British Columbia Government Employees' Union v. British Columbia (Attorney General), (1988) 71 Nfld. & P.E.I.R. 93 (SCC)

• Judge: Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 03, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 71 Nfld. & P.E.I.R. 93 (SCC);[1988] 2 SCR 214;71 Nfld & PEIR 93;[1988] ACS no 76;[1988] 6 WWR 577;30 CPC (2d) 221;JE 88-1256;88 DTC 14;50 CRR 397;53 DLR (4th) 1;[1988] SCJ No 76 (QL);87 NR 241;44 CCC (3d) 289;31 BCLR (2d) 273;1988 CanLII 3 (SCC);220 APR 93

BCGEU v. B.C. (A.G.) (1988), 71 Nfld. & P.E.I.R. 93 (SCC);

    220 A.P.R. 93

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The British Columbia Government Employees' Union (appellant) v. The Attorney General of British Columbia (respondent) and the Attorney General of Canada (intervenor)

(No. 19518)

Indexed As: British Columbia Government Employees' Union v. British Columbia (Attorney General)

Supreme Court of Canada

Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ.

October 20, 1988.

Summary:

The British Columbia Government Employees' Union was involved in a strike. The union decided to picket the courts in British Columbia with the hope that the picket lines would be honoured by all persons entering the courts. The Chief Justice of the British Columbia Supreme Court (McEachern, C.J.S.C.), felt he had a constitutional duty to keep the courts open. On his own motion and ex parte he issued an injunction restraining picketing of the British Columbia courts. See [1983] 6 W.W.R. 640. The order was served on the picketers shortly thereafter and was universally obeyed. The union applied under the terms of the injunction to have the injunction set aside.

The British Columbia Supreme Court, per McEachern, C.J.S.C., dismissed the motion. See [1984] 1 W.W.R. 399; 48 B.C.L.R. 5; 2 D.L.R.(4th) 705; 40 C.P.C. 116. The union appealed.

The British Columbia Court of Appeal dismissed the appeal. See (1985), 20 D.L.R.(4th) 399. The union appealed again.

The Supreme Court of Canada dismissed the appeal and affirmed that the injunction was properly issued.

Editor's Note: Please note that this case, originating in British Columbia, is being reported in the Nfld. & P.E.I. reports as well as the National Reporter to provide all readers with the complete reasons for judgment in the Newfoundland and Chafe v. Public Employees' Association (Nfld.) case, which is reported in 87 N.R. 288.

Civil Rights - Topic 652

Liberty - Limitations on - Picketing - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction restraining the picketing - The Supreme Court of Canada held that even if the injunction violated the union members' right to liberty, the order was not contrary to s. 7 of the Charter, because the denial of the right, if any, was fully in accordance with the principles of fundamental justice - See paragraphs 60, 61.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction restraining the picketing - The Supreme Court of Canada stated that "while the injunction limited the s. 2(b) Charter rights of the members of the union, that limitation was wholly proportional to the objective of the order, namely to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected" - Thus the injunction was a reasonable limit pursuant to s. 1 of the Charter - See paragraphs 57 to 59, 67 to 72 - McIntyre, J., disagreed that the injunction infringed any Charter protected right and would have found it unnecessary to refer to s. 1 of the Charter - See paragraphs 74 to 78.

Civil Rights - Topic 3109

Trials - Due process - Fundamental justice and fair hearings - General principles - Ex parte orders - The Supreme Court of Canada stated that "an injunction plainly does not violate s. 7 of the Charter solely because it was granted ex parte" - See paragraph 61.

Civil Rights - Topic 3135

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to independent and impartial tribunal - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction to restrain the picketing - The union argued that its rights under s. 11(d) of the Charter (presumption of innocence and right to a fair hearing) were violated - The Supreme Court of Canada held that no s. 11 rights were violated where no one was charged and no penal sanctions imposed - The court noted further that s. 11 (d) was inapplicable because no finding of guilt was made and the very purpose of the judge's order was to protect the rights of those awaiting court appearances to hearings before fair and independent tribunals - See paragraphs 52 to 66.

Civil Rights - Topic 3136

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be informed of alleged offence - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction to restrain the picketing - The union argued that its right under s. 11(a) of the Charter to be informed of the charges against it were violated - The Supreme Court of Canada held that no s. 11 rights were violated where no one was charged and no penal sanctions imposed - The court opined that had fines and jail sentences been imposed ex parte then a violation of s. 11(a) might have arisen - See paragraphs 62 to 66.

Civil Rights - Topic 4905

Presumption of innocence - When applicable - [See Civil Rights - Topic 3135 above].

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - Section 11 - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction to restrain the picketing - The union argued that its right to be informed of charges against it (Charter, s. 11 (a)) and the presumption of innocence and right to a fair hearing (Charter, s. 11(d)) were violated - The Supreme Court of Canada held that no s. 11 rights were violated where no one was charged and no penal sanctions imposed - The court opined that had fines and jail sentences been imposed ex parte then a violation of s. 11(a) might have arisen - The court noted further that s. 11(d) was inapplicable because no finding of guilt was made and the very purpose of the order was to protect the rights of those awaiting court appearances to hearings before fair and independent tribunals - See paragraphs 62 to 66.

Civil Rights - Topic 8306.1

Canadian Charter of Rights and Freedoms - Common law - A government employees' union was involved in a strike and picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction to restrain the picketing - The Supreme Court of Canada held that the judge's order was subject to Charter scrutiny - The court noted that what was at issue was the "validity of a common law breach of criminal law and ultimately the authority of the court to punish for breaches of that law. The court is acting on its own motion and not at the instance of any private party. The motivation for the court's action is entirely 'public' in nature, rather than 'private' ..." - See paragraph 56.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - Right of access to courts - The Supreme Court of Canada stated that "the rule of law is the very foundation of the Charter" - See paragraph 24 - The court continued that "there cannot be a rule of law without access [to the courts], otherwise the rule of law is replaced by the rule of men and women who decide who shall and who shall not have access to justice" - See paragraph 25 - The court agreed that "the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens" - See paragraph 26.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - Right of access to courts - The Supreme Court of Canada held that picketing of a courthouse would impede access to the courts and could only lead to interference with the legal and constitutional rights of citizens - See paragraphs 27 to 31.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - Right of access to courts - The Supreme Court of Canada affirmed that the picketing of courthouses in the Province of British Columbia by a striking union of government employees' constituted a criminal contempt which could be enjoined by the Chief Justice of the British Columbia Supreme Court - See paragraphs 32 to 41.

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See Civil Rights - Topic 1850 above].

Civil Rights - Topic 8552

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Rule of law - Preamble - [See first Civil Rights - Topic 8310 above].

Constitutional Law - Topic 6443

Federal jurisdiction - Constitution Act, 1867, s. 91(27) - Criminal law - Matters criminal in nature - A government employees' union involved in a strike picketed courthouses in British Columbia - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction restraining the picketing on the basis that the court had authority to prevent criminal contempt - The Supreme Court of Canada affirmed that the judge had jurisdiction to issue the injunction - The court agreed that the fact that the order was issued in relation to a criminal contempt brought it within the federal jurisdiction under head 91(27) of the Constitution Act, 1867, relating to criminal law and procedure - See paragraph 52.

Constitutional Law - Topic 7289

Provincial jurisdiction - Constitution Act, 1867, s. 92(13) - Property and civil rights - Regulatory statutes - Labour relations - The Supreme Court of Canada agreed that control of labour relations of provincial court employees is prima facie within provincial legislative jurisdiction - See paragraph 52 - The court held however that the British Columbia Labour Code covered picketing from the aspect of labour relations only, but the courts retained full authority to deal with violations of civil and criminal law arising from picketing - The court stated that "although lawful for labour relations purposes, picketing which restricts access to the courts is not relieved as being classified as criminal under the law of contempt" - See paragraphs 47 to 51.

Contempt - Topic 6

General - Power of courts - [See Constitutional Law - Topic 7289 above].

Contempt - Topic 41

Contempt - Elements of - General - The Supreme Court of Canada stated that "an intent to bring a court or judge into contempt is not an essential element of the offence of contempt of court" - See paragraph 36.

Contempt - Topic 510

Contempt - What constitutes - Criminal contempt - [See Constitutional Law - Topic 7289 above].

Contempt - Topic 510

Contempt - What constitutes - Criminal contempt - The Supreme Court of Canada discussed the concept of criminal contempt - See paragraphs 32 to 41.

Contempt - Topic 510

Contempt - What constitutes - Criminal contempt - The Supreme Court of Canada stated that "acts which interfere with persons having duties to discharge in a court of justice, including parties, witnesses, jurors and officers of the court, constitute a contempt" - See paragraph 39 - The court stated further that "conduct designed to interfere with the proper administration of justice constitutes contempt of court which is said to be 'criminal' in that it transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole" - See paragraph 41.

Contempt - Topic 510

Contempt - What constitutes - Criminal contempt - [See third Civil Rights - Topic 8310 above].

Courts - Topic 560

Judges - Powers - To act ex mero motu (on his own motion) - The Supreme Court of Canada referred to case law which held that in certain cases the court may act ex mero motu [of his own mere motion or voluntarily and without prompting or request] - See paragraphs 42, 43.

Courts - Topic 565

Judges - Powers - To issue ex parte orders - The Supreme Court of Canada stated that there is ample authority for the issuance of ex parte injunctions in those situations where the delay necessary to give notice to the party sought to be enjoined will entail the irreparable loss of rights - See paragraphs 44, 61.

Courts - Topic 596

Judges - Duties - To see that courts continue to function - A government employees' union in British Columbia was on strike and picketed British Columbia courthouses - The Chief Justice of the British Columbia Supreme Court on his own motion and ex parte issued an injunction restraining the picketing - The Supreme Court of Canada held that "as Chief Justice he had the legal and constitutional right and duty to ensure that the courts of the province would continue to function. His action went no further than that which was necessary to ensure respect for that most important principle" - See paragraphs 42 to 46, 73.

Courts - Topic 1403

Administration - General - Access to courts - [See first Civil Rights - Topic 8310 above].

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - To defend its own authority - The Supreme Court of Canada stated that "it is well established that the courts have jurisdiction to defend their own authority. This jurisdiction is inherent in the very idea of a court" - See paragraph 49.

Injunctions - Topic 1101

Ex parte injunctions - General - [See Courts - Topic 565 above].

Labour Law - Topic 8162

Industrial relations - Picketing - Right to - Courthouses - [See third Civil Rights - Topic 8310].

Labour Law - Topic 8205

Industrial relations - Picketing - Regulation of - Provincial legislation - Application of - [See Constitutional Law - Topic 7289 above].

Cases Noticed:

Johnson, Re (1887), 20 Q.B.D. 68 (C.A.), refd to. [para. 10].

Golder v. United Kingdom (1975), 1 E.H.R.R. 524, refd to. [paras. 24, 39].

Harrison v. Carswell, [1976] 2 S.C.R. 200; 5 N.R. 523, refd to. [para. 27].

Heather Hill Appliances Ltd. v. McCormack, [1966] 1 O.R. 12 (Ont. H.C.), refd to. [para. 29].

Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), refd to. [paras. 34, 71].

R. v. Hill (1976), 73 D.L.R.(3d) 621 (B.C.C.A.), refd to. [para. 36].

Ex Parte Tubman; Re Lucas, [1970] 3 N.S.W.R. 41 (N.S.W.C.A.), refd to. [para. 38].

R. v. Froese (1980), 23 B.C.L.R. 181 (B.C.C.A.), refd to. [para. 36].

Attorney General v. Times Newspapers Ltd., [1974] A.C. 273 (H.L.), refd to. [para. 39].

R. v. Davies, [1906] 1 K.B. 32, refd to. [para. 40].

Poje v. Attorney General for British Columbia, [1953] S.C.R. 516, refd to. [paras. 41, 42].

Foothills Provincial General Hospital Board v. Broad (1975), 57 D.L.R.(3d) 758 (Alta. S.C.), refd to. [para. 42].

Churchman v. Joint Shop Stewards' Committee of the Workers of the Port of London, [1972] 3 All E.R. 603 (C.A.), refd to. [para. 42].

Con-Mech (Engineers) Ltd. v. Amalgamated Union of Engineering Workers, [1973] I.C.R. 620, refd to. [para. 42].

R. v. United Fishermen and Allied Workers' Union (1967), 63 D.L.R.(2d) 356 (B.C.C.A.), refd to. [para. 42].

Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283 (C.A.), refd to. [paras. 43, 45].

McKeown v. R., [1971] S.C.R. 446, refd to. [para. 45].

Better Value Furniture (CHWK) Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1981), 26 B.C.L.R. 273 (B.C.C.A.), refd to. [paras. 50, 51].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; [1987] 1 W.W.R. 577, appld. [paras. 56, 57, 58, 77].

Attorney General of Quebec v. Laurendeau (1982), 145 D.L.R.(3d) 526 (Que. S.C.), refd to. [para. 63].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, appld. [para. 68].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R. (4th) 200; 50 C.R.(3d) 1; 24 C.C.C. (3d) 321; 19 C.R.R. 308, appld. [para. 68].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, preamble [para. 24]; sect. 2(b) [paras. 22, 55, 57]; sect. 2(c) [paras. 22, 55]; sect. 7 [paras. 55, 60]; sect. 11(a), sect. 11(d) [para. 55].

Constitution Act, 1982, sect. 52(1) [para. 24].

Labour Code, R.S.B.C. 1979, c. 212 [para. 47].

Authors and Works Noticed:

Borrie and Lowe, Law of Contempt (2nd Ed. 1973), p. 229 [para. 39].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 27, 28 [para. 49].

Jowitt's Dictionary of English Law (2nd Ed. 1977), p. 441 [para. 35].

McRuer, J.C., Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual (1952), 30 Can. Bar Rev. 225, p. 226 [para. 33].

Miller, C.J., Contempt of Court (1976), generally [para. 37]; p. 229 [para. 39].

Weiler, Paul, Reconcilable Differences (1980), p. 79 [para. 30].

Counsel:

David Blair, for the appellant;

Jack Giles, Q.C., for the respondent;

Graham Garton, Q.C., and David Stephens, for the intervenor the Attorney General of Canada.

Solicitors of Record:

Baigent, Jackson, Blair, Vancouver, British Columbia, for the appellant;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the respondent;

F. Iacobucci, Ottawa, Ontario, for the intervenor.

This appeal was heard on March 3, 1988, before Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was rendered in both official languages on October 20, 1988, including the following opinions:

Dickson, C.J.C. (Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ., concurring) - see paragraphs 1 to 73;

McIntyre, J. - see paragraphs 74 to 78.

Estey, J., took no part in the judgment.