R. v. Kopyto, (1987) 24 O.A.C. 81 (CA)

• Judge: Brooke, Dubin, Houlden, Goodman and Cory, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 27, 1987
• Jurisdiction: Ontario
• Citations: (1987), 24 O.A.C. 81 (CA)

R. v. Kopyto (1987), 24 O.A.C. 81 (CA)

MLB headnote and full text

R. (respondent) v. Harry Kopyto (appellant) and Criminal Lawyers' Association (intervenant)

Indexed As: R. v. Kopyto

Ontario Court of Appeal

Brooke, Dubin, Houlden, Goodman and Cory, JJ.A.

November 27, 1987.

Summary:

An action against R.C.M.P. officers was dismissed for failing to commence the action within the statutory limitation period. The action was one of many concerning alleged wrongdoing by the R.C.M.P. The unsuccessful plaintiff's lawyer made the following published comments after completion of the case: "This decision is a mockery of justice. It stinks to high hell. It says it is okay to break the law and you are immune so long as someone above you said to do it. Mr. Dowson and I have lost faith in the judicial system to render justice. We're wondering what is the point of appealing and continuing this charade of the courts in the country which are warped in favour of protecting the police. The courts and the R.C.M.P. are sticking so close together you'd think they were put together with Krazy Glue". The lawyer was convicted of contempt by scandalizing the court, a common law criminal offence preserved by s. 8 of the Criminal Code. The trial judge ruled that the offence of contempt by scandalizing the court was not protected by the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms. Alternatively, if the offence did violate s. 2(b), it was a reasonable limit prescribed by law under s. 1 of the Charter. The lawyer appealed.

The Ontario Court of Appeal, Dubin and Brooke, JJ.A., dissenting in part, allowed the appeal, set aside the conviction and directed an acquittal.

Cory, Goodman and Houlden, JJ.A., all held that contempt by scandalizing the court, as the offence now stood, was contrary to the right to freedom of expression; that the offence was not a reasonable limit prescribed by law under s. 1 of the Charter, because it failed the proportionality test.

Dubin, J.A. (Brooke, J.A., concurring), held that contempt by scandalizing the court was not protected by s. 2(b); that the appeal should be allowed and the conviction set aside solely on the ground that the Crown failed to prove the elements of the offence.

Civil Rights - Topic 1803

Freedom of expression - Scope of - The Ontario Court of Appeal stated that it was difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression - Democracy cannot exist without the freedom to express new ideas and put forward opinions about the functioning of public institutions, including the courts - So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expression of ideas - Rights entrenched in s. 2(b) of the Charter should only be restricted in the clearest of circumstances - See paragraphs 30 to 31.

Civil Rights - Topic 1860.4

Freedom of expression - Limitations on - Contempt of court - A lawyer was convicted of contempt by scandalizing the court after certain critical out-of-court statements were published following the dismissal of his client's action - The Ontario Court of Appeal held that subject to the effect of the Charter of Rights and Freedoms the statements constituted contempt - However, the court held that such statements were protected by the freedom of expression in s. 2(b) of the Charter, therefore contempt by scandalizing the court was unconstitutional - The court stated that statements of a sincerely held belief on a matter of public interest, even if intemperately worded, so long as they were not obscene or criminally libellous should as a general rule come within the protection of s. 2(b).

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Ontario Court of Appeal stated that whether a limitation on a Charter right was a reasonable limit prescribed by law was dependent upon a two part test - First, the objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom - Second, the means chosen must be reasonable and demonstrably justified (i.e. proportionality) - The court stated that the proportionality test was satisfied where (1) the means chosen were not arbitrary, unfair or based on irrational considerations, (2) the means chosen impaired as little as possible on the right or freedom in question, and (3) there was proportionality between the effects of the means chosen and the objective.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Section 8 of the Criminal Code preserved the common law offence of contempt - A lawyer who made certain comments out-of-court following the dismissal of his client's action was convicted of contempt by scandalizing the court - The Ontario Court of Appeal held that such statements were now protected by the freedom of expression under s. 2(b) of the Charter - The court held that the offence of contempt by scandalizing was not a reasonable limit on the right to freedom of expression - The court held that to the extent that the offence merely required proof that a statement was calculated to bring the court into contempt or to lower its authority, the offence did not meet the proportionality test.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Ontario Court of Appeal, in determining whether a limitation on the right to freedom of expression was a reasonable limit prescribed by law, relied extensively on jurisprudence from the United States, England, Australia, New Zealand and the European Court of Human Rights.

Civil Rights - Topic 8470

Canadian Charter of Rights and Freedoms - Interpretation - International law - [See Civil Rights - Topic 8469 above].

Civil Rights - Topic 8473

Canadian Charter of Rights and Freedoms - Interpretation - Precedent - Pre-Charter - The Ontario Court of Appeal stated that rights granted by the Charter were not frozen at the moment of its enactment; the Charter did more than recognize and declare pre-existing rights - The rights and freedoms contained in the Charter must be ascertained without undue reliance on the pre-Charter view of the rights and freedoms.

Contempt - Topic 515

What constitutes - Contempt in face of the court - The Ontario Court of Appeal defined contempt in the face of the court as "any word spoken or act done in or in the precinct of the court which obstructs or interferes with the due administration of justice or is calculated to do so. It would include assaults committed in the court, insults to the court made in the presence of the court, interruption of court proceedings, a refusal of a witness to be sworn or, after being sworn, refusal to answer".

Contempt - Topic 516

What constitutes - Contempt outside court - The Ontario Court of Appeal defined contempt out of court as "words spoken or published or acts done which are intended to interfere or are likely to interfere with the fair administration of justice. Examples of that type of contempt are publications which are intended or are likely to prejudice the fair trial or conduct of a criminal or civil proceeding or publications which scandalize or otherwise lower the authority of the court, and acts which would obstruct persons having duties to discharge in a court of justice".

Contempt - Topic 516

What constitutes - Contempt outside court - By scandalizing the court - The Ontario Court of Appeal, by a majority of three to two, held that the common law offence of contempt by scandalizing the court, as preserved by s. 8 of the Criminal Code, was contrary to the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms - The court held that the offence, as it now stood, was not a reasonable limit prescribed by law and was therefore unconstitutional - Two of the three majority judges stated that there was still room for the offence to be constitutionally valid if modified to meet the requirements of the Charter.

Contempt - Topic 2642

Defences - Truth - The common law offence of contempt by scandalizing the court was found to violate the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms - A majority of the Ontario Court of Appeal (one of three majority judges and both dissenting judges) opined that if the offence were constitutionally valid that the truth of the contemptuous statement would provide a defence to the change.

Cases Noticed:

R. v. Cohn (1984), 4 O.A.C. 293; 15 C.C.C.(3d) 150 (C.A.), refd to. [paras. 13, 82, 119, 160].

R. v. Gray, [1900] 2 Q.B. 86, refd to. [paras. 14-16, 22, 68, 102-106, 108, 136, 138, 144, 188, 190, 200].

R. v. Duncan, [1958] S.C.R. 41, refd to. [paras. 15, 105, 189, 208, 227].

R. v. Glanzer, [1963] 1 C.C.C. 364 (Ont. C.A.), refd to. [paras. 16, 106, 107, 191, 200].

Bridges v. State of California (1941), 62 S. Ct. 190, refd to. [paras. 19, 46, 104, 128, 129, 231].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321, refd to. [para. 23].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 18 C.C.C.(3d) 481, refd to. [para. 24].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161, refd to. [para. 25].

R. v. Oakes (1986), 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 24 C.C.C.(3d) 321 (S.C.C.), refd to. [paras. 27, 28, 39, 77, 120, 121, 149, 154].

Re Ontario Film & Video Appreciation Society and Ontario Board of Censors (1984), 2 O.A.C. 388; 45 O.R.(2d) 80 (C.A.), affing (1983), 41 O.R.(2d) 583 (Div. Ct.), refd to. [para. 29].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [paras. 34, 117, 124, 178].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), refd to. [paras. 35, 36, 38, 39, 116, 215, 220, 233].

Garrison v. State of Louisiana (1964), 379 U.S. 64, refd to. [paras. 37, 63].

Schenk v. United States, 39 S. Ct. 247, refd to. [paras. 47-50].

Pennekamp v. State of Florida (1946), 66 S. Ct. 1029, refd to. [paras. 51-55, 129, 153, 234].

Craig v. Harney (1947), 67 S. Ct. 1249, refd to. [paras. 56-59, 153].

Wood v. Georgia (1962), 82 S. Ct. 1364, refd to. [paras. 60-62].

Gallagher v. Durack (1983), 45 A.L.R. 53, refd to. [paras. 65, 104, 182, 184, 237, 248].

Solicitor General v. Radio Avon Ltd., [1978] 1 N.Z.L.R. 225, refd to. [paras. 66, 104, 126, 127, 186, 226, 233].

Attorney General v. Times Newspaper Ltd., [1973] 3 All E.R. 54 (H.L.), refd to. [paras. 68, 124, 130, 210].

The Sunday Times v. The United Kingdom (1979), 2 E.H.R.R. 245, refd to. [paras. 69-72, 130, 230].

Attorney General v. Times Newspaper Ltd., [1973] 1 All E.R. 815 (C.A.), refd to. [para. 79].

McLeod v. St. Aubyn, [1899] A.C. 549 (P.C.), refd to. [paras. 101, 106, 132].

Re Duncan, [1958] S.C.R. 41, refd to. [para. 105].

R. v. Glanzer et al., [1963] 1 C.C.C. 364 (Ont. H.C.), refd to. [para. 106].

R. v. Murphy (1969), 1 N.B.R.(2d) 297; 4 D.L.R.(3d) 289 (C.A.), refd to. [para. 107].

Re Borowski (1971), 3 C.C.C.(2d) 402 (Man. Q.B.), refd to. [para. 107].

Re Ouellet (Nos. 1 and 2) (1976), 32 C.C.C.(2d) 149 (Que. C.A.), refd to. [paras. 107, 108, 170, 203].

R. v. Editor of the New Statesman - Ex parte Director of Public of Prosecutions (1928), 44 T.L.R. 301 (K.B.), refd to. [para. 108].

R. v. Clement, [1981] 2 S.C.R. 468; 38 N.R. 302, refd to. [para. 109].

R. v. Vermette (1987), 74 N.R. 221; 32 C.C.C.(3d) 519 (S.C.C.), refd to. [para. 109].

Ambard v. Attorney General for Trinidad and Tobago, [1936] A.G. 322, refd to. [paras. 138, 166].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 154].

Boucher v. The King (1951), 99 C.C.C. 1, refd to. [para. 204].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 213].

Ontario Public Service Employees' Union v. Ontario (Attorney General) et al. (1987), 77 N.R. 321 (S.C.C.), refd to. [para. 214].

Re Sawyer (1959), 79 S. Ct. 1376, refd to. [para. 143].

Spencer v. Dixon (1968), 290 F.Supp. 531, refd to. [para. 256].

Syndicat des détaillants, grossistes et magasins à rayons, section Locale 580 - see Dolphin Delivery Ltd.

Renvoi relatif à la Public Service Employee Relations Act (Alb.) - see Reference re Compulsory Arbitration.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 41]; sect. 2(b) [paras. 115, 193]; sect. 7 [para. 196]; sect. 15 [para. 87]; sect. 24 [para. 243].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1 [para. 176].

Criminal Code, R.S.C. 1970, c. C-34, sect. 8 [para. 12].

European Convention on Human Rights, art. 10(2) [para. 228].

Authors and Works Noticed:

Hughes, A., Contempt of Court and the Press (1900), 16 L.Q.R. 292 [paras. 17, 103].

Black's Law Dictionary (4th Ed.), p. 225 [para. 137].

Oxford Illustrated Dictionary (1970), generally [para. 145].

Australia, Law Reform Commission, Issue Paper No. 4, Reform of Contempt Law (1984), generally [para. 17].

Australia, Law Reform Commission, Discussion Paper No. 26, Contempt and the Media, generally [para. 207]; pp. 135-136 [para. 93]; 146 [para. 110].

Australia, Law Reform Commission, Offences Relating to Interference with the Course of Justice (1979), para. 3.70 [para. 113].

Canada, Law Reform Commission, Report No. 17, Contempt of Court (1982), generally [para. 114].

Borrie and Lowe, Law of Contempt (2nd Ed. 1983), pp. 226 [paras. 121, 183]; 229 [para. 108]; 244 [para. 17]; 247 [para. 107].

Walker, C., Scandalizing in the Eighties (1985), 101 L.Q.R. 359, generally [paras. 17, 104]; pp. 383-384 [para. 110].

England, Law Commission, Offences Relating to Interference with the Course of Justice (1979), p. 68 [para. 19]; para. 162 [para. 112].

Tarnopolsky and Beaudoin, The Canadian Charter of Rights and Freedoms (1982), p. 109 [para. 101].

Beckton, Clare, Freedom of Expression (1982), p. 109 [para. 101].

Lepofsky, M. David, Open Justice (1985), p. 302 [para. 111].

Mill, John Stuart, The Utilitarians (1962), p. 491 [para. 118].

Hogg, Peter, Constitutional Law of Canada (2nd Ed. 1985), p. 713 [para. 124].

Monissette, Yves-Marie, The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to do and what not to do (1984), 29 McGill L.J. 521, p. 538 [para. 155].

Graphic Review of the Free Speech Clause (1982), 70 Cal. L.R. 107, pp. 133 [para. 222]; 116 [para. 239]; 117-118 [para. 222].

Counsel:

C. Roach and A. Codina, for the appellant;

D. Hunt, Q.C., for the respondent;

D. Doherty, Q.C., for the intervenant.

This appeal was heard on March 9-13, 1987, before Brooke, Dubin, Houlden, Goodman and Cory, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on November 27, 1987, when the following judgments were filed:

Cory, J.A. - see paragraphs 1 to 98;

Houlden, J.A. - see paragraphs 99 to 133;

Goodman, J.A. - see paragraphs 134 to 162;

Dubin, J.A., dissenting in part (Brooke, J.A., concurring) - see paragraphs 163 to 258.