cited Borrie & Lowe: The Law of Contempt, 4th ed., by Ian Cram, gen. ed. London: LexisNexis, 2010. Ferland, Denis. “La Cour suprême et l’outrage au tribunal en matière d’injonction: Baxter Travenol Laboratories of Canada Ltd. c.Cutter (Canada) Ltd., (SCC), [1983] 2 R.C.S. 388; [1983] R.D.J. 481 (C.S.C.)” (1985), 45 R. du B. 462. Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 5e éd. Montréal: Yvon Blais, 2015.

Gendreau, Paul-Arthur, et autres. L’injonction . Cowansville, Qué.: Yvon Blais, 1998. Gervais, Céline. L’injonction , 2 e éd. Cowansville, Qué.: Yvon Blais, 2005. Popovici, Adrian. L’outrage au tribunal . Montréal: Thémis, 1977. Sharpe, Robert J. Injunctions and Specific Performance , loose-leaf ed. Toronto: Canada Law Book, 2015 (updated November 2015, release 24).

APPEAL from a judgment of the Quebec Court of Appeal ( Bich, Giroux and Dufresne JJ.A.), 2015 QCCA 78 , [2015] AZ-51142714 , [2015] J.Q. n o 158 (QL) , 2015 CarswellQue 284 (WL Can.) , setting aside a conviction and sentence for contempt of court by Jacques J., 2012 QCCS 5438 , [2012] R.J.Q. 2174 , [2012] AZ-50907942 , [2012] J.Q. n o 11705 (QL) , 2012 CarswellQue 11446 (WL Can.) , and 2012 QCCS 6101 , [2012] R.J.Q. 2279 , [2012] AZ-50918771 , [2012] J.Q. n o 14670 (QL) , 2012 CarswellQue 12900 (WL Can.) , and entering an acquittal. Appeal dismissed, Wagner, C ôté and Brown JJ. dissenting.

Maxime Roy , Vincent Rochette and Ariane Gagnon-Rocque , for the appellant. Giuseppe Sciortino , Sibel Ataogul and Félix-Antoine Michaud , for the respondent. Written submissions only by Julius H. Grey , for the intervener the Canadian Civil Liberties Association. Ranjan K. Agarwal , Faiz M. Lalani and Avnish Nanda , for the intervener the Alberta Public Interest Research Group. François Larocque and Maxine Vincelette , for the intervener Amnistie internationale,

Section Canada francophone. The judgment of McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by [ 1 ] Abella and Gascon JJ. — In the spring of 2012, massive and sustained student protests took place in the province of Quebec over the issue of proposed increases in university tuition fees. The increases were announced as part of the budget introduced by the provincial government. Several student organizations which were opposed to the increases organized responsive protests. [ 2 ] The protests paralyzed several post-secondary institutions.

Classes at several institutions were cancelled. Student organizations held votes declaring themselves to be “on strike”. Picket lines were formed at several universities and CEGEPs. [1] Students and teachers were prevented from entering the buildings in which classes were to be held. As a result, several injunctions were sought to restrict these blockages and help ensure the continuation of the school year. [ 3 ] The underlying events in the spring of 2012 were deeply disruptive, and caused massive dislocation and frustration for many. That, however, is not the subject of this appeal.

We must be wary of addressing issues and evidence that were not raised or scrutinized at trial. What we are required to determine is whether a contempt charge brought by a private citizen against another individual, meets the strict procedural and substantive safeguards required by law to ensure that the liberty interests of those accused of contempt are fully protected. In our view, it did not. [ 4 ] At the time, Gabriel Nadeau-Dubois was the spokesperson for the Coalition large de l’Association pour une solidarité syndicale étudiante (CLASSE).

As one of the most active student organizations in the province, the CLASSE organized protests and picket lines in various post-secondary institutions. [ 5 ] At the height of the protests, Jean-François Morasse was a student in his final year at Université Laval’s Faculty of Planning, Architecture, Arts and Design, completing a certificate in visual arts ( arts plastiques ). The Association des étudiants en arts plastiques de l’Université Laval (ASÉTAP), the organization representing students in that program, held a strike vote and organized protests.

On February 29, 2012, picket lines were erected to block the entrance to the building where Mr. Morasse’s classes were held. [ 6 ] In the context of civil proceedings that he instituted against Université Laval, ASÉTAP and another student organization, Mr. Morasse obtained a provisional interlocutory injunction on April 12, 2012 for a 10-day period. [2] The injunction mandated free access to the facilities in which classes for the visual arts program were held.

It also ordered all persons who were then boycotting classes to refrain from obstructing or otherwise blocking access to classes by way of intimidation or through other actions likely to have this effect. [ 7 ] On April 26, 2012, Mr. Morasse brought an application to renew the injunction.

On May 2, 2012, Émond J. (as he then was) renewed the injunction through a safeguard order valid until September 14, 2012. [3] His order reaffirmed the prohibition to obstruct or otherwise prevent access to classes, but made no specific reference to picketing generally: [ translation ] ORDERS Université Laval, the Association des étudiants en arts plastiques [ASÉTAP] and any person informed of this order to give free access to the classrooms of Université Laval in which classes leading to the visual arts certificate are conducted so that those classes may be conducted in accordance with the

schedule established for the winter 2012 session; ORDERS all students and other persons currently boycotting classes to refrain from obstructing or impeding access to classes by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question;

CONFERS on Université Laval the responsibility for service, without delay, of this order in the manner provided for in the Code ofCivil Procedure and for making the order known to any person it deems advisable so that it may, as the owner and authority responsiblefor the premises, ensure the proper execution of this order; DECLARES that this order will remain in effect until September 14, 2012; [Underlining added; paras. 59-62 .] [8] Eleven days later, on May 13, 2012, Mr. Nadeau-Dubois was interviewed by RDI, CBC’s French television newsnetwork,[4] after one CEGEP, the Collège de Rosemont, resumed its regular

schedule of classes upon being ordered to do so by theSuperior Court.[5] Appearing with him was Léo Bureau-Blouin, head of the Fédération étudiante collégiale du Québec, a coalitionrepresenting student unions in Quebec’s CEGEPs and private colleges. The interview was broadcast live throughout the province. Therelevant portions are as follows: [translation] [RDI Interviewer]: Let’s talk in concrete terms about what’s happening on the ground, Léo Bureau-Blouin, so tomorrow, we see that atthe Rosemont CEGEP, students are being encouraged to return to class.

You, for your part, are you still urging strikers to set up picketlines to prevent students from entering . . . Lionel-Groulx as well . . . there are injunctions all over the place in some CEGEPs . . . ? [Léo Bureau-Blouin]: There’re no demonstrations organized directly by the federation, but every time there are forced returns to classlike this, of course it leads to picket lines that go up right in front of the college.

We have of course urged students, for example, tocomply with the injunctions, you know, when there are specific court orders, not to block the path of certain students, I think it’simportant to comply with them, but it’s sure that the decision made by Rosemont College, I think it’s a dangerous decision that couldpotentially cause tension because, first of all, the vote by the students was a democratic one after all, so this creates some uneasiness forteachers in actually crossing the picket lines there or going to give classes despite the vote, but it also causes tension above all becausethere’re students who want to go to class and there’re others who don’t want classes to resume, and this leads to heated exchanges andpotentially to fights, whereas at this point we’re in fact trying to calm the dispute, and it’s working, as the situation’s been a bit calmer inMontréal the last few days. [RDI Interviewer]: As for CLASSE, Gabriel Nadeau-Dubois, what’s the reaction to the return to class tomorrow, are you, well, are youstill encouraging picketing to prevent, um? [Gabriel Nadeau-Dubois]: What’s clear is that such decisions, such attempts to force students back to class, they never work because thestudents who’ve been on strike for 13 weeks are standing together, they respect, and I’m speaking generally here, respect the democraticwill expressed through the strike vote, and I think it’s perfectly legitimate for students to take action to uphold the democratic choice thatwas made to go on strike.

It’s quite unfortunate that there’s really a minority of students who’re using the courts to circumvent thecollective decision that was made. So we find it perfectly legitimate for people to do what they have to do to enforce the strike vote, andif that takes picket lines, we think it’s a perfectly legitimate way to do it. (R.F., at para. 62) [9] On May 15, 2012, Mr. Morasse, acting under art. 53 of the Code of Civil Procedure,[6] filed a motion for contemptagainst Mr. Nadeau-Dubois for his comments in the interview. In this motion filed in his pending proceedings against Université Laval and ASÉTAP, Mr.

Morasse claimed that Mr. Nadeau-Dubois’ comments violated the following paragraph in Émond J.’s May 2nd order: [translation] ORDERS all students and other persons currently boycotting classes to refrain from obstructing or impeding access toclasses by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question; [para.60] [10] The motion alleged only a violation of art. 761 of the Code, which stated: 761.

Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described thereinwho knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000, with or withoutimprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may be repeatedlyinflicted until the contravening party obeys the injunction.

The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason to do so. [11] On May 17, 2012, Jacques J. ordered Mr. Nadeau-Dubois to appear before the court on May 29, 2012, to respond to

the allegations and evidence raised in Mr. Morasse’s motion for contempt.[7] In this “special rule” order that he issued pursuant to art.53 of the Code, Jacques J. described the allegations made against Mr. Nadeau-Dubois as follows: [translation] “. . . did, on the air on theRDI television network, publicly incite people to contravene the order [the order of Émond J., that is] by preventing students, includingthe plaintiff [Mr.

Morasse], from having access to their classes” (para. 3 ). [12] On his own initiative, Jacques J. also referred to the first paragraph of art. 50 of the Code in the reasons for the order(only the first paragraph is relevant to this appeal): 50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a wayas to interfere with the orderly administration of justice, or to impair the authority or dignity of the court. The special rule did not indicate, however, which part of art. 50 para. 1 was at issue.

Nor did it refer to any other injunction besides theMay 2nd order of Émond J. [13] The minutes and the transcript of the May 29, 2012 hearing at which the evidence against Mr. Nadeau-Dubois wasdisclosed, made it clear that the parties agreed that Mr. Nadeau-Dubois was only being charged with having actually violated para. 60 ofthe specific May 2, 2012 injunction by committing an action susceptible of preventing or of negatively affecting access to the classes. [14] On the merits of the contempt motion, Jacques J. concluded that because Émond J.’s order had not been served onMr.

Nadeau-Dubois, he could not be found guilty of contempt of court under art. 761. However, he found him guilty under that part ofart. 50 para. 1, which creates the offence of contempt for acts that interfere with the authority or dignity of the court. Jacques J.concluded that Mr. Nadeau-Dubois’ knowledge of the injunction could be inferred from the fact that ASÉTAP, which was served withthe order, was a member of CLASSE at the time of its issuance. Since Mr. Nadeau-Dubois was CLASSE’s spokesperson at the time, hisknowledge could be inferred.

Knowledge could also be inferred from his words in the interview, and from his assumed knowledge ofother unspecified injunctions that had been issued by other courts around the same time. His statements reflected an intention to obstructjustice or undermine judicial authority. And by encouraging the contravention of injunctions generally, his words had the effect ofencouraging the contravention of Émond J.’s injunction.[8] [15] Mr.

Nadeau-Dubois was sentenced to 120 hours of community service, to be completed within six months under thesupervision of a probation officer.[9] [16] The Quebec Court of Appeal unanimously allowed the appeal.[10] Dufresne J.A., writing for the court, concludedthat the statements made during the television interview fell short of establishing that Mr. Nadeau-Dubois knew of the existence andcontent of Émond J.’s order. The question to which Mr. Nadeau-Dubois was responding in the interview dealt with an injunction grantedagainst a CEGEP, not with the order issued on May 2nd by Émond J. against Université Laval.

Nor was it appropriate to infer knowledgeof that specific order from Mr. Nadeau-Dubois’ general reference to [translation] “such attempts to force students back to class”. [17] The Court of Appeal agreed with Jacques J. that art. 761 did not apply because Mr. Nadeau-Dubois was neithernamed nor designated in the injunction. The only issue, therefore, was whether Mr. Nadeau-Dubois was guilty under art. 50 para. 1. Thecourt concluded that the mens rea was not met because it was not proven beyond a reasonable doubt that Mr. Nadeau-Dubois knew ofthe May 2nd injunction.

In those circumstances, it would be improper to impute an intention to Mr. Nadeau-Dubois to encourage othersto breach an order of which he had no knowledge. As for the actus reus, the court found that in any event, the words spoken wereambiguous, and that it could not therefore conclude beyond a reasonable doubt that these words incited or encouraged persons to violatethe injunction. The conviction and sentence were consequently set aside and an acquittal entered. [18] We agree with the conclusions of the Court of Appeal.

Jacques J. made both legal and palpable and overriding errorsthat justified the Court of Appeal’s intervention. For the following reasons, we would dismiss the appeal. Analysis [19] In Quebec, the power to find an individual guilty of contempt of court is an exceptional one. Courts haveconsistently discouraged its routine use to obtain compliance with court orders. It is, in short, an enforcement power of last resort: Caronv. Paul Albert Chevrolet Buick Cadillac inc., 2016 QCCA 564, at paras. 25-26 , citing Carey v. Laiken, 2015 SCC 17 ,[2015] 2 S.C.R. 79, at para. 36; Centre commercial Les Rivières ltée v.

Jean bleu inc., 2012 QCCA 1663, at paras. 7-8 . [20] Contempt of court is the only civil proceeding that may result in a penalty of imprisonment in Quebec: VidéotronLtée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065, at p. 1076; art. 1 of the Code ofCivil Procedure; art. 62 of the new Code of Civil Procedure, CQLR, c. C-25.01, which came into force on January 1, 2016.

Because ofthe potential impact on an individual’s liberty, the formalities for contempt proceedings must be strictly complied with — clear, preciseand unambiguous notice of the specific contempt offence for which he or she is being charged must be given to the accused, and theelements required for a conviction must be proven beyond a reasonable doubt: Guay v. Lebel, 2016 QCCA 1555, at para. 8 ;Droit de la famille — 122875 (2012), 29 R.F.L. (7th) 137 (Que. C.A.), at paras. 24 and 30, and Javanmardi v. Collège des médecins duQuébec, 2013 QCCA 306 , [2013] R.J.Q. 328 (C.A.), at para. 26, both citing Godin v.

Godin (2012), 2012 NSCA 54 ,317 N.S.R. (2d) 204 (C.A.), at para. 47; art. 53.1 of the Code of Civil Procedure; Céline Gervais, L’injonction (2nd ed. 2005), at p. 125;Vidéotron, at p. 1077, citing Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109. This insistence on formalism is especially important in theexceptional context of contempt proceedings brought by private parties. [21] In all cases of contempt, it is crucial that courts stay alert to the exceptional nature of their contempt powers, using itonly as a measure of last resort.

A conviction for contempt should only be entered where it is genuinely necessary to safeguard theadministration of justice: Centre commercial Les Rivières, at paras. 7 and 65-66; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA 155, at para. 26 . [22] At the time Mr. Morasse instituted proceedings against Mr. Nadeau-Dubois, the offence of contempt of court existedin two separate provisions of the Code of Civil Procedure, arts. 50 and 761.[11]

Article 50 para. 1, which fell within the

section of the

Code that laid out the powers of the courts and judges, established the courts’ general ability to hold someone in contempt: 50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a wayas to interfere with the orderly administration of justice, or to impair the authority or dignity of the court. [23]

Article 761 was part of the

section of the Code of Civil Procedure that dealt with injunctions. It created an offencefor contempt of court that related specifically to breaching injunctions: 761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described thereinwho knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000, with or withoutimprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may be repeatedlyinflicted until the contravening party obeys the injunction.

The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason to do so. [24] Both arts. 50 and 761 have been interpreted harmoniously with the common law: see, e.g., Vidéotron, at p. 1078;Trudel v. Foucher, 2015 QCCA 691, at para. 31 ; Chamandy v. Chartier, 2015 QCCA 1142, at paras. 26 and 31 ;Montréal (Ville de) v. Syndicat des cols bleus regroupés de Montréal (SCFP),

section locale 301, 2006 QCCS 5273, at para. 117; Gougoux v. Richard, (Que. Sup. Ct.), at paras. 28-31. [25] The offence of contempt of court at art. 50 para. 1 has two branches. Where a particular court order or process is atissue, both branches require actual or inferred knowledge of it. Actual knowledge may be shown by evidence that a court order waspersonally served on the person accused of contempt, or it can be inferred from the surrounding circumstances or from the individual’sconduct: Estrada v. Young, 2005 QCCA 493, at para. 11 ; Zhang v. Chau (2003), (QC CA), 229 D.L.R.(4th) 298 (Que.

C.A.), at paras. 30-31. But actual knowledge cannot be inferred from the conduct of others or from service of the courtorder on persons other than the accused: Syndicat des cols bleus regroupés de Montréal, at para. 128. Moreover, where a court order isalleged to have been breached, it must state clearly and unequivocally what is required or prohibited. This ensures that an individual willnot be convicted of contempt if the court order is vague: Paul Albert Chevrolet, at para. 26; Carey, at para. 33. [26] The first branch relates to disobeying any process or order of the court or of a judge.

The person accused ofcontempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey,at para. 35. [27] The second branch of art. 50 para. 1 is different. The actus reus is made out where a person “acts in such a way as tointerfere with the orderly administration of justice” or “to impair the authority or dignity of the court”. The acts done, or the wordscomplained of must either succeed in doing so, or create a serious or substantial risk of having this effect: Adrian Popovici, L’outrage autribunal (1977), at p. 41; R. v.

Kopyto (1987), (ON CA), 62 O.R. (2d) 449 (C.A.), at p. 512, citing Attorney-General v.Times Newspapers Ltd., [1973] 3 All E.R. 54 (H.L.), at pp. 66-67, per Lord Morris of Borth-y-Gest. Encouraging third parties to breach acourt order is just one example of what may constitute the actus reus for this branch of civil contempt: Denis Ferland, “La Cour suprêmeet l’outrage au tribunal en matière d’injonction: Baxter Travenol Laboratories of Canada Ltd. c.

Cutter (Canada) Ltd.” (1985), 45 R. duB. 462, at p. 464; Borrie & Lowe: The Law of Contempt (4th ed. 2010), at p. 145. [28] The mens rea for this form of contempt, at common law and in the law of Quebec, is an intention to “vilify theadministration of justice”, to “destroy public confidence therein”, or to “excite disaffection against it”: Kopyto, at p. 514, citing Boucherv. The King, (SCC), [1951] S.C.R. 265, at p. 344; Re Ouellet (No. 1) (1976), (QC CS), 28 C.C.C. (2d)338 (Que. Sup. Ct.), at pp. 356-57; Gougoux, at para. 30.

Good faith criticism of judicial institutions and their decisions, even wherevigorous and outspoken, falls short of this threshold: Kopyto, at p. 502, per Dubin J.A., dissenting in part; Prud’homme v. Prud’homme, (Que. Sup. Ct.), at paras. 8-9. Application [29] In our view, the appeal should be dismissed. [30] Mr. Nadeau-Dubois was ordered by Jacques J. to appear to answer charges under both arts. 50 para. 1 and 761 of theCode of Civil Procedure, notwithstanding that Mr. Morasse only brought charges under art. 761.

As noted, the accused in a contemptproceeding must be made aware of the precise nature of the charges laid against him or her: Droit de la famille, at paras. 26-27. Toprotect the rights of the accused, any doubt or ambiguity in this regard must enure to his or her benefit. The only allegations raised hereby Mr. Morasse against Mr. Nadeau-Dubois related to an alleged violation of para. 60 of Émond J.’s order through the comments madein the interview. No other court order besides that of Émond J. was raised in the special rule. This was made very clear at the May 29,2012 hearing.

Even Jacques J.’s reasons acknowledged that it was imperative that he be convinced beyond a reasonable doubt that Mr.Nadeau-Dubois knew the content of that order specifically (paras. 2, 49, 51(2) and 67). [31] Since Mr. Nadeau-Dubois was neither named nor described in the injunction issued by Émond J. on May 2, 2012,both prior courts concluded that a conviction for contempt under art. 761 of the Code could not be entered against him. This was notargued further by Mr. Morasse before us. [32] Turning to art. 50 para. 1, while it contains two branches, Mr.

Nadeau-Dubois was however not given notice as towhich specific part, if any, he was being charged under. Instead, the special rule simply referred to the whole paragraph. Absent otherprecision, this meant that the only offence against which Mr. Nadeau-Dubois was required to defend himself was with regard to what Mr.Morasse detailed in the allegations of his motion for contempt. [33] As previously noted, to have Mr. Nadeau-Dubois convicted under the first branch of art. 50 para. 1, Mr. Morasse

had the onus of proving beyond a reasonable doubt that Émond J.’s order was clear, that Mr. Nadeau-Dubois had knowledge of it andthat he intentionally did what the order prohibited. Yet, there was no evidence that Mr. Nadeau-Dubois had knowledge, either actual orinferred, of the May 2nd injunction. Mr. Nadeau-Dubois was not personally served with a copy of the injunction. Marie-Pierre Bocquet,who was President of ASÉTAP at the time the injunction was issued, acknowledged that she had been served with a copy of the May 2ndorder, but testified that she had not given a copy of it to CLASSE or to Mr.

Nadeau-Dubois, and was not aware of anyone else doing so.Service to persons other than Mr. Nadeau-Dubois is, on its own, insufficient to ground his knowledge of the order beyond a reasonabledoubt: Syndicat des cols bleus regroupés de Montréal, at para. 128. [34] Contrary to the conclusion reached by Jacques J., the fact that at the time of the interview there were otherinjunctions that had been issued in the context of the student protests, does not prove that Mr. Nadeau-Dubois knew of the particularinjunction issued by Émond J. As the Court of Appeal correctly stated, inferring that Mr.

Nadeau-Dubois knew of the specific order byassuming he had knowledge of other, potentially similar orders, none of which were entered in evidence or referred to in the contemptproceedings, amounts to a reversal of the burden of proof; it is a palpable and overriding error. [35] Nor do we agree that knowledge can be imputed to Mr. Nadeau-Dubois on the basis of the answer he gave to thequestion posed to him during the interview, or, more tangentially, by relying on any of the statements made by the other personinterviewed, Mr. Bureau-Blouin. Neither the interviewer’s question to, nor the statements of, Mr.

Bureau-Blouin, made any reference toany injunction applying to Université Laval or, in fact, to any other university. Mr. Bureau-Blouin only addressed injunctions thatapplied to Quebec CEGEPs. And the interviewer’s question to Mr. Nadeau-Dubois makes no mention of any injunction at all. There isnothing in the context of the interview that proves that Émond J.’s order was being referred to even obliquely, such that Mr. Nadeau-Dubois’ knowledge of it could be assumed. [36] As for Mr.

Nadeau-Dubois’ statement in the interview that [translation] “a minority of students [were] using thecourts to circumvent the collective decision that was made [to go on strike]”, it is at best ambiguous. It cannot, on its own, provide asufficient basis for concluding that he knew the details even of the CEGEP injunctions referred to by the interviewer and Mr. Bureau-Blouin, much less of Émond J.’s order specifically. [37] In any event, whatever the content of the interviewer’s question, or of Mr.

Bureau-Blouin’s own response, none oftheir words can be used in a way that attributes knowledge of Émond J.’s order to Mr. Nadeau-Dubois. Doing so opens the door topunishing individuals vicariously for the speech of others. [38] Given that it is only conjecture to impute to Mr. Nadeau-Dubois knowledge of the court order of May 2nd, let aloneits contents, it would be untenable to attribute to Mr. Nadeau-Dubois an intention to breach it through the words he used in the interview. [39] In addition, Jacques J. inferred in the circumstances that Mr.

Nadeau-Dubois’ endorsement of students picketing ingeneral amounted to an encouragement to use picket lines to block access to classes. Still, Émond J.’s May 2nd injunction did notprohibit picketing per se. It only proscribed conduct that would have the effect of impeding access to classes; picketing that fell short ofblocking this access was permitted. Mr. Nadeau-Dubois did not refer to obstructing and preventing access to classes in his comments.

Hisgeneral statement about picket lines was at the very least compatible with encouraging the continued use of picket lines in a way that ispermitted under the injunction. At most, merely saying that picketing was legitimate, even if understood as equivalent to barring access,fell far short of encouraging others to engage in unlawful conduct. [40] Even though there were other reasonable and logical inferences to draw from the words used by Mr. Nadeau-Dubois,nowhere in his reasons did Jacques J. consider these alternative possibilities.

His cursory analysis of the actual words spoken by Mr.Nadeau-Dubois failed to distinguish between legal and prohibited picket lines, resulting in his inference that Mr. Nadeau-Dubois[translation] “was . . . promoting anarchy and encouraging civil disobedience” (para. 95). The Court of Appeal was right to conclude thatJacques J.’s apparent association of picketing generally with blocking access to university classrooms specifically was mistaken (reasonsof Jacques J., at paras. 84, 94 and 103; Court of Appeal reasons, at para. 77).

This Court has established that picketing is a legitimateform of expression and of exercising the freedom of assembly; it is not by itself an illegal practice: R.W.D.S.U., Local 558 v. Pepsi-ColaCanada Beverages (West) Ltd., 2002 SCC 8 , [2002] 1 S.C.R. 156, at paras. 27 and 30-31; see also Paul Albert Chevrolet, atparas. 27 and 30. [41] Since Émond J.’s order does not prohibit picketing altogether, Jacques J. was wrong to simply assume, without anyreal consideration of alternative possibilities, that Mr.

Nadeau-Dubois was discussing a prohibited act, when he did not actually refer toblocking access to classes, but only to picketing generally. Similarly, in the absence of any direct language to that effect, it was improperfor Jacques J. to equate Mr. Nadeau-Dubois’ statement that it was legitimate to respect the vote to strike with encouraging others toengage in unlawful conduct. [42] The final question is whether Mr.

Nadeau-Dubois could be found guilty of contempt under the second branch of art.50 para. 1, that is, whether his words or acts “interfere[d] with the orderly administration of justice” or “impair[ed] the authority ordignity of the court” in the context of the charges identified in the special rule. For Mr. Nadeau-Dubois to be convicted under the secondbranch of art. 50 para. 1, given the specific allegations of the motion for contempt, the special rule and the disclosure, Mr. Morasse hadto prove beyond a reasonable doubt that Mr.

Nadeau-Dubois interfered with the orderly administration of justice or impaired the dignityof the court by encouraging others to breach para. 60 of the specific order issued by Émond J. on May 2nd. To do so, Mr. Morasse had toprove that Mr. Nadeau-Dubois knew of the order, and that he intended his words to “vilify the administration of justice” or to “excitedisaffection against it”, or was at least reckless as to whether they would do so. [43] As under the first branch of art. 50 para. 1, Mr. Morasse’s failure to prove Mr. Nadeau-Dubois’ actual or inferredknowledge of the May 2nd order is dispositive. If Mr.

Nadeau-Dubois did not know about the order, he cannot have intended to interferewith it, or encourage others to do so. [44] The events that unfolded in the spring of 2012 led to several judicial proceedings, of which the present case was butone. The role of the courts was to deal with particular and specific legal issues. This appeal is limited to determining whether the charges

brought by Mr. Morasse against Mr. Nadeau-Dubois met the strict rules governing contempt of court. To consider that anything broaderwas at play in the contempt proceedings of Mr. Morasse would, in our view, go beyond the actual legal issues, and risk punishing theaccused for who he was rather than what he was charged with. [45] We would dismiss the appeal, with costs in favour of Mr. Nadeau-Dubois. The following are the reasons delivered by [46] Moldaver J. — I have had the benefit of reading the reasons of my colleagues Justices Abella and Gascon and thoseof Justice Wagner.

Unfortunately, I am unable to agree with either set of reasons. As I will explain, had the case been presented at trial inthe manner I have outlined below, I would have granted the appeal and upheld the finding of contempt against the respondent, GabrielNadeau-Dubois. However, because of the way it proceeded at trial, procedural fairness concerns prevent me from doing so.

Accordingly,I must dismiss the appeal. [47] On my reading of the record, there can be no doubt that in responding as he did in the television interview, therespondent intended to incite students at large to breach any and all court orders which enjoined the use of picket lines as a means ofpreventing students who wished to access their classes from doing so.

In other words, his statement was a blanket call to disobey all courtorders, regardless of the individual judge who may have made the order or the specific institution to which it applied. [48] In my respectful view, had the case proceeded on that basis, the fact that the allegation against the respondentreferred specifically to a breach of Émond J.’s “safeguard order” of May 2, 2012 (Morasse v. Université Laval, 2012 QCCS 1859),would not have been fatal to his being found in contempt of court.

This is because the respondent’s call to disobey at large wouldnecessarily have included Émond J.’s order, regardless of whether he had specific knowledge of it or not. [49] Viewed that way, the respondent’s blanket call to disobey would clearly have amounted to contempt of court underthe last part of art. 50 para. 1 of the Code of Civil Procedure, CQLR, c. C-25 (now repealed), namely: acting in a way as to impair theauthority and dignity of the court. Indeed, it would have been an egregious case of contempt. [50] But that is not the way the case proceeded.

At trial, the matter was fought out on the basis that the respondent hadspecific knowledge of Émond J.’s order and that he incited students to breach it by setting up picket lines as a means of preventingstudents studying visual arts (arts plastiques) at Université Laval from accessing their classes. [51] In allowing the appeal from Jacques J.’s order finding the respondent in contempt of court (2012 QCCS 5438,[2012] R.J.Q. 2174), the Quebec Court of Appeal found, correctly in my view, that the evidence did not support a finding that therespondent had specific knowledge of Émond J.’s order, as particularized in the allegation against him, and that this was fatal to thecontempt finding (2015 QCCA 78).

I agree with this conclusion, but I do so because that is the way the case was presented at trial andthat is the case the respondent was called upon to meet. [52] Had the case been presented on the basis I have outlined above, namely, a blanket call to disobey, such a finding —that the respondent had specific knowledge of Émond J.’s order — would not have been necessary to make out a case of contemptagainst him.

But the case was not argued that way at trial, and in my view, it would be both unfair and prejudicial to allow the appellant,Jean-François Morasse, to change the theory of the case at this level (Newcastle Recycling Ltd. v. Clarington (Municipality), 2010ONCA 314, 261 O.A.C. 373; R. v. Vaillancourt (1995), (QC CA), 105 C.C.C. (3d) 552 (Que. C.A.); R. v. Tran, 2016ONCA 48; Wexler v. The King, (SCC), [1939] S.C.R. 350). For this reason ― and this reason alone ― I would dismissthe appeal with costs. English version of the reasons of Wagner, Côté and Brown JJ. delivered by Wagner J. (dissenting) — I.

Overview [53] The power to punish for contempt of court must be exercised only as a last resort, with caution and showing goodjudgment. That being said, an order for contempt must be made where doing so is necessary to protect the rule of law, freedom ofexpression and democracy, which are to a large extent dependent on the credibility of the judiciary and the justice system in the eyes ofthe public. [54] This appeal raises the question of the level of knowledge required of a person who is charged with contempt of courtfor infringing art. 50 of the Code of Civil Procedure, CQLR, c.

C-25 (“C.C.P.”),[12] which was in force at the relevant time, in a contextinvolving extensive media coverage. [55] The Superior Court convicted the respondent, Gabriel Nadeau-Dubois, of contempt under that

article on the basisthat he had, in a television interview, incited people to contravene an order of injunction made by one of its judges. The Court of Appealreversed the Superior Court’s judgment, essentially on the basis that the required level of knowledge and the actus reus had not beenestablished beyond a reasonable doubt. [56] With respect, I find that the Court of Appeal erred in reversing the Superior Court’s decision. Unlike the Court ofAppeal, I am of the opinion that proof of specific knowledge of the order of injunction was not required.

Further, in the absence of anerror in the trial court’s judgment, it was not open to the Court of Appeal to substitute its own opinion concerning the actus reus. I wouldtherefore allow the appeal. II. Context A. Background

[57] The appeal concerns a period of social unrest that was without precedent in the history of Quebec, [translation] “thebiggest student ‘strike’ in its history”. It was a conflict that is now known and described as the “Maple Spring” by analogy with the“Arab Spring” that had monopolized media attention internationally in 2011. The conflict began in response to a proposal made by theQuebec government in 2012 to raise tuition fees. Some students who disagreed with the tuition fee increase called for a “boycott” ofclasses as a pressure tactic (judgment of the Court of Appeal, 2015 QCCA 78, at para. 12 ).

A number of student associations,including the Coalition large de l’Association pour une solidarité syndicale étudiante (“CLASSE”), promoted the boycott. At all relevanttimes, the respondent was the chief spokesperson for CLASSE. He and Léo Bureau-Blouin, the president of the Fédération étudiantecollégiale du Québec, became the “standard bearers” for the movement and the “key figures” in the student protest (sentencing decision,2012 QCCS 6101, [2012] R.J.Q. 2279, at paras. 6 and 15).

In addition, while the conflict lasted, they were recognized as the “leaders ofthe movement”, were the main protagonists in the public’s eyes, and “were seen regularly in the media”. [58] Picket lines were set up in front of many post-secondary institutions to support the call for a boycott of classes(Morasse v. Université Laval, 2012 QCCS 1565, at para. 4 , per Lemelin J.). As a result, classes were [translation] “disrupted”and a number of institutions were “paralyzed”, because professors and other officials could not do their work (judgment of the Court ofAppeal, at para. 12).

Of all the dramatic actions carried out by the student associations, shutting down classes and setting up picket linesto prevent students from getting to their classrooms were without question the most controversial. [59] The movement, which originally involved only students, gradually spread, gaining support from unions and pressuregroups that were advocating for all kinds of causes that had little to do with the initial demands.

That period of [translation] “greatagitation” in the province was marked by “numerous [public] demonstrations” on a daily basis, and the demonstrations often ended inacts of violence and clashes with the police (judgment of the Court of Appeal, at para. 12). [60] In early May 2012, [translation] “[d]uring this period of class boycotts and disruption”, the appellant,Jean-François Morasse, was a student enrolled in the visual arts (arts plastiques) program at Université Laval. He wanted to finish hisstudies, he objected to the action to shut classes down, and he wanted to be able to get to his classrooms.

Université Laval’s Associationdes étudiants en arts plastiques (“ASÉTAP”) had been a member of CLASSE since April 2012 and was officially acting on behalf of allstudents in the program. It supported the shutdown of classes and, starting on February 29, 2012, it set up picket lines in front ofUniversité Laval to prevent students from attending their classes (2012 QCCS 1565, at para. 4). [61] To gain access to the classrooms, the appellant sought and obtained an order for a provisional interlocutoryinjunction from Lemelin J. on April 12, 2012.

On May 2, 2012, that order was renewed in the form of a safeguard order, which remainedin effect until September 14, 2012 (Morasse v. Université Laval, 2012 QCCS 1859 (the “Safeguard Order”)). It is that second order,made by Émond J. (as he then was), that gave rise to this appeal.

Its relevant conclusions were worded as follows: [translation] ORDERS Université Laval, the Association des étudiants en arts plastiques and any person informed of this order to givefree access to the classrooms of Université Laval in which classes leading to the visual arts certificate are conducted so that those classesmay be conducted in accordance with the

schedule established for the winter 2012 session; ORDERS all students and other persons currently boycotting classes to refrain from obstructing or impeding access toclasses by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question; [Boldin original; paras. 59-60 .] [62] After that, there was a [translation] “multiplication of [similar] injunctions” in Quebec (judgment of the Court ofAppeal, at para. 13; judgment at trial, 2012 QCCS 5438, [2012] R.J.Q. 2174, at paras. 81-82, per Jacques J.; sentencing decision, at para.32).

In all cases, the goal was the same: to give students free access to their classes so that they could complete the academic year(judgment at trial, at paras. 15 and 23). [63] Although some called the action a “strike”, no labour law principles were applied anywhere in the impugnedjudgment.

Indeed, in the judgment extending the earlier order of injunction (the Safeguard Order), Émond J. rejected arguments to thateffect in the following terms: [translation] ASETAP is confusing the monopoly on representation, if there is one, with the monopoly on work thatresults from the anti-strikebreaking provisions of the Labour Code, which prohibit employers from utilizing the services of an employeewho is a member of a bargaining unit that is on strike.

Unlike the Labour Code, the Act respecting the accreditation and financing of students’ associations contains noprovision authorizing associations to force students to boycott their classes against their will and to make them bear the consequences ofdoing so. References to the Labour Code are not only unsound and inappropriate, but also confirm the

interpretation of those who,like Lemelin J., are of the view that the laws of Quebec give students no real right to strike. [Emphasis added; footnotes omitted; paras.30-32.] [64] Émond J. also summarized the position of the appellant as follows: [translation] The purpose of Mr. Morasse’s application is not to prohibit students from demonstrating, but only to preventthem from acting unlawfully by blocking access to rooms where classes are conducted. . . . But as we mentioned above, the Act respecting the accreditation and financing of students’ associations contains noprovision authorizing student associations to force students to boycott their classes against their will. [paras. 44-46]

These observations supplemented, to some extent, the conclusions of Lemelin J., who had said the following in making the first order for a provisional injunction: [ translation ] The Court is not debating the right of individual students to support and participate in the boycott by refusing to attend classes, but their refusal does not give them the right to impair and even negate the right of other students to attend their classes so that they can finish their session. Students who boycott classes must assume the risks of doing so alone.

They have no right to impose such risks on those who want to attend their classes. [paras. 14-15] [ 65 ] Furthermore, boycotting classes is a personal choice, and many students therefore disputed the legitimacy, and even the legality, of such a pressure tactic, as can be seen from the orders discussed below. [ 66 ] Despite the many injunctions that were ordered, the situation deteriorated, acts of violence and intimidation followed one another, and officials from educational institutions were unable to safely ensure compliance with the orders when they were present at [ translation ] “heated exchanges” and “fights” (judgment of the Court of Appeal, at para. 15, quoting an interview with Mr.

Bureau- Blouin). A crisis of legitimacy and civil disobedience thus took hold in Quebec, poisoning the social climate. [ 67 ] To resolve the impasse, the Quebec National Assembly enacted special legislation on May 18, 2012 (

An Act to enable students to receive instruction from the postsecondary institutions they attend , S.Q. 2012, c. 12 (“ Law 12 ”)), which provided, inter alia , as follows: 13. No one may, by

an act or omission, deny students their right to receive instruction from the institution they attend or prevent or impede the resumption or maintenance of an institution’s instructional services or the performance by employees of work related to such services, or directly or indirectly contribute to slowing down, degrading or delaying the resumption or maintenance of such services or the performance of such work. [ 68 ] This special Act also provided that no one may “deny a person access to a place if the person has the right or a duty to be there in order to obtain services from or perform functions for an institution” (s. 14).

Finally, the Act required that members of an institution’s personnel, including professors, report for work and perform all their usual duties (ss. 10 and 11). [ 69 ] At the same time, the City of Montréal passed a new by-law ( By-law amending the By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property , By-law 12-024, May 18, 2012), which required those organizing demonstrations to give authorities, in advance, the location and itinerary chosen by the demonstrators (adding art. 2.1 to R.B.C.M., c.

P-6). [ 70 ] After the injunctions were ordered, the respondent and Mr. Bureau-Blouin granted the RDI news network (a French- language television network of the Canadian Broadcasting Corporation) a television interview on May 13, 2012 to discuss the student conflict.

The two leaders [ translation ] “took the opportunity . . . to speak to their members and supporters as well as to the people of Quebec” (judgment at trial, at para. 24). [ 71 ] During the interview, which took place at the height of the conflict, the journalist brought up with the two student leaders the fact that Collège de Rosemont was encouraging students to return to class, and then asked Mr. Bureau-Blouin the following question: [ translation ] You, for your part, are you still urging strikers to set up picket lines to prevent students from entering . . .

Lionel-Groulx [college] as well . . . there are injunctions all over the place in some CEGEPs . . .? (Judgment of the Court of Appeal, at para. 15) [ 72 ] Being aware of the nature and scope of the injunctions that had already been ordered, as his remarks show, Mr. Bureau-Blouin advised those watching to comply with the court orders: [ translation ] There’re no demonstrations organized directly by the federation, but every time there are forced returns to class like this, of course it leads to picket lines that go up right in front of the college.

We have of course urged students, for example, to comply with the injunctions, you know, when there are specific court orders, not to block the path of certain students, I think it’s important to comply with them , but it’s sure that the decision made by Rosemont College, I think it’s a dangerous decision that could potentially cause tension because, first of all, the vote by the students was a democratic one after all, so this creates some uneasiness for teachers in actually crossing the picket lines there or going to give classes despite the vote, but it also causes tension above all because there’re students who want to go to class and there’re others who don’t want classes to resume, and this leads to heated exchanges and potentially to fights, whereas at this point we’re in fact trying to calm the dispute, and it’s working, as the situation’s been a bit calmer in Montréal the last few days. [Emphasis added.] (Judgment of the Court of Appeal, at para. 15) [ 73 ] The respondent took a completely different approach.

After listening to Mr.

Bureau-Blouin’s answer, the journalist asked the respondent a similar question: [ translation ] “. . . what’s the reaction to the return to class tomorrow, are you, well, are you still encouraging picketing to prevent [students from entering]?” The respondent gave the following answer: [ translation ] What’s clear is that such decisions, such attempts to force students back to class, they never work because the students who’ve been on strike for 13 weeks are standing together, they respect, and I’m speaking generally here, respect the democratic will expressed through the strike vote, and I think it’s perfectly legitimate for students to take action to uphold the democratic choice that was made to go on strike.

It’s quite unfortunate that there’s really a minority of students who’re using the courts to circumvent the collective decision that was made. So we find it perfectly legitimate for people to do what they have to do to enforce the strike vote, and

if that takes picket lines, we think it’s a perfectly legitimate way to do it. [Emphasis added.] (Judgment of the Court of Appeal, at para. 15) B. Judgments at Issue in This Appeal [74] Two days after the interview, the appellant presented a motion under art. 53 C.C.P. for an order summoning therespondent to appear to answer a charge of contempt of court. Citing art. 761 C.C.P., he submitted that the respondent had contravenedthe Safeguard Order in his comments in the television interview.

Article 761 read as follows: 761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person notdescribed therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000,with or without imprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may berepeatedly inflicted until the contravening party obeys the injunction.

The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason todo so. [75] On May 17, 2012, Jacques J. of the Superior Court ordered the respondent to appear (2012 QCCS 2141). In thereasons for his order, Jacques J. reproduced art. 761 para. 1 C.C.P. as well as art. 50 para. 1 C.C.P., which read as follows: 50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who actsin such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.

The judge described the appellant’s arguments as follows: [translation] . . . the plaintiff[, Jean-François Morasse,] alleges that the defendant, Gabriel Nadeau-Dubois, . . . did, on theair on the RDI television network, publicly incite people to contravene the order [of Émond J.] by preventing students, including theplaintiff, from having access to their classes . . . . [Emphasis added; para. 3 .] [76] At trial, the respondent — who did not testify, as was his prerogative — raised arguments based both on the finalportion of art. 50 para. 1 C.C.P. and on art. 761 para. 1 C.C.P.

The trial judge nevertheless convicted him of contempt of court under thefinal portion of art. 50 para. 1 C.C.P., since he was of the view, beyond a reasonable doubt, that the respondent had been well aware ofthe nature of the orders of injunction, including the Safeguard Order, that his statements had incited non-compliance with those ordersand that he had intentionally acted in such a way as to impair the authority of the court. The trial judge also stated that art. 761 para. 1C.C.P. was not applicable in this case, because the Safeguard Order did not apply directly or specifically to the respondent.

Finally, hesentenced the respondent to 120 hours of community service, noting in passing that, by inciting people to contravene a court order, therespondent [translation] “broke a fundamental rule of our society based on the rule of law” (sentencing decision, at para. 65). [77] The Court of Appeal reversed the judgment, finding that specific knowledge of the Safeguard Order was requiredand that such knowledge, like knowledge of the actus reus, had not been established beyond a reasonable doubt. [78] With respect, I find that the Court of Appeal erred in reversing the trial judge’s decision.

Because the trial judge’sconclusion that art. 761 C.C.P. did not apply was not challenged in the Court of Appeal or in this Court, this appeal essentially concernsart. 50 para. 1 C.C.P. In my view, proof of specific knowledge of the order is not required where the allegation of contempt of court isbased on the final portion of that paragraph. In such a case, it is enough for the plaintiff to establish beyond a reasonable doubt that thedefendant knew that orders existed and that they contained, as did the Safeguard Order, the very terms that the defendant incited peopleto breach.

With regard to the actus reus, it is my view that the Court of Appeal erred in substituting its own assessment of therespondent’s words for that of the trial judge. Finally, I am of the opinion that the trial judge’s conclusion on the proof of mens rea wasconsistent with the applicable legal rule. I would allow the appeal and restore the respondent’s conviction for contempt of court. I wouldnot vary the sentence imposed by the trial judge. III. Analysis A.

Principles [79] In a contempt of court case, the circumstances in which the order was made must be examined carefully (Zhang v.Chau (2003), (QC CA), 229 D.L.R. (4th) 298 (Que.

C.A.), at para. 31, leave to appeal refused, [2003] 3 S.C.R. v).In the instant case, the judgments of the Superior Court and the Court of Appeal show that the situation in Quebec was explosive, manycourt orders were being breached and public demonstrations, which were initially peaceful, were escalating every day. [80] It will be helpful to recall the essential connection between punishment for contempt of court and preservation of therule of law. McLachlin J. (as she then was) made the following comment in this regard in United Nurses of Alberta v.

Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901, at p. 931: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of lawis at the heart of our society; without it there can be neither peace, nor order nor good government.

The rule of law is directly dependenton the ability of the courts to enforce their process and maintain their dignity and respect. [81] In other words, convictions for contempt of court are one of the essential tools for ensuring the rule of law in ademocratic society and for ensuring that social order prevails rather than chaos (C. Gervais, L’injonction (2nd ed. 2005), at p. 123). It iswell established that the purpose of the contempt proceeding, whether in a civil or a criminal context, is to maintain public confidence inthe administration of justice and ensure the smooth functioning of the courts (A.

Popovici, L’outrage au tribunal (1977), at pp. 98-99;Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada), Ltd., (SCC), [1983] 2 S.C.R. 388). All forms of

contempt thus involve interference with the orderly administration of justice that strikes at the very heart of the rule of law (Centrecommercial Les Rivières ltée v. Jean bleu inc., 2012 QCCA 1663, at para. 65 , quoting Vidéotron Ltée v. Industries MicrolecProduits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065). [82] It is therefore essential that all members of a “democratic” civil society adhere to this ideal and that the courts remainvigilant and ensure that the orders they make are complied with.

Such vigilance is especially crucial in a period of social crisis or unrestlike the one in Quebec during the “Maple Spring”. In such a climate, incitement to disobey court orders will cause disorder andjeopardize fundamental freedoms. “The fragility of the rule of law is such that none of us who seek to enjoy its benefits can be permittedthe occasional anarchical holiday from its mandate, no matter how compelling or how persuasive may be the cause that such anarchyseeks to advance” (R. v.

Bridges (1989), (BC SC), 61 D.L.R. (4th) 154 (B.C.S.C.), at p. 157, per Wood J., aff’d(1990), (BC CA), 54 B.C.L.R. (2d) 273 (C.A.), quoted with approval in MacMillan Bloedel Ltd. v. Simpson (1994), (BC CA), 92 B.C.L.R. (2d) 1 (C.A.), at para. 6, and in R. v. Krawczyk, 2009 BCCA 250, 275 B.C.A.C. 6, at para. 32,leave to appeal refused, [2010] 1 S.C.R. xi; see also Canada Metal Co. v.

Canadian Broadcasting Corp. (No. 2) (1974), (ON SC), 4 O.R. (2d) 585 (H.C.J.), at p. 613, aff’d (1975), (ON CA), 11 O.R. (2d) 167 (C.A.)). [83] Thus, in a contempt proceeding, the real legal issue, respect for the authority of the courts, must not be reduced to asimple question of procedure and burden of proof, as a fair and just resolution of the case must be based on the circumstances andconsequences of the alleged acts. [84] This being said, the power to punish for contempt of court is obviously exceptional and must be exercised only as alast resort (Centre commercial Les Rivières, at para. 7; Constructions Louisbourg ltée v.

Société Radio-Canada, 2014 QCCA 155, atpara. 26 ). Exercising this power is nonetheless justified where a contempt conviction is necessary to protect the integrity of thejustice system and to ensure that system’s credibility in the eyes of the public (Echostar Satellite Corp. v. Lis, (Que.Sup. Ct.), at para. 21). However, because of the nature of such an order, strict conditions, including the criminal law standard of proofbeyond a reasonable doubt, apply when one is made (art. 53.1 para. 1 C.C.P.).

But this does not mean that the use of the power must beso arduous that, in practice, it can no longer be exercised. [85] It is clear, as the Quebec Court of Appeal noted in Procom Immobilier Inc. v.

Commission des valeurs mobilières duQuébec, (QC CA), [1992] R.D.J. 561, quoted in Zhang, that while it is true that the procedural rules on contempt ofcourt must be applied strictly, that they are strictissimi juris, this does not mean that a court must tolerate breaches of contempt orders orallow people to ignore injunctions, or worse yet, to incite others to defy them, in the name of an excessive artificial formalism. See alsoGervais, at pp. 125-26. B. Notice Under the Final Portion of

Article 50 Paragraph 1 C.C.P. [86] I agree with the Court of Appeal that, in the instant case, there is no doubt the respondent knew full well that thecontempt charge he had to answer had been laid both under art. 761 C.C.P. and under the whole of art. 50 para. 1 C.C.P. [87] I acknowledge that the appellant’s motion requesting that the respondent be ordered to appear for contempt of courtreferred specifically only to art. 761 C.C.P.

At the appearance, counsel for the appellant stated that the appellant was also submitting thatthe respondent had breached para. 60 of the Safeguard Order by taking [translation] “any action that could prevent or adversely affectaccess to the classes in question”. That argument was based on the essential elements of art. 761 C.C.P. and the first portion of art. 50para. 1 C.C.P., both of which apply to offences based on a breach by a defendant of an order made by the Superior Court. [88] The special rule ordering the respondent to appear, with which he was served, expressly referred to arts. 50 and 761C.C.P.

Because that rule did not refer to only one portion of art. 50 para. 1 C.C.P., it can be concluded that both articles are central to thecase.

In addition, the acts alleged against the respondent by the appellant in his motion, and the description of the allegations against therespondent in the special rule — including that he had [translation] “publicly incite[d] people to contravene” the Safeguard Order — fallwithin the final portion of art. 50 para. 1 C.C.P. (see judgment at trial, at paras. 61-62; judgment of the Court of Appeal, at para. 44).Finally, the respondent made submissions related to that provision at trial, maintaining [translation] “that he did not act in such a way asto interfere with the due course of justice or to impair the authority or dignity of the court” (judgment at trial, at para. 32).

With respectfor those who disagree, it is reasonable to say that the respondent knew he also had to answer allegations of contempt based on the finalportion of art. 50 para. 1 C.C.P. [89] Accordingly, having regard to all the circumstances, I am of the view that the respondent was given sufficientlyclear and specific not

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