Judgments

[1994] 3 F.C. 710

T-1539-92

Canadian Human Rights Commission (Applicant)

v.

The Heritage Front and Wolfgang Droege (Respondents)

Indexed as: Canada (Human Rights Commission) v. Heritage Front (T.D.)

Trial Division, Tremblay-Lamer J.—Toronto, March 15, 16, 17, 18, 21, 22, 23, 24, April 25, 26, 27, 28, 29 and June 2, 1994.

Practice — Contempt of court — Application to declare respondents guilty of contempt under R. 355 for breaching Court order — Respondents enjoined from operating hotline until ruling by CHRT on complaint — Defence that order unconstitutional unavailable as not appealed or challenged by respondents — Respect of court orders necessary to preserve integrity of justice system, maintain rule of law — Who can be convicted — Burden of proof — Knowledge and mens rea — Evidence beyond reasonable doubt respondents deliberately disobeyed Court order, thus in contempt of court.

Evidence — Credibility of witnesses at issue — Factors to be taken into account — Trial judge may exclude admissible evidence if prejudicial effect outweighs probative value — Party not entitled to introduce extrinsic evidence to contradict witness’s testimony in cross-examination related to collateral matter — Whether evidence substantial or collateral depending on relationship to central issue.

Constitutional law — Charter of Rights — Criminal process — Respondent unrepresented during contempt of court hearing, invoking right to counsel — Right restricted to situations of “arrest or detention” under Charter, s. 10(b) — Not sufficient that counsel absent due to “other business” — Incumbent upon counsel to ensure client represented if unable to appear — Adjournment denied.

This was an application to declare the respondents in contempt of court under Federal Court Rule 355 for breaching the order of Joyal J. dated October 8, 1993. Following a complaint that certain telephonic messages delivered via hotline by the respondents were likely to expose persons identifiable on the basis of their ethnic origin to hatred and contempt, the Canadian Human Rights Commission launched an investigation and thereafter, sought an order prohibiting those hotline messages until the conclusion of the Tribunal’s inquiry. A charge of contempt was laid against the respondents for breaching an order of the Associate Chief Justice enjoining them from using their hotline to communicate hate messages. Joyal J. dismissed the charge on the ground that the messages communicated through the Heritage Front Hotline were not substantially similar in form and content to those identified by the Associate Chief Justice in his order. However, he enjoined the respondents from operating their hotline until the Canadian Human Rights Tribunal has ruled on the complaint before it. Subsequently, the Commission alleged that the respondents deliberately and repeatedly disobeyed that order by playing messages of the kind described in it. The main issue was whether the respondents had violated the order granted by Joyal J.; there were also a number of incidental issues, namely the question of adjournment, the right to counsel and the introduction of collateral evidence to challenge testimony given in cross- examination.

Held, the application should be allowed.

Since the order granted by Joyal J. had not been appealed or otherwise challenged, respondents could not allege that it was unconstitutional as a defence to the charge of contempt. An order whose legitimacy has not been directly attacked and which has not been found to be void cannot be challenged collaterally in a contempt proceeding. The fundamental principle underlying the law of contempt is to ensure that the administration of justice is free from interference caused by improper conduct of any sort. Respect of court orders is necessary not to protect the sensibilities of the judiciary but rather to preserve the integrity of the justice system itself. Freedom of expression in a democratic society includes the right to criticize government as well as the right to be politically incorrect. However, it does not include the right to deliberately disobey a valid order of the Court which is not under attack. In order to maintain the rule of law, it is essential that respect for the authority of the courts be enforced. There was evidence beyond a reasonable doubt that the respondents, The Heritage Front and Wolfgang Droege, deliberately disobeyed the order of Joyal J. and were thus in contempt of court. A third party who knowingly aids and abetts a party to disobey an injunction may be convicted of contempt, not for breaching the injunction, but for interference with the course of justice. There was evidence beyond a reasonable doubt that Kenneth Barker and Gary Schipper interfered with the administration of justice by aiding and abetting Wolfgang Droege and were thus in contempt. In contempt proceedings, the law as to burden of proof, knowledge and mens rea is as follows: the accuser must prove that accused defied a court order in a public way (the actus reus), with intent, knowledge or recklessness that his disobedience will tend to depreciate the authority of the court (the mens rea). But the necessary mens rea may be inferred from the circumstances. An intent to bring the court into contempt is not essential. If it is clear that the accused must have known that his act of defiance will be public, it may be inferred that he was at least reckless as to whether the authority of the Court would be brought into contempt.

The principal factor that a judge is required to consider in exercising the discretionary power to grant adjournments in criminal or quasi-criminal proceedings is the need to ensure a fair trial. Conduct of an accused or of his solicitor which is dilatory or motivated by the desire to delay the proceedings tips the balance in favour of refusing an adjournment. This is one reason why the adjournment requested by counsel for respondents was refused. Moreover, a bare statement that they would be unable to attend due to “previous engagements” was not sufficient. The right to retain and instruct counsel, which has been explicitly enshrined in paragraph 10(b) of the Charter, is restricted to situations of “arrest or detention.” One of the respondents’ sudden and unjustified reversal with respect to representation demonstrated a desire to delay the proceedings and it was on this basis that his request was refused. It is incumbent upon a lawyer to ensure that someone will be on hand to represent his client should counsel be unable to appear.

This case turned on the credibility of witnesses and in assessing that the Court had to take into account the factors mentioned by Riddell J.A. in Wallace v. Davis. These included: honesty, opportunity and capacity for observation, memory, ability to resist modification of recollection due to influence of interest and ability to clearly express what the witness observed. The trial judge may exclude admissible evidence if its prejudicial effect outweighs its probative value. A party is not entitled to introduce extrinsic evidence to contradict the testimony of a witness given in cross-examination that relates to a collateral matter in the proceeding. The characterization of evidence as substantive or collateral depends on its relationship to the central issue being tried. The allegation of a pattern of fabrication on the part of the Commission’s witness related to the truthfulness of her testimony on the very issue at stake and was thus substantive in nature. The respondents were entitled to introduce relevant extrinsic evidence to challenge that allegation.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 10(b), 11(d).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 13(1), 49(1.1) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 66), 57.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 25, 44, 57.

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

CASES JUDICIALLY CONSIDERED

APPLIED:

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.); Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593; (1987), 37 D.L.R. (4th) 577; 9 C.H.R.R. D/4929; 29 C.R.R. 222; 78 N.R. 180 (C.A.); 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; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; (1992), 71 C.C.C. (3d) 225; 135 N.R. 321; R. v. Bridges (1989), 61 D.L.R. (4th) 154; 48 C.C.C. (3d) 545 (B.C.S.C.); Beloit Can. Ltée/Ltd. v. Valmet Oy (1988), 18 C.I.P.R. 1; 20 C.P.R. (3d) 1; 15 F.T.R. 240; 82 N.R. 235 (F.C.A.); B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; (1988), 71 Nfld. & P.E.I.R. 93; 53 D.L.R. (4th) 1; [1988] 6 W.W.R. 577; 220 A.P.R. 93; 31 B.C.L.R. (2d) 273; 44 C.C.C. (3d) 289; 88 CLLC 14,047; 44 C.C.C. (3d) 289; 87 N.R. 241; Barrette v. The Queen, [1977] 2 S.C.R. 121; (1976), 68 D.L.R. (3d) 260; 29 C.C.C. (2d) 189; 33 C.R.N.S. 377; 10 N.R. 321; Rex v. Irwing (1908), 18 O.L.R. 320; 14 C.C.C. 489 (C.A.); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; R. v. Hebert, [1990] 2 S.C.R. 151; [1990] 5 W.W.R. 1; 47 B.C.L.R. (2d) 1; 57 C.C.C. (3d) 1; 77 C.R. (3d) 145; 49 C.R.R. 114; 110 N.R. 1; R. v. Collins, [1987] 1 S.C.R. 265; (1987), 38 D.L.R. (4th) 508; [1987] 3 W.W.R. 699; 13 B.C.L.R. (2d) 1; 33 C.C.C. (3d) 1; 56 C.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 276; R. v. Simmons, [1988] 2 S.C.R. 495; (1988), 67 O.R. (2d) 63; 55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296; 66 C.R. (3d) 297; 89 N.R. 1; 30 O.A.C. 241; R. v. Lee, [1989] 2 S.C.R. 1384; [1990] 1 W.W.R. 289; (1989), 41 B.C.L.R. (2d) 273; 52 C.C.C. (3d) 289; 73 C.R. (3d) 257; 45 C.R.R. 80; 104 N.R. 1; R. v. Potvin, [1989] 1 S.C.R. 525; (1989), 21 Q.A.C. 258; 47 C.C.C. (3d) 289; 68 C.R. (3d) 193; 42 C.R.R. 44; 93 N.R. 42; Wallace v. Davis (1926), 31 O.W.N. 202 (C.A.).

REFERRED TO:

ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1974), 4 O.R. (2d) 585; 48 D.L.R. (3d) 641; 19 C.C.C. (2d) 218 (H.C.); Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217; (1990), 71 D.L.R. (4th) 84; 44 Admin. L.R. 1; 43 C.P.C. (2d) 213; 12 Imm. L.R. (2d) 81; 111 N.R. 185; R. v. Krause, [1986] 2 S.C.R. 466; (1986), 33 D.L.R. (4th) 267; [1987] 1 W.W.R. 97; 7 B.C.L.R. (2d) 273; 29 C.C.C. (3d) 385; 14 C.P.C. (2d) 156; 54 C.R. (3d) 294; 71 N.R. 61; Regina v. Cassibo (1982), 39 O.R. (2d) 288; 70 C.C.C. (2d) 498 (C.A.); Gen’l Films Ltd. v. McElroy, [1939] 4 D.L.R. 543; [1939] 3 W.W.R. 491 (Sask. C.A.).

APPLICATION to declare the respondents guilty of contempt of court under Rule 355 of the Federal Court Rules for breaching the order of Joyal J. ([1994] 1 F.C. 203 (T.D.)). Application allowed.

COUNSEL:

Eddie Taylor and René Duval for applicant.

Harry Doan for respondent Wolfgang Droege.

George A. Wootten, Q.C., for respondent Ken Barker.

Valerie Owen and John W. May for respondent Gary Schipper.

SOLICITORS:

Canadian Human Rights Commission, Ottawa, for applicant.

Harry Doan, Toronto, for respondent Wolfgang Droege.

George A. Wootten, Q.C., Etobicoke, Ontario, for respondent Ken Barker.

Valerie Owen, Toronto, and John W. May, Brampton, Ontario, for respondent Gary Schipper.

EDITOR’S NOTE

The Executive Editor has made a determination that these reasons for judgment should be published in an abridged format as authorized by Federal Court Act, subsection 58(2). Omitted from the report are some 13 pages in which Tremblay-Lamer J. sets out the undisputed evidence and then proceeds to assess the credibility of the witnesses whose evidence was in dispute.

The following are the reasons for judgment rendered in English by

Tremblay-Lamer J.: The respondents, in the persons of Wolfgang Droege, Gary Schipper and Kenneth Barker, appeared before me on a charge of contempt of court pursuant to Rule 355 of the Federal Court Rules [C.R.C., c. 663] for breaching the order of Joyal J., dated October 8, 1993 [[1994] 1 F.C. 203 (T.D.)].

I           THE FACTS

These proceedings have their origins in a complaint made by Rodney Bobiwash of the Native Canadian Centre of Toronto and filed with the Canadian Human Rights Commission alleging that certain telephonic messages delivered via hotline by the respondents were contrary to subsection 13(1) of the Canadian Human Rights Act.[1] The complainant alleged that these messages were likely to expose persons identifiable on the basis of their ethnic origin to hatred and contempt. The Commission launched an investigation and, on the basis of the evidence before it, appointed on May 26, 1992, pursuant to subsection 49(1.1) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 66] of the Act, a Tribunal to inquire fully into the matter.

Shortly thereafter, the Commission petitioned this Court for an order prohibiting the respondents from delivering further hotline messages in the nature of those complained of until the conclusion of the Tribunal’s inquiry. This application was heard by the Associate Chief Justice and, on consent of the parties, an order, dated September 29, 1992 and amended January 19, 1993, was granted. It forbade the respondents from conveying, by telephonic means, messages which promote hatred against persons because of their creed, colour or ethnic background until the Canadian Human Rights Tribunal had ruled on the complaint before it.

Subsequently, the Commission had reason to believe that the respondents were defying the Court’s order. It instituted proceedings against the respondents for contempt of court and the matter came on for trial before Joyal J. In his decision dated October 8, 1993 [[1994] 1 F.C. 203 (T.D.)], Joyal J. dismissed the charge on the ground that the messages communicated through the Heritage Front Hotline were not substantially similar in form and content to those identified by the Associate Chief Justice in his order.

Having concluded that the order facing the respondents was not fulfilling the purposes for which it was intended, Joyal J. proposed to amend it. Pursuant to the discretionary powers conferred upon him by section 44 of the Federal Court Act,[2] he drafted the following injunction:

The respondents, The Heritage Front and Wolfgang Droege, by themselves or by their servants or otherwise be enjoined from hereinafter operating what is commonly called a hot-line, i.e. a means of telephonic communication for the purposes of delivering on their behalf or on behalf of others any message which is directly or indirectly or inferentially of a nature to indicate or inform on the position of the said respondents “or of anyone else” on any issue of political, economic, racial, religious or social character.

The within Order shall operate until the Canadian Human Rights Tribunal has ruled with respect to File No. T-41854 and T-41855 or until otherwise varied or vacated by this Court.

Following the issuance of this order, the Commission alleged in a statement of particulars that between October 15, 1993 and November 8, 1993, Wolfgang Droege, the Heritage Front, Gary Schipper, Kenneth Barker and Equal Rights for Whites deliberately and repeatedly disobeyed the order by playing messages on the Equal Rights for Whites Hotline of the kind described by Joyal J.

On October 21, 1993, the Commission presented an ex parte motion requesting the issuance of a show cause order. This motion was granted and, following an adjournment on November 30, 1993, was made returnable before me on March 15, 1994 in Toronto, Ontario.

II          THE LAW

(1)       The Injunction of Joyal J.

The jurisdiction of the Federal Court to grant an injunction in the circumstances at bar was confirmed in Canada (Human Rights Commission) v. Canadian Liberty Net.[3] In his judgment, Muldoon J. concluded that, by virtue of sections 25 and 44 of the Federal Court Act and section 57 of the Canadian Human Rights Act, the prerequisites for jurisdiction outlined by the Supreme Court of Canada in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al.[4] were satisfied.[5]

It is important to point out that the order granted by Joyal J. which is the subject of these proceedings was not appealed or otherwise challenged by the respondents following its issuance. Consequently, they may not now allege that it is unconstitutional as a defence to the charge of contempt. Adopting the rationale of O’Leary J. in Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2),[6] Mahoney J. stated at page 601 in Canada (Canadian Human Rights Commission) v. Taylor[7] that:

The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.

Dickson C.J. in his judgment[8] was in complete agreement with this reasoning, re-emphasizing that an order whose legitimacy has not been directly attacked and which has not been found to be void cannot be challenged collaterally in a contempt proceeding. McLachlin J. (dissenting in part) enunciated the rule as follows at page 975:

The commission of the offence of contempt does not depend on the validity of the underlying law but on the existence of a court order made by a court having jurisdiction.

I should like to emphasize at this point that, contrary to the submission of counsel for the respondents, this is not a case involving the right to free speech or the right to be politically incorrect. The only question to be resolved in these proceedings is whether the respondents violated an order duly granted by this Court.

(2)       Contempt of Court Proceedings

(i)         Why it is important to obey an order of the Court?

The fundamental principle underlying the law of contempt is to ensure that the administration of justice is free from interference caused by improper conduct of any sort. The deliberate disobedience of a court order represents a defiance of judicial authority which depreciates and makes a mockery of our system of justice.

As McLachlin J. pointed out at page 931 in United Nurses of Alberta v. Alberta (Attorney General):[9]

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

In R. v. Bridges,[10] Wood J. rightly emphasized that respect for court orders is necessary not to protect the sensibilities of the judiciary but rather in order to preserve the integrity of the justice system itself. He stated at pages 157-158 that:

The breach of an order of this court is not a crime against the judge who issued it, it is an attack upon the institution itself—that institution which alone stands between the rule of law and anarchy. The inherent jurisdiction of this court to punish for contempt does not exist for the purpose of preserving judicial vanity. It is the sole device by which the court can ensure its own continued effectiveness in the struggle to preserve the rule of law. Thus it is that the more serious the contempt the more serious the threat to the rule of law.

(ii)        Who can be found guilty?

Rule 355(1) and (4) of the Federal Court Rules set out the following:

Rule 355. (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court of 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.

…

(4) No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a show cause order ordering him to appear before the Court, on the day and at the hour fixed to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have. The show cause order issued by the judge of his own motion or on application must be served personally, unless for valid reasons another mode of service is authorized. The application for the issuance of the show cause order may be presented without its being necessary to have it served.

In Beloit Can. Ltée/Ltd. v. Valmet Oy,[11] Pratte J.A. enunciated the following principles on the law of contempt at page 14:

(1) As Rule 355(1) of the Federal Court Rules makes it clear, a person may be guilty of contempt of court either by disobeying an order of the Court or by obstructing or interfering with the course of justice.

The only person who may disobey an order of a Court is the party to whom that order is addressed. However, a third party who knowingly aided and abetted a party to disobey an injunction may be found guilty of contempt, not because he breached the injunction, but, rather, because he acted in a manner that interfered with the course of justice.

…

(3) A court injunction must be complied with strictly in accordance to its terms. However, the defendant against whom an injunction is pronounced is enjoined from committing the prohibited acts whatever be the method he may use in committing them. It follows, that a defendant will be in breach of the injunction pronounced against him not only if he himself contravenes the order of the court but also if the order is breached by his agent, workman, servant or another person acting for him. [My emphasis.]

Marceau J. added at page 20 that:

1. Considering what has to be proved, it is well established that the activity said to have constituted the contempt must be one clearly covered by the prohibition, which implied that it be expressly or by necessary inference mentioned in the order. Because of this prerequisite, I do not think that the trial Judge was entitled to find, as he did, that the commission of a certain action, although not covered by the injunction, was nevertheless contemptuous as being contrary to the “spirit” thereof. [Underlining added.]

In the case at bar, the respondents Gary Schipper and Kenneth Barker were not named in the show cause order. However, it is clear from the judgment in Valmet Oy that a third party may be found guilty of contempt if he or she knowingly aided and abetted a party to disobey an injunction.

(iii)       Burden of Proof

As McLachlin J. stated at page 942 in United Nurses of Alberta, a “contempt proceeding is a criminal proceeding, and the full protections availing an accused on a criminal trial are available.” This is further confirmed by the fact that Rule 355(2) provides for a sanction that includes the possibility of imprisonment.

With respect to the burden of proof to be discharged in this context, McLachlin J. stated at page 933 that the accuser must:

… prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority of the court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. [Underlining added.]

(iv)       Knowledge and Mens Rea

In Bhatnager v. Canada (Minister of Employment and Immigration)[12] Sopinka J. stated at page 225 that “the common law has always required personal service or actual personal knowledge of a court order as a precondition to liability in contempt.” This is not an issue in the present case since Joyal J. read his order in open court in the presence of the three respondents.

With respect to the mens rea requirement, Dickson C.J. for the majority in B.C.G.E.U. v. British Columbia (Attorney General)[13] ruled [at page 234] that “[a]n intent to bring a court or judge into contempt is not an essential element of the offence”; knowledge is the proper prerequisite for liability.

III         ANALYSIS

(1)       Incidental Issues

During the course of the hearing, a number of issues arose both of a procedural and substantive nature. I will comment on three of these, namely the question of adjournment, the right to counsel and the introduction of collateral evidence in order to challenge testimony given in cross-examination.

(i)         Adjournment

By order of Rouleau J. dated November 30, 1993, the present show cause was adjourned peremptorily to March 15, 1994 and three days were set aside for the hearing. At the end of the second day, it became apparent that the period of time that had been allocated would prove insufficient. I raised this concern with counsel for both sides and indicated my intention to conclude the proceedings, if possible, the following week. Counsel for the respondents stated that they would be unable to attend due to “previous engagements” and requested an adjournment which I refused to grant.[14]

On the question of adjournments, Pigeon J. in Barrette v. The Queen[15] stated the following at page 125:

It is true that a decision on an application for adjournment is in the judge’s discretion. It is, however, a judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings.

Pigeon J. addressed the particular fact situation before him and came to the following conclusion at page 124:

There is nothing in the record which could legally support the presumption that counsel’s absence was a premeditated scheme in complicity with the accused. It was the first time the case was being called and there was nothing to justify such inference rather than mere suspicion. The accused has the right “to make full … defence personally or by counsel” (s. 577(3), Cr. C.). An adjournment necessary for the exercise of this right may be refused only for a reason based on established facts. [My emphasis.]

The principal factor that a judge is required to consider in exercising his or her discretionary power with respect to adjournments in criminal or quasi-criminal proceedings is the need to ensure a fair trial. However, concerns such as the general conduct of the accused or his/her solicitor, the efficiency of the proceedings and the general circumstances of the case should also be taken into account.

I recognize the obvious tension between the need for strictness in the face of last minute requests for adjournments in order to ensure the efficient flow of proceedings and the requirement for safeguarding the right of an accused, whose liberty is at stake, to present an adequate defence. In my opinion, however, and I agree with the decision of Meredith J.A. in Rex v. Irwing,[16] conduct of the accused and his or her solicitor which is dilatory or motivated by the desire to delay the proceedings tips the balance in favour of refusing an adjournment.

In Irwing, one of the grounds of appeal was that the magistrate had refused to adjourn the trial to enable the accused to procure counsel. The accused was subsequently charged, tried and convicted on the same day without proper representation. Meredith J.A. speaking for the Court said:

Obviously there must be cases in which such a refusal would be quite proper—for instance, if the application were made merely for delay—and so the matter is one quite within the jurisdiction of the Court or magistrate trying the case, a matter in the discretion of such Court or magistrate. [My emphasis.]

After considering the circumstances at bar, I exercised my discretion to refuse the adjournment for the following reasons. First, when the question was discussed before me, counsel for the respondents were unable to offer any compelling reason for their inability to attend or point to any significant threat to their clients’ rights. A bare statement by counsel that he or she has other commitments is not sufficient. Second, given the context, the safety of witnesses was a driving concern in favour of a speedy resolution of the hearing. Finally, the general conduct of counsel for the respondents evidenced an effort on their part, in my estimation, to cause delay and to interfere with the efficient conduct of the proceedings.

(ii)        Right to Counsel

Counsel for the respondent Mr. Barker failed to appear in Court when the hearing was reconvened the following week, stating that he had “other business” to attend to. At the outset of proceedings, counsel for Mr. Droege indicated that Mr. Barker’s counsel was not in attendance but that Mr. Barker would be representing himself for the day and would not be seeking an adjournment. On the basis of these statements, this Court continued the hearing. However, just as Mr. Barker was due to cross-examine Rodney Bobiwash, a witness appearing on behalf of the Commission, he invoked his constitutional right to counsel. I decided not to accede to this request and he proceeded with his questioning.

While the right to retain and instruct counsel has been explicitly enshrined in the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] pursuant to paragraph 10(b), this guarantee is restricted to situations of “arrest or detention.” Although the Charter does not in express terms provide for such a right at trial, it can be inferred from the provisions of section 7, which protects individuals from deprivations of their liberty not in accordance with the principles of fundamental justice, as well as paragraph 11(d), which guarantees a “fair and public hearing by an independent and impartial tribunal.”

With respect to the nature of the protection afforded by section 7, the oft-quoted statement by Lamer J. (as he then was) in Re B.C. Motor Vehicle Act[17] bears repeating. He stated at page 503 that:

… the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.

In R. v. Hebert,[18] McLachlin J. concluded at page 163 that these “basic tenets” include the common law confessions rule, the privilege against self-incrimination and the right to counsel.

With respect to the protection enshrined under paragraph 11(d), Lamer J. (as he then was) in R. v. Collins[19] commented at page 284:

The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter. [My emphasis.]

Since the fairness of a criminal hearing is predicated upon the opportunity of every accused to make a full and complete defense, this includes the right to be represented by counsel if the accused so desires. As Wilson J. explained in R. v. Simmons,[20] at page 546, the availability of legal assistance is crucial in preventing “the citizen from being overborne by the much greater power of the state.”

I would like to emphasize, however, that this right is not unlimited in its scope and application. Situations will arise in which the conduct of the accused or counsel for the accused is such that it can be said that the right to be represented has been implicitly waived.[21] In the circumstances at bar, I found that Mr. Barker’s sudden and unjustified reversal with respect to representation demonstrated a desire to delay the proceedings and it was on this basis that I refused his request.

As stated earlier, it is not sufficient for counsel to absent themselves merely because they have “other business” to attend to, thereby paralyzing the proceedings. In a show cause hearing involving several respondents, it is difficult to accommodate the schedules of all counsel involved, especially when a hearing extends beyond its anticipated length. It is therefore incumbent upon counsel to ensure that someone will be on hand to represent their client should they be unable to appear themselves.

However, upon careful consideration of the rights of the respondent Mr. Barker and the fact that he did, later in the day, object to appearing unrepresented, I have decided, in the interests of safeguarding the fairness of the proceedings, to give no weight to the oral testimony of Mr. Bobiwash, the only witness who was questioned. This is true with the exception, of course, of the fact itself that a message was left on Mr. Bobiwash’s machine. This is not contested by the respondents.

The discussion of La Forest J. in R. v. Potvin[22] [with regard to the scope of judicial discretion to exclude evidence is instructive in relation to my decision. He stated at pages 531-532 that:

… the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value; see R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 729-36; see also R. v. Tretter (1974), 18 C.C.C. (2d) 82. The case most frequently cited for the discretion to exclude is R. v. Wray, [1971] S.C.R. 272, where it is referred to in a dictum by Martland J. at pp. 292-93, but it is simply one of the fundamental postulates of the law of evidence. [My emphasis.]

The testimony of Mr. Bobiwash was offered to confirm the allegation that Mr. Schipper, a member of the Heritage Front, left a recorded message on Mr. Bobiwash’s answering machine implicating him in the activities of Mr. Barker and the Equal Rights for Whites Hotline. This message corroborates evidence given by Ms. Hategan, a witness called by the Commission, to the same effect.

In cross-examination, Mr. Bobiwash was questioned mainly about his activities and relationship with anti-racist movement. Since this does not have much probative value in relation to the present charge, I therefore find that the potential prejudicial effect of admitting his testimony, given the circumstances in which it was given, constitutes a sufficient basis upon which to exclude it.

(iii)       Motion to quash the subpoena of Sergeant Dolby, Investigating Officer with the Waterloo Regional Police Force

Counsel moved before me to quash the subpoena of Sergeant Dolby, who was the officer charged with investigating a firebombing of a Jewish woman’s home in Kitchener. His testimony was sought by the respondents to establish a pattern of fabrication on the part of Ms. Hategan in order to discredit the evidence she provided at this hearing. Counsel for the respondents submitted that Ms. Hategan was so biased and negatively predisposed toward their clients that she swore numerous affidavits alleging, among other things, that Mr. Droege and Mr. Barker conspired to set up a hotline under a different name to defeat the intent of Joyal J.’s injunction and that the Front was responsible for such destructive acts as the firebombing in Kitchener. As a result, they argued, it was necessary to introduce evidence to challenge the basis of Ms. Hategan’s allegations in order to draw the appropriate inferences regarding the weight to be given to her testimony.

In considering these submissions, I was aware of the well-known rule of evidence that a party is not entitled to introduce extrinsic evidence to contradict the testimony of a witness given in cross-examination that relates to a collateral matter in the proceeding.[23] However, as the judgment in Regina v. Cassibo[24] demonstrates, the characterization of evidence as substantive or collateral depends on its relationship to the central issue being tried. In that case, the accused was charged with incest. His daughters were asked in cross-examination whether they had read in magazines about fathers having sexual relations with their daughters and they testified that they had not. They were shown a magazine called True Experience containing a story entitled “My Daughter’s Lies Sent My Husband to Prison.” The daughters answered that they did not remember seeing it. The Trial Judge interjected, observing that, surely this was cross-examination with respect to a collateral matter. On appeal, Martin J.A. noted at page 295 that the cross-examination with respect to whether the daughters had read the article did not relate to a collateral matter. He stated further that [at page 295]:

The purpose of the cross-examination was to endeavour to show that they had fabricated their testimony with respect to their allegations against the appellant. The cross-examination accordingly did not relate to a collateral matter but related to the truthfulness of their testimony on the very issue before the Court.

In my opinion, the allegation of a pattern of fabrication on the part of Ms. Hategan related to the truthfulness of her testimony on the very issue at stake in this hearing and was thus substantive in nature. Consequently, the respondents were entitled to introduce relevant extrinsic evidence to challenge that allegation.

It was on this basis that I agreed to hear the evidence of Sergeant Dolby under reserve, contingent on a subsequent ruling with respect to its admissibility. I have since decided that it is admissible because it is relevant to the truthfulness of Ms. Hategan’s testimony on the central issue to be determined in this hearing.

(iv)       Motion to quash the subpoenas of Joy Malbon and Andrew Mitrovica

Later in the course of these proceedings, counsel also requested that I quash the subpoenas of Ms. Malbon and Mr. Mitrovica. The admissibility of their testimony was contested for the same reason that the subpoena of Sergeant Dolby was challenged, so I need not restate the arguments of counsel. The individuals in question were a reporter and a producer, respectively, for the CTV television network who, in the course of CTV news broadcasts which aired December 12 and 15, 1993, interviewed Ms. Hategan concerning her involvement with the Heritage Front.

After hearing the submissions of counsel in this instance, I was not satisfied that the testimony of Ms. Malbon and Mr. Mitrovica was relevant. The reason for this is the admission made by Ms. Hategan in cross-examination that she had no direct knowledge of the incident in Kitchener. She merely stated that, having had the depth of contact that she did with the Heritage Front, she felt that it could have been responsible. Given the fact that Ms. Hategan admitted before this Court that her implication of the Heritage Front in the incident was nothing more than an opinion, the testimony of the reporter and the producer with respect to what Ms. Hategan might have told them would be of no assistance in determining the material issues at stake.

Counsel for the respondents submitted that this evidence was useful in demonstrating bias on the part of Ms. Hategan, and therefore constituted an exception to the collateral fact rule. However, the introduction of evidence for such a purpose is contingent upon the denial of the witness that he or she is not biased or partial.[25] At no point was Ms. Hategan questioned about any negative predisposition she might have toward the respondents and, therefore, the requisite denial did not take place. Consequently, I ruled that the subpoenas represented an abuse of process and quashed them with costs.

IV        EVIDENCE AND DISCUSSION

This case essentially turns on credibility. In assessing the credibility of witnesses, a number of factors must be taken into account. As stated by Riddell J.A. in Wallace v. Davis:[26]

… the credibility of a witness in the proper sense does not depend solely upon his honesty in expressing his views. It depends also upon his opportunity for exact observation, his capacity to observe accurately, the firmness of his memory to carry in his mind the facts as observed, his ability to resist the influence, frequently unconscious, of interest to modify his recollection, his ability to reproduce in the witness-box the facts observed, the capacity to express clearly what is in his mind—all these are to be considered in determining what effect to give to the evidence of any witness.

Since the evidence given by the various witnesses over the course of this hearing was often conflicting and contradictory, it is useful to begin with a review of the facts which are undisputed and not controversial.

V         CONCLUSION

Freedom of expression in a democratic society includes the right to criticize government as well as the right to be politically incorrect. However, it does not include the right to deliberately disobey a valid order of the Court which is not under attack. In my opinion, to tolerate such action jeopardizes the very integrity of our Canadian judicial system upon which all citizens depend and to which all have a right. It is the duty of the courts to ensure that deference to their process is not undermined in any way. The rule of law must be maintained; in order to do so it is essential that respect for the authority of the courts is enforced. I have no sympathy for unscrupulous fanatics who deliberately attempt to subvert that authority.

After careful consideration of the testimony of witnesses as well as the documents submitted, I conclude that the evidence is beyond a reasonable doubt that the respondents, the Heritage Front and Wolfgang Droege, deliberately disobeyed the order of Joyal J. dated October 8, 1993 and are thus in contempt of this Court pursuant to Rule 355 of the Federal Court Rules. The evidence is also beyond a reasonable doubt that Kenneth Barker and Gary Schipper interfered with the administration of justice by aiding and abetting Wolfgang Droege and are thus in contempt of this Court.

Consequently, the respondents Wolfgang Droege, Gary Schipper and Kenneth Barker shall appear before me at a time and place stated in my order.

The application shall be allowed.

---