Raymond v. Brauer, 2013 NSSC 388

SUPREME COURT OF NOVA SCOTIA Citation: Raymond v. Brauer, 2013 NSSC 388 Date: 20131211 Docket: Ken No. 399386 Registry: Kentville Between: Paulette Raymond Plaintiff v. Connie Brauer and Victor Harris Defendants Judge: The Honourable Justice Michael J. Wood Heard: November 19, 2013, in Kentville, Nova Scotia Written Decision: December 11, 2013 Counsel: Paulette Raymond, self-represented plaintiff Connie Brauer, self-represented defendant Victor Harris, self-represented defendant By the Court :

[ 1 ] The plaintiff, Paulette Raymond, seeks an order of civil contempt against the defendant, Connie Brauer. This is an exceptional remedy that is only granted where certain stringent requirements have been met. In this case, the argument advanced by Ms. Raymond is that Ms. Brauer has allegedly disobeyed an order of this Court. [ 2 ] The nature of the Court’s civil contempt jurisdiction was recently considered by the Nova Scotia Court of Appeal in Godin v. Godin , 2012 NSCA 54 . Mr.

Justice Saunders, writing for the Court, said as follows at para. 70: I fully appreciate the significance of the contempt power in a trial judge’s arsenal as a ready means to maintain respect for the rule of law and to dispense even-handed justice to all parties. Nonetheless, it is a blunt instrument only to be wielded sparingly, in circumstances where no other sanction will do. Its penal consequences require a strict application of proper procedures. This critical balance is aptly described by Melissa N.

MacKovski in Administering Justice: The Law of Civil Contempt , [2009] Annual Review of Civil Litigation 80: ... civil contempt may attract severe consequences. Court orders are meant to be followed and breaches in a civil context may result in criminal penalties. The contempt power remains an important tool in ensuring compliance with court orders which is fundamental to the rule of law and the fair and proper administration of justice.

Without the ability to sanction for contempt, the dignity of the court and the integrity of the justice system are threatened. ... the use of the contempt power should be tempered and reserved for those cases where the breach is both serious and beyond a reasonable doubt. Otherwise the power itself risks being diluted. ... [ 3 ] At para. 47 of the Godin decision, Justice Saunders set out certain principles that he described as fundamental.

These are as follows: 1. finding a party in contempt fails within a trial judge’s discretion; 2. on appeal, the standard of review applied to the exercise of that discretion is one of reasonableness; 3. we are not to substitute our own view for the judge’s discretion unless we conclude that the judge erred in law; misapprehended material evidence; or produced a result which is obviously unjust; 4. notwithstanding its civil nature, contempt of court is quasi-criminal; 5. the standard of proof in contempt proceedings is proof beyond a reasonable doubt; 6. the party alleging contempt has the burden of proof; 7. in a case of civil contempt the following elements must be established beyond a reasonable doubt: (

i) the terms of the order must be clear and unambiguous; (ii) proper notice must be given to the contemnor of the terms of the order; (iii) there must be clear proof that the contemnor intentionally committed

an act which is in fact prohibited by the terms of the order, and (iv) mens rea must be proven which, in the context of civil contempt proceedings, means that while it is not necessary to prove a specific intent to bring the court into disrepute, flout a court order, or interfere with the due course of justice, it is essential to prove an intention to knowingly and wilfully do some act which is contrary to a court order.

[ 4 ] For purposes of this decision, I must consider whether Ms. Raymond has proven, on evidence, the four elements set out in Justice Saunder’s 7 th principle beyond a reasonable doubt. If she has not, then the motion for an order of contempt must be dismissed. [ 5 ] The order relied upon by Ms. Raymond was granted by the Honourable Justice John D. Murphy on November 7, 2012.

The operative provision of the order states as follows: IT IS HEREBY ORDERED THAT until further Court Order or conclusion of this proceeding, Connie Brauer and Victor Harris are prohibited and restrained from broadcasting, disseminating, posting on the Internet, distributing or publishing in any manner whatsoever, directly or indirectly, any statements, depictions, descriptions, opinions and commentary, which reference by name or innuendo Paulette Raymond . [ 6 ] The evidence which was filed in support of the contempt motion by Ms.

Raymond consisted of her affidavit of October 3, 2013 and two affidavits of October 10, 2013, one of which was in electronic form. Ms. Brauer filed an affidavit of October 17, 2013 in response. There was no cross-examination on the affidavits and no witness testimony at the hearing. [ 7 ] The evidence relied upon by Ms. Raymond included screen shots of websites, YouTube videos posted by Ms. Bauer and comments made by Ms. Brauer on Twitter. She says that this evidence shows that since the date of the injunction in November, 2012, Ms.

Bauer has created hyperlinks to websites where there are postings that refer to her by name. Based upon my review, all of the postings which identify Ms. Raymond by name were prepared prior to the date of the injunction. [ 8 ] Ms. Raymond also says that the YouTube videos which were created and posted after the date of the injunction refer to her either explicitly or by innuendo and are, therefore, in violation of the court order. I have listened to all of the videos which were posted after the date of the injunction and none mention Ms. Raymond by name. Most contain criticism by Ms.

Brauer of the Nova Scotia judicial system and claim that the order issued by Justice Murphy is unconstitutional as it contravenes the Canadian Charter of Rights and Freedoms . In those videos, Ms. Brauer expressly says that she is prevented from commenting on this litigation by the allegedly unconstitutional interim injunction. I do not believe that any of these comments represent a contravention of the November 7, 2012 court order. [ 9 ] Based upon the evidence filed, I am not satisfied that Ms. Raymond has proven beyond a reasonable doubt that there have been any new internet postings which refer to Ms.

Raymond either by name or innuendo. Ms. Brauer acknowledges that she has not taken down or made inaccessible information which does refer to Ms. Raymond that was posted prior to November 7, 2012. Ms. Raymond argues that Ms. Brauer has created new hyperlinks which causes the old material to be made current so that it shows up in various internet searches. Despite making this assertion, Ms. Raymond provided no evidence to show that such hyperlinks exist.

In all likelihood, this would have required technical opinion evidence as it is not readily apparent from the materials which she filed with the Court. [ 10 ] Having concluded that Ms. Raymond has not provided clear proof of new postings after November 7, 2012 which refer to her, the remaining issue is whether the failure to take down or remove earlier postings represents a violation of the Court order.

Applying the principles related to contempt of court, the first step in the analysis is to determine whether the order was “clear and unambiguous” in requiring such steps. [ 11 ] The language of Justice Murphy’s order appears directed to future conduct. The introductory phrase says the order applies “until further Court Order or conclusion of this proceeding”. There is no express provision that says historic postings must be removed.

In the absence of such a provision, I cannot conclude that the order clearly and unambiguously required this to be done. [ 12 ] As a result of the above conclusions, I must dismiss Ms. Raymond’s application for an order of contempt against Ms. Brauer. A dismissal order will be issued by the Court and sent to the parties in due course.

__________________________________ Wood, J.