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Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065

 

Vidéotron Ltée and Premier Choix:  TVEC Inc.                              Appellants

 

v.

 

Industries Microlec Produits Électroniques Inc.,

Microlec Group Inc., Microlec Circuits Inc.,

Microlec Distributors Inc., André Duplessis,

Jean‑François Duplessis, Réjean Grondin,

Jean Daigneault and René Gilbert                                                   Respondents

 

Indexed as:  Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.

 

File No.:  21882.

 

1992:  March 26; 1992:  September 24.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Stevenson* JJ.

 

                   Civil procedure ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Compellability ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 49 to 54, 295, 302, 309, 761 ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 33.1 ‑‑ Canadian Charter of Rights and Freedoms , s. 11 (c).

 

                   Civil rights ‑‑ Prohibited testimony ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Compellability ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 33.1 ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 295, 302, 309.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Compellability ‑‑ Contempt of court ‑‑ Non‑compliance with injunction ‑‑ Whether person cited for contempt can be compelled to testify ‑‑ Canadian Charter of Rights and Freedoms , s. 11 (c) ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 295, 302, 309.

 

                   The Superior Court allowed the appellants' action for a permanent injunction and ordered the respondents to cease distributing decoders which make it possible to descramble the appellants' pay television signals.  The appellants then filed an application for a special rule ordering the respondents to appear under art. 53 C.C.P., alleging that they had committed a contempt of court by failing to comply with the injunction.  At the hearing they called one of the respondents to testify.  He objected to testifying, on the ground that he was not compellable in a proceeding in which he was himself cited for contempt.  The Superior Court upheld the objection and the Court of Appeal affirmed that decision.

 

                   Held  (L'Heureux‑Dubé J. dissenting):  The appeal should be dismissed.

 

                   Per Lamer C.J. and La Forest and Gonthier JJ.:  A person cited for contempt under the Code of Civil Procedure cannot be compelled to testify.  The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of "public law", because respect for the role and authority of the courts, one of the foundations of the rule of law, and the proper administration of justice are always at issue.  This public law aspect and the special rules governing contempt in the Code of Civil Procedure make contempt of court a highly specific institution within the Code.  Rules specific to contempt have also been developed by the courts to supplement these exceptional rules created by the Code.  In Quebec law contempt of court is strictissimi juris and quasi‑penal in nature, given the possible consequences, including imprisonment.  It would therefore be contrary to the fundamental principle of Quebec penal law expressly recognized in s. 33.1 of the Charter of Human Rights and Freedoms if a person cited for contempt could be compelled to testify.  The effect of this would also be to facilitate the task of proving contempt beyond a reasonable doubt, a burden which the applicant must scrupulously discharge.  Non‑compellability corresponds to the approach adopted in common law, from which the Quebec law of contempt of court derives, and is consistent with the Canadian Charter of Rights and Freedoms , which protects the right against self‑incrimination.

 

                   While the Code of Civil Procedure sets out in general terms the procedure which applies to contempt of court proceedings, when provisions of such broad application as arts. 295, 302 and 309 C.C.P. conflict with a rule as fundamental to the special rules of contempt as the non‑compellability of the person cited for contempt, these provisions cannot prevail.  The absence of any express exception in the Code is not a deciding factor.

 

                   Per Lamer C.J.:  It is clear from reading art. 50 C.C.P. that for all practical purposes the legislature has created an offence.  The fact that it chose to deal with contempt of court in the Code of Civil Procedure does not in any way alter the fact that, having regard to the Canadian Charter of Rights and Freedoms , a person cited for contempt is a person charged with an offence within the meaning of s. 11  of the Charter  and enjoys the constitutional guarantee contained in s. 11 (c), which specifically provides that a person charged with an offence may not be compelled to testify.  As to arts. 295, 302 and 309 C.C.P., if there is any scope for interpretation, the interpretation that does not offend the Charter  is the one that should be adopted.

 

                   Per L'Heureux‑Dubé J. (dissenting):  Although respect for the function and authority of the courts is a common denominator of civil and criminal contempt, it is important to preserve the distinction between these two types of contempt and not to give a public law dimension to a purely civil contempt.  While in criminal matters contempt is essentially of a punitive and deterrent character and intended to protect collective interests, contempt in purely civil matters is primarily coercive and intended to protect individual interests.  In this case, the primary function of the contempt of court proceeding provided for in art. 761 C.C.P. is to prevent and penalize any breach of an order for an injunction recognizing the private rights of one of the parties.  If priority had to be given to respect for the function and authority of the court, this would amount to relegating to the background the private rights which the injunction order seeks to protect.  The primary objective of private law should be the enforcement of private rights.  Like the injunction of which it is an adjunct, the civil contempt proceeding is a means by which the private rights of a party are enforced.  The fact that the possibility of imprisonment is associated with it does not alter its private nature since coercion is the objective sought by the imprisonment.  The relationship between the injunction order, the art. 761 C.C.P. contempt proceeding and the possibility of imprisonment are not only compatible but closely complementary.

 

                   Articles 295, 302 and 309 C.C.P. make it clear that compellability of the parties is the general rule in civil matters, and these provisions are applicable to a person charged with contempt of court pursuant to art. 761 C.C.P.  The section devoted to contempt (arts. 49 to 54 C.C.P.) cannot be interpreted as if it were an enclave within the Code of Civil Procedure.  That Code constitutes a set of interdependent rules that must be considered as a whole.  Since the section dealing with contempt is silent as to the compellability of a person cited for contempt, reference must be made to the general rules.  These rules are clear and there is no reason for excluding them from consideration and referring to other sources.  Further, the application of the non‑compellability rule in a purely private context is incompatible with the underlying values which that rule and the privilege against self‑incrimination are designed to protect.  Moreover, the imposition of these hurdles on a private party who has obtained an injunction is open to objection:  first, it would make the enforcement of the private rights protected by the order much more difficult, and second, it would amount to transforming a purely private action into a criminal proceeding, thereby rendering meaningless the terms, conditions and purposes appropriate to civil contempt resulting from the breach of an injunction order.

 

                   Finally, even assuming that the Canadian Charter of Rights and Freedoms  applies, the respondents cannot benefit from the protection of s. 11 (c) since the focus of the contempt penalty arising from a civil injunction order is coercion rather than punishment and deterrence.  Moreover, the word "accused" in s. 11  refers to a prosecution, which necessarily goes beyond the purely private setting in which an action for an injunction and a civil contempt proceeding take place.  The same conclusion applies in respect of s. 33.1 of the Quebec Charter of Human Rights and Freedoms.

 

Cases Cited

 

By Gonthier J.

 

                   Referred toSyndicat des employés de l'Hôpital St‑Augustin (CSN) v. Procureur général du Québec, [1977] C.A. 539; Duquette v. Zellers Inc., Sup. Ct. Montréal, No. 500‑05‑000747‑863, July 6, 1987; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; R. v. Wigglesworth, [1987] 2 S.C.R. 541; C.T.C.U.M. v. Syndicat du transport de Montréal (C.S.N.), [1977] C.A. 476; In re Storgoff, [1945] S.C.R. 526; Ministre du Revenu national v. Lafleur, [1964] S.C.R. 412; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Toupin v. Longchamps, J.E. 90‑818; Simard v. Pavillon Charleroi Royer Inc., J.E. 79‑188; Restaurant Faubourg St‑Denis Inc. v. Durand, [1990] R.J.Q. 1218; Sporting Club du Sanctuaire Inc. v. 2320‑4365 Québec Inc., [1989] R.D.J. 596; Charlebois v. Bourbeau, [1979] C.A. 545; Parent v. Perreault, [1979] C.A. 237; Droit de la famille ‑‑ 728, [1989] R.D.F. 671; Daigle v. St‑Gabriel de Brandon (Corp. municipale de la paroisse de), J.E. 91‑195; Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] 2 Q.B. 67; MacNeil v. MacNeil (1975), 67 D.L.R. (3d) 114; Apple Computer, Inc. v. Mackintosh Computers Ltd., [1988] 3 F.C. 277; Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67; Lapierre v. Attorney General of Quebec, [1985] 1 S.C.R. 241.

 

By L'Heureux‑Dubé J. (dissenting):

 

                   United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Royal Trust Co. v. Tucker, [1982] 1 S.C.R. 250; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Montréal‑Est (Ville de) v. Labrosse, [1985] C.S. 960; Contenants Industriels Ltée v. Commission de la santé et de la sécurité du travail du Québec, [1988] R.J.Q. 1345; Comité ‑‑ Infirmières et infirmiers ‑‑ 8, [1983] D.D.C.P. 295.

 

Statutes and Regulations Cited

 

Act respecting the Code of Civil Procedure of Lower Canada, S. Prov. C. 1866, 29‑30 Vict., c. 25.

 

Act respecting the Code of Civil Procedure of the Province of Quebec, S.Q. 1897, c. 48.

 

Act to provide for the issue of the Writ of Injunction in certain cases, and to regulate the procedure in relation thereto, S.Q. 1878, 41 Vict., c. 14.

 

Canadian Charter of Rights and Freedoms , s. 11 (c).

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 33, 33.1 [ad. 1982, c. 61, s. 12].

 

Civil Code of Lower Canada, arts. 1053, 1065, 2273 (old).

 

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 1, 2, 20, 26, para. 5, 46, 49, 50, 51, 52, 53, 54 [am. 1990, c. 4, s. 222], 295, 302, 309, 313, 751, 761, 944 et seq., 996, 1051.

 

Code of Civil Procedure, S.Q. 1965, c. 80, art. 1.

 

Code of Civil Procedure of Lower Canada (1867), art. 1360.

 

Code of Civil Procedure of the Province of Quebec (1897), arts. 1, 834.

 

Code of Penal Procedure, R.S.Q., c. 25.1, chap. XIII.

 

Quebec Act (1774).

 

Authors Cited

 

Baudouin, Jean‑Louis.  Les obligations, 3e éd. Cowansville:  Yvon Blais, 1989.

 

Baudouin, Jean‑Louis.  "The Impact of the Common Law on the CivilianSystems of Louisiana and Quebec".  In Joseph Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions.  Baton Rouge:  Louisiana State University Press, 1974.

 

Brierley, John E. C.  "Quebec's `Common Laws' (Droits communs):  How Many Are There?".  In Mélanges Louis‑Philippe Pigeon.  Montréal:  Wilson & Lafleur, 1989, 109.

 

Brisson, Jean‑Maurice.  La formation d'un droit mixte:  l'évolution de la procédure civile de 1774 à 1867.  Montréal:  Thémis, 1986.

 

Canada.  Law Reform Commission.  Working Paper 20.  Criminal LawContempt of Court ‑‑ Offences Against the Administration of Justice.  Ottawa:  Minister of Supply and Services Canada, 1977.

 

"Coercive (The) Function of Civil Contempt" (1965), 33 U. Chi. L. Rev. 120.

 

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1992.

 

Ferland, Denis, Benoît Emery et Jocelyne Tremblay.  Précis de procédure civile du Québec.  Cowansville: Yvon Blais, 1992.

 

Pigeon, Louis‑Philippe.  Drafting and Interpreting Legislation.  Toronto:  Carswell, 1988.

 

Pineau, Jean et Danielle Burman.  Théorie des obligations, 2e éd. Montréal:  Thémis, 1988.

 

Popovici, Adrian.  L'outrage au tribunal.  Montréal:  Thémis, 1977.

 

Prujiner, Alain.  "Origines historiques de l'injonction en droit québécois" (1979), 20 C. de D. 249.

 

Quebec.  Civil Code of Lower Canada:  Sixth and Seventh Reports and Supplementary Report.  Québec:  George Desbarats, 1865.

 

Quebec.  Rapport préliminaire des commissaires à la révision du Code de procédure civile, 1962.

 

Savoie, Réginald et Louis‑Philippe Taschereau.  Procédure civile, t. I. Montréal:  Guérin, 1973.

 

Sharpe, Robert J.  Injunctions and Specific Performance.  Toronto:  Canada Law Book, 1983.

 

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada.  Toronto:  Butterworths, 1992.

 

Stuart, Don.  "Annotation to R. v. Wigglesworth" (1984), 38 C.R. (3d) 388.

 

Walton, Frederick Parker.  The Scope and Interpretation of the Civil Code of Lower Canada.  Toronto:  Butterworths, 1980.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 703, 69 D.L.R. (4th) 519, 56 C.C.C. (3d) 436, affirming a judgment of the Superior Court.**  Appeal dismissed, L'Heureux‑Dubé J. dissenting.

 

                   Luc Huppé, for the appellants.

 

                   Danielle Barot, as amicus curiae, for the respondents.

 

 

                   English version of the reasons delivered by

 

//Lamer C.J.//

 

                   Lamer C.J. ‑‑ I have read the reasons of my colleague Justice Gonthier and concur in them without reservation.  Although the reasons he gives are sufficient to dispose of this appeal, I should like to add a few comments in support of a different approach. It is clear from reading art. 50 of the Code of Civil Procedure, R.S.Q., c. C‑25, that, for all practical purposes, the Quebec legislature has created an offence.  The fact that it chose to deal with contempt of court in the Code of Civil Procedure does not in any way alter the fact that, having regard to the Canadian Charter of Rights and Freedoms , a person cited for contempt of court is a person charged with an offence within the meaning of s. 11  of the Charter  and enjoys the constitutional guarantee contained in s. 11 (c), which specifically provides that a person charged with an offence may not be compelled to testify.

 

                   As to arts. 295, 302 and 309 C.C.P., in addition to the reasons mentioned by my colleague for making special provision in the Code for contempt of court, there is the consideration that, if a statute or body of legislation is to be interpreted, the interpretation that does not offend the Charter  is the one that should be adopted.

 

 

                   English version of the judgment of La Forest and Gonthier JJ. delivered by

 

//Gonthier J.//

 

                   Gonthier J. ‑‑ This appeal raises the issue of whether the respondent in a motion for contempt of court based on failure to comply with an injunction may be compelled to testify.

 

I.  Facts

 

                   On December 4, 1987, the Superior Court allowed the appellants' action for a permanent injunction, and ordered the respondents to cease distributing decoders which make it possible to descramble the appellants' pay television signals:  [1988] R.J.Q. 546.  On January 6, 1989, the appellants filed an application for a special rule ordering the respondents to appear under art. 53 C.C.P.  They alleged that the respondents had committed a contempt of court by failing to comply with the permanent injunction.  At the hearing, they called the respondent André Duplessis to testify.  Mr. Duplessis objected to testifying, on the ground that he was not compellable in a proceeding in which he was himself cited for contempt.  On August 31, 1989, the Superior Court upheld the respondent's objection.  The Court of Appeal dismissed an appeal from that decision on February 6, 1990:  [1990] R.J.Q. 703, 69 D.L.R. (4th) 519, 56 C.C.C. (3d) 436.  On November 8, 1990, this Court gave the appellants leave to appeal the judgment of the Court of Appeal, [1990] 2 S.C.R. xi.

 

II.  Relevant Legislation

 

Code of Civil Procedure, R.S.Q., c. C‑25

 

295.  All persons are competent to testify except those who, because of their physical or mental condition, are not in a fit state to report the facts of which they had knowledge, and any person competent to testify may be compelled to do so.

 

302.  Any person present at the trial may be required to testify and is bound to answer as if he had been regularly summoned.

 

309.  A witness cannot refuse to answer for the reason that his reply might tend to incriminate him or to expose him to a legal proceeding of any kind; but if he objects on that ground, his reply cannot be used against him in any penal proceedings instituted under any law of Québec.

 

III.  Judgments Below

 

Superior Court

 

                   Galipeau J. of the Superior Court did not follow the decisions of the Court of Appeal, which had held in Syndicat des employés de l'Hôpital St‑Augustin (CSN) v. Procureur général du Québec, [1977] C.A. 539, that a person who was cited for contempt was compellable.  Rather, he followed Lévesque J. of the Superior Court, who had held to the contrary in Duquette v. Zellers Inc., Sup. Ct. Montréal, No. 500‑05‑000747‑863, July 6, 1987, unreported, relying on the common law (in Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618) and on the decisions of the Court of Appeal which had held that, even in civil contempt cases, there had to be proof beyond a reasonable doubt.

 

Court of Appeal

 

                   Brossard J.A., for the court, noted that the judgment of Lévesque J. in Duquette v. Zellers Inc., supra, had moved away from the prevailing opinion of the Superior Court and Court of Appeal.  Brossard J.A. took two points from that decision:  it was based on the common law, and it applied the rules of criminal law to a civil contempt case.  He agreed with the first proposition, in view of Canadian Broadcasting Corp., supra, and Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048.  Moreover, art. 309 C.C.P. cannot be regarded as derogating from the common law in respect of contempt of court.  He then reviewed the common law authorities, and found that today, even in civil contempt cases, a person cited for contempt is not compellable in the contempt proceedings.

 

                   Brossard J.A. further held that compellability in such a case would be inconsistent with the Canadian Charter of Rights and Freedoms .  Contempt of court proceedings go beyond mere private litigation, and fall within the realm of the public interest and the proper administration of justice.  Accordingly, the Charter  should apply.  Moreover, following R. v. Wigglesworth, [1987] 2 S.C.R. 541, the possibility of imprisonment would bring contempt of court proceedings within the ambit of s. 11  of the Charter , which protects the respondent against self‑incrimination.

 

IV.  Issue

 

                   Can the respondent, who has been cited for contempt of court as a result of an alleged failure to comply with an order, be compelled to testify?

 

V.  Analysis

 

A.  The Special Nature of Contempt of Court

 

                   The appellants made much before us of the distinction between "civil contempt" and "criminal contempt".  They argued that, when the main proceedings in which the order allegedly violated was made are civil in nature, it follows that the contempt itself may be characterized as civil contempt, and that it is then governed by the rules in the Code of Civil Procedure.  In support of this proposition, the appellants relied on the decision of the Court of Appeal in C.T.C.U.M. v. Syndicat du transport de Montréal (C.S.N.), [1977] C.A. 476, at p. 482:

 

[translation]  . . . the subsequent proceedings were of the same nature as those which preceded them, and they became, if I may use the expression, chameleon proceedings which took on the colour and nature of those which preceded them, to which they were connected.

 

The Court of Appeal relied on two decisions of this Court:  In re Storgoff, [1945] S.C.R. 526, and Ministre du Revenu National v. Lafleur, [1964] S.C.R. 412.  The issue in those two cases was whether prerogative writs, habeas corpus in the first and prohibition in the second, fell within the realm of criminal procedure (federal) or civil procedure (provincial).  This Court held that whether such writs are governed by federal or provincial rules will depend on the nature of the proceedings to which they are connected.

 

                   Without wishing to express an opinion on the relevance of these two decisions to the issue of contempt of court, I agree that the case at bar indeed involves civil contempt, which is governed by the Code of Civil Procedure.  This does not in any way assist the appellants, however; affixing the qualifier "civil" to a contempt of court does not mean that we are relieved of the task of examining the foundation on which the power to punish contempt of court rests, in order to determine what rules apply to it.

 

                   Article 50 C.C.P. defines contempt 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 acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.

 

This definition clearly establishes the characteristics common to all types of contempt covered by the Code of Civil Procedure, characteristics which may be unduly masked by too great an insistence on the distinction between civil contempt and criminal contempt.  The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of "public law", in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue.  In United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, McLachlin J. established a direct connection between contempt of court and the rule of law, at p. 931:

 

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.

 

                   As the fact that arts. 49 to 54 C.C.P., concerning contempt of court, are included in the chapter entitled "Powers of Courts and Judges" clearly indicates, the power to punish for contempt of court is an integral part of the inherent powers of the courts (see Canadian Broadcasting Corp., supra), and as such it constitutes an essential element in the proper administration of justice.

 

                   This public law aspect of contempt of court is of course reflected in the sanctions which are attached to it.  Any contempt of court, even a civil contempt, may result in punishment by imprisonment for one year, under art. 51 C.C.P.  Contempt of court has moved somewhat out of the realm of private law and into that of public law, thereby acquiring a special place within what is essentially a code of private law like the Code of Civil Procedure.  As we shall see, contempt of court is subject to very special rules in Quebec law.

 

B.  The Special Nature of Contempt of Court in Quebec Law

 

                   Among the various types of procedure governed by the Code of Civil Procedure, contempt of court occupies a highly specific, and even exceptional position.  The special nature of contempt is apparent from art. 1 of the Code:

 

1.  Notwithstanding any contrary provision of any general law or special act, imprisonment in civil matters is abolished, except in cases of contempt of court.

 

The fact that contempt of court is made an exception in the very first article of the Code shows the extent to which it departs from the rules of private procedural law.  Moreover, the fact that the distinguishing feature which makes contempt appear as an exception, that is, the possibility of imprisonment, is itself dealt with in art. 1 of the Code also indicates the importance of this factor in determining which law applies to contempt of court.  The essence of the unique nature of contempt is already found in art. 1.

 

                   In practice, arts. 49 to 54 C.C.P. lay the foundation for a set of special rules for contempt of court.  Article 52 requires that the respondent be given the opportunity to justify his behaviour in the case of contempt in facie.  For contempt of court committed ex facie, art. 53 provides that the respondent must be personally served with a rule ordering him to appear.  Article 54 requires that a judge who makes a condemnation for contempt of court must specifically state the punishment imposed and set forth the reasons for the decision.  Moreover, that article makes execution of the judgment subject to Chapter XIII of the Code of Penal Procedure, R.S.Q., c. C‑25.1.

 

                   Other articles of the Code of Civil Procedure also contribute to the uniqueness of contempt of court.  For example, art. 761 C.C.P., which deals with contempt of court for failing to obey an order of injunction, limits the liability of persons not named in the order to those cases in which such persons knowingly contravene it.  Article 313 C.C.P. allows a witness who refuses to answer to provide a valid reason to excuse his or her refusal.  Finally, as additional protection, para. 5 of art. 26 C.C.P. provides that an appeal will always lie from any final judgment in matters of contempt of court.

 

                   Rules specific to contempt have been developed by the courts to supplement the exceptional rules created by the Code of Civil Procedure itself.  The best known and most important of these rules is undoubtedly the requirement that contempt of court be proved beyond a reasonable doubt, an exceptional burden in civil law (Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109, followed in subsequent judgments).  In cases of failure to obey an order, when there is a doubt as to the legal effect of the order which has allegedly been violated, the respondent is to be given the benefit of that doubt (Toupin v. Longchamps, C.A. Montréal, Nos. 500‑09‑001674‑860, 500‑09‑001675‑867, 500‑09‑001676‑865, April 11, 1990, J.E. 90‑818).  The judge must allow the respondent a certain degree of latitude in respect of the relevance of the evidence presented in attempting to justify himself or herself (Simard v. Pavillon Charleroi Royer Inc., C.A. Montréal, No. 500‑09‑000310‑789, February 9, 1979, J.E. 79‑188).

 

                   Similarly, the courts have been very strict with respect to the evidence that the respondent was indeed subject to a court order.  Thus an arbitration award which merely recognizes a settlement reached by the parties does not constitute an order the contravention of which could give rise to contempt of court (Restaurant Faubourg St‑Denis Inc. v. Durand, [1990] R.J.Q. 1218 (C.A.)).  In the same vein, an order to comply with a contract cannot be the basis for a citation for contempt of court, when the contract is long and complex and would really be interpreted only at the stage of the contempt proceedings (Sporting Club du Sanctuaire Inc. v. 2320‑4365 Québec Inc., [1989] R.D.J. 596 (C.A.)).  Nor is a judgment which establishes the non‑custodial parent's access rights an order against the custodial parent (Charlebois v. Bourbeau, [1979] C.A. 545).

 

                   The courts are also particularly reluctant to hold someone in contempt of court who has not complied with an order to pay a sum of money, since imprisonment for debt has been abolished.  The conduct of the debtor must indicate a certain degree of intention to evade his or her obligations (Parent v. Perreault, [1979] C.A. 237, and Droit de la famille ‑‑ 728, [1989] R.D.F. 671 (C.A.)).  As the Court of Appeal has observed, contempt of court cannot be reduced to a mere means of enforcing judgments (Daigle v. St‑Gabriel de Brandon (Corp. municipale de la paroisse de), C.A. Montréal, No. 500‑09‑000520‑874, January 22, 1991, J.E. 91‑195).

 

                   In summary, the special rules for contempt of court in Quebec law proceed from the following principle:  contempt of court is strictissimi juris and quasi‑penal in nature, given the possible consequences.  In my opinion, it would be inconsistent at the least if a respondent cited for contempt could be compelled to testify.  This would be contrary to a fundamental principle of Quebec penal law, which is expressly recognized in s. 33.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.  The effect of this would be to facilitate greatly the task of proving contempt beyond a reasonable doubt, a burden which the applicant must scrupulously discharge.  I therefore conclude that the respondent must not be held to be compellable, in the context of the exceptional character of the contempt of court process in the Code of Civil Procedure.

 

                   This approach, moreover, corresponds to the approach adopted in common law, from which the Quebec law of contempt of court derives, as this Court noted in Canadian Broadcasting Corp., supra (see Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] 2 Q.B. 67 (C.A.), MacNeil v. MacNeil (1975), 67 D.L.R. (3d) 114 (N.S.C.A.), and Apple Computer, Inc. v. Mackintosh Computers Ltd., [1988] 3 F.C. 277 (C.A.)).  The non‑compellability of the respondent is also consistent with the Canadian Charter of Rights and Freedoms , which protects the right against self‑incrimination.

 

                   The appellants argued that if it is impossible to compel the respondent in contempt of court proceedings it will be very difficult to prove the contempt, and in the long term the respect shown for court orders will be undermined.  In the case at bar, this argument appears to me to be of little weight, since the appellants have already succeeded in obtaining one finding of contempt of court against one of the respondents, on the basis of evidence they had gathered themselves (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., Sup. Ct. St‑François, No. 450‑05‑000518‑858, October 11, 1988, unreported).  The appellants did not submit any decision, study or commentary in support of this argument.  Since it has been a rule in common law for many years that the accused is not compellable, if the problems foreseen by the appellants had developed in common law, they would certainly have come to the attention of the courts or of legal authors.  Furthermore, because of the public law aspects of contempt of court, particularly that of imprisonment, it must be subject to certain rules of fundamental justice, even if its effectiveness might thereby be reduced.  I entirely share the opinion of the Court of Appeal that contempt of court cannot be reduced to a simple means of enforcing judgments.  If contempt of court (and the attendant possibility of imprisonment) were found to be inadequate in some cases, precisely because it is being used essentially to enforce judgments, it would then be for the legislature to provide for other means of enforcement, if necessary.

 

C.  Articles 295, 302 and 309 of the Code of Civil Procedure

 

                   These three articles set out the general rule as to the compellability of witnesses in Quebec judicial law.  The appellants submit that these articles should also apply to contempt of court proceedings under the Code of Civil Procedure, in the absence of any provision to the contrary in the Code itself.

 

                   It is well settled that specific rules prevail over general rules.  Here, arts. 295, 302 and 309 C.C.P. must give way to the rule that a respondent cited for contempt of court is not compellable, which applies within the framework of a very special process under the Code of Civil Procedure itself.

 

                   The absence of any express exception in the Code of Civil Procedure is not a deciding factor.  This Court has recognized that "[t]he Civil Code does not contain the whole of civil law.  It is based on principles that are not all expressed there, which it is up to case law and doctrine to develop" (Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67, at p. 76; see also Lapierre v. Attorney General of Quebec, [1985] 1 S.C.R. 241).  As J. E. C. Brierley stated in "Quebec's `Common Laws' (Droits communs): How Many Are There?", in Mélanges Louis‑Philippe Pigeon (1989), 109, at p. 116:

 

Indeed it can be argued that in the civil law tradition of France and Quebec, the recognition of the ultimate insufficiency of legislative enactment is a central tenet of the very philosophy of a Civil Code as a style of law‑making.

 

Like the Civil Code, the Code of Civil Procedure does not constitute an exhaustive statement of the law.  Quebec procedure is indeed based on the Code of Civil Procedure, but the latter is not its only expression.

 

                   While the Civil Code is based in large part on the civil law which Quebec inherited from France, the lineage of the Code of Civil Procedure is more complex.  As J.‑M. Brisson shows in La formation d'un droit mixte: l'évolution de la procédure civile de 1774 à 1867 (1986), local rules and customs existed, alongside the Ordinance of Louis XIV of April 1667 and the English law of that period, well before the codification.  Those rules and customs, during both the French and English periods, adapted, supplemented and modified the Old Continent law.  The great value of the first Code of Civil Procedure (1867), which came into force under the Act respecting the Code of Civil Procedure of Lower Canada, S. Prov. C. 1866, 29‑30 Vict., c. 25, was precisely that it brought these scattered elements together in one place.  After Confederation, constitutional constraints stemming from the division of powers in respect of the administration of justice and organization of the courts added to the complexity of the sources of Quebec procedural law.

 

                   The 1867 Code did not aspire to completeness, since the penultimate article of that Code, art. 1360, expressly continued the law prior to the Code in effect:

 

                   1360.  The laws concerning procedure in force at the time of the coming into force of this code, are abrogated:

 

                   1.  In all cases in which this code contains any provision having expressly or impliedly that effect;

 

                   2.  In all cases in which such laws are contrary to or inconsistent with any provision of this code, or in which express provision is made by the Code upon the particular matter to which such laws relate;

 

                                                                   . . .

 

Article 1 of its successor, the 1897 Code of Civil Procedure, which came into force under the Act respecting the Code of Civil Procedure of the Province of Quebec, S.Q. 1897, c. 48, adopted this provision virtually in its entirety.  Article 1 of the present Code of Civil Procedure, as it read at the time the Code was enacted in 1965, S.Q. 1965, c. 80, merely repealed the Code of procedure then in force, and said nothing about the rest of the procedural law.  Moreover, both art. 2 C.C.P., which makes procedure the servant of the law, and arts. 20 and 46 C.C.P., which allow the court to supplement the Code, imply that procedural law is not limited to the Code.  Accordingly, there are rules of procedure outside the Code of Civil Procedure which supplement it.

 

                   In the case at bar, the Code of Civil Procedure does contain the basis of the exceptional rules which apply to contempt of court.  They are supplemented by rules which find their origin in scholarly opinion and the cases, and which are made necessary by the nature of contempt and the particular sanction attached to it.  As I noted earlier, contempt of court is a highly specific process within the Code of Civil Procedure.  While the Code sets out in general terms the procedure which applies to contempt of court proceedings, when provisions of such broad application as arts. 295, 302 and 309 C.C.P. conflict with a rule as fundamental to the special rules of contempt as the non‑compellability of the respondent, these provisions cannot prevail.

 

VI.  Conclusion

 

                   I am of the opinion that this appeal should be dismissed, without costs in this Court.

 

 

                   The following are the reasons delivered by

 

//L'Heureux-Dubé J.//

 

                   L'Heureux‑Dubé J. (dissenting) ‑‑ I have had the advantage of reading the reasons of my colleague Gonthier J. and, with all due respect, I cannot agree.  For the reasons that follow, I am of the view that the general rule regarding the compellability of the parties in a civil proceeding should be applied in this appeal.

 

Facts

 

                   In order to gain a better understanding of the issues in the case at bar, it is necessary to look closely at the facts which gave rise to it.

 

                   The appellant Vidéotron Ltée operates a cable television business throughout eastern Canada pursuant to licences issued by the Canadian Radio‑television and Telecommunications Commission ("CRTC").  The appellant Premier Choix:  TVEC Inc. operates a pay television business throughout eastern Canada pursuant to a licence issued by the CRTC.  Its service is transmitted by satellite to cable operators, including Vidéotron Ltée.  The latter transmits this service to its subscribers along with other services available on cable.  Since it is of the very essence of a pay television system that users bear the cost, the two appellant companies control access to this service.  This control is exercised by means of a signal scrambling system which makes the reception of pay television services unintelligible.  In order to view the pay television services in question, the television viewer must also be a subscriber to the Vidéotron Ltée cable network.  At the time of subscription Vidéotron Ltée leases the television viewer a decoder which is programmed to descramble signals for the pay television services for which the subscriber has paid the relevant subscription fees.  These fees include a $4 per month rental charge for the decoder.  The subscription fees are used to pay applicable federal and provincial taxes, operating costs, CRTC fees and charges payable to Premier Choix and other suppliers of the pay television service.  The remainder is income for Vidéotron Ltée.  The appellants' income is thus directly dependent on the number of subscribers.

 

                   The individual respondents here are directors or representatives of the respondent companies which manufacture and market a decoder (the Microlec decoder) similar to that supplied by Vidéotron Ltée to its subscribers.  Its sole function is to descramble pay television signals.  With the use of this decoder, someone can access the pay television service without paying the subscription fees charged by the cable operator.  The respondents admitted that over 20,000 Microlec decoders were sold between 1983 and 1986.

 

                   In 1986, the appellants brought proceedings against the respondents for an injunction to prohibit them from manufacturing or marketing Microlec decoders.  In June 1987, the Quebec Court of Appeal ([1987] R.J.Q. 1246) allowed the appellants' appeal from a Superior Court decision (J.E. 86‑1005) which had dismissed their application for an interlocutory injunction.  Malouf J.A., for the majority, held that the respondents' activities constituted a civil wrong of unfair competition in respect of the appellants and that an injunction could be issued, since (at p. 1251):

 

[translation] The respondents' actions defeat the right conferred on the appellants by the licences issued to them by the CRTC to collect monetary compensation for the services offered by their business and deprive them of the control they are required to exercise over access to the pay television services they offer.

 

In addition, the injury caused the appellants was significant on account of the large number of Microlec decoders marketed by the respondents and the impact of this activity on the financial situation of the appellant Premier Choix.  Further, that injury was irreparable.  Each decoder sold meant the definite loss of a potential subscriber.  Malouf J.A. concluded (at p. 1251) that an injunction order was the only possible remedy in the circumstances of the case because [translation] "[t]he appellants could not be compensated financially in view of the impossibility of determining the number of people who had bought Microlec decoders and of quantitatively assessing the damage sustained".  Having concluded that the final judgment would not be able to rectify the prior situation if an interlocutory injunction was not issued, given the impossibility of tracing and recalling the decoders marketed by the respondents before that judgment, Malouf J.A. reversed the trial judgment and issued the order for an interlocutory injunction sought by the appellants.

 

                   By judgment rendered on December 4, 1987 ([1988] R.J.Q. 546), Jean‑Louis Péloquin J. allowed the appellants' action for a permanent injunction and held, like the Court of Appeal, that the marketing of Microlec decoders manufactured by the respondents constituted a civil wrong of unfair competition, making them liable under art. 1053 of the Civil Code of Lower Canada ("C.C.L.C.").  By the same judgment he issued an order for a permanent injunction, which reads as follows (at p. 552):

 

                   [translation] Now therefore, for these reasons:

 

                   The Court dismisses the defendants' plea;

 

                   Allows the plaintiffs' action;

 

                   Issues an order for a permanent injunction directing the defendants, their directors, officers, representatives, employees and successors, anyone acting in their name or on their behalf and any person who shall have knowledge of this order or on whom it is served, not to offer for sale, market or otherwise place in circulation, directly or indirectly, any equipment programmed or designed to make it possible to descramble the pay television signals transmitted and supplied by the plaintiffs Vidéotron Ltée or Premier Choix:  TVEC Inc., so as to make such equipment available to subscribers of cable television services in the territory covered by the licences of one or other of the plaintiffs;

 

                   In 1988, the appellants brought proceedings against all the respondents for contempt of court.  One respondent, Jean‑François Duplessis, was found guilty of contempt of court.  He was sentenced to a fine of $1,500, or one month's imprisonment.  The proceedings were dismissed against the other respondents as the appellants were unable to establish beyond a reasonable doubt that these respondents had infringed the permanent injunction order: C.S. St‑François, No. 450‑05‑000518‑858, October 11, 1988, unreported.

 

                   In early 1989, contempt of court proceedings were brought once again against the respondents for failure to comply with the same permanent injunction order.  On the appellants' motion pursuant to arts. 53 and 761 of the Code of Civil Procedure, R.S.Q., c. C‑25 ("C.C.P."), a special rule was issued by the Superior Court ordering the respondents to appear before the court to hear proof of the acts with which they were charged and to urge any grounds of defence that they might have.

 

                   At the hearing of this application, after calling a number of witnesses, counsel for the appellants attempted to call one of the respondents, André Duplessis.  Before he could be sworn, his counsel objected on the ground that, being one of the respondents in the motion for contempt of court, Mr. Duplessis was not compellable.  The trial judge agreed.  The Court of Appeal dismissed the appeal (decision reported at [1990] R.J.Q. 703, 69 D.L.R. (4th) 519, 56 C.C.C. (3d) 436), and hence the appeal at bar.  It is in this context that this Court must, as the court of last resort, decide the issue.

 

Issue

 

                   The only question before this Court, as before the courts below, is whether a person charged with contempt of court pursuant to art. 761 C.C.P. can be compelled to testify at his or her trial for contempt.

 

Analysis

 

                   I agree with my colleague Gonthier J. that the rationale for contempt of court must first be examined in order to determine the applicable rules.  However, this examination leads me to a different conclusion.  This conclusion is important as, in my opinion, it is the guiding principle by which both the injunction proceeding and the compellability rule in the Code of Civil Procedure should be analyzed.

 

Rationale Underlying Contempt of Court

 

                   In the first paragraph of art. 50 of the C.C.P., the Quebec legislature has defined the acts which may constitute contempt of court:

 

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 way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.

 

                   This description suggests that sanctions for contempt of court may be viewed against the background of the desire to maintain respect for the function and authority of the courts.  It also indicates that contempt is a complex concept capable of being applied in a variety of situations.  As pointed out by D. Ferland, B. Emery and J. Tremblay:

 

                   [translation]  In Quebec law contempt of court is summarily described by the legislature in similar terms (art. 50).  Accordingly, anyone is guilty of contempt of court who disobeys an order other than an injunction, in particular in matters of custody, visiting and access rights. . . .

 

                   Also guilty of contempt is anyone who infringes an injunction order (art. 761) or interferes with the orderly administration of justice in an injunction proceeding (art. 50), who comments orally or in writing on cases sub judice, or cases pending in the courts, impairs the authority or dignity of the court or commits fraudulent acts preventing the execution of a judgment ordering the payment of an alimentary pension.

 

(Précis de procédure civile du Québec (1992), at pp. 56‑57.)

 

                   Contempt of court is thus a generic term, the definition of which conceals a certain degree of complexity.  In my view, this observation should be the starting point of any analysis focusing on the rationale of contempt of court.  Contempt of court is a concept which exists in the private sphere as well as in the sphere of public law.  This duality provides a clue to the origins of contempt.  In this regard, the Law Reform Commission of Canada has written:

 

                   Civil contempt at common law consists largely in disobeying a judgment or a court order.  It includes disobeying an injunction, refusing to testify when ordered to do so, or failing to appear as a witness.  The harm done by civil contempt is primarily of a private character:  if an injunction is not respected, it is the party in whose favour it was granted who will suffer; if a witness refuses to appear, it is the party calling him who bears the loss.

 

                   Criminal contempt, on the other hand, results from words, acts or writings that constitute an obstruction or discredit to the administration of justice.  Examples are bribing a witness or a juror, attempting to influence a judge, falsely accusing a judge of bias, or disobeying a court order in a criminal case.  The harm in criminal contempt, therefore, is primarily of a general character:  if the course of justice is tampered with, society as a whole suffers the consequences.

 

                   Civil contempt exists primarily for the benefit of individuals.  Its justification is, above all, the protection of individual interests.  Criminal contempt serves a broader social interest; it finds its justification in the desire to protect the rights of society generally.  [Emphasis added; italics in original.]

 

(Working Paper 22, Criminal Law: Contempt of Court -- Offences against the Administration of Justice (1977), at p. 12.)

 

                   Moreover, in a recent case, this Court has noted the importance of preserving the distinction between these two types of contempt:  United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901.  In that decision Cory J., dissenting on another point, stated that these two types of contempt can be clearly distinguished according to their purposes (at p. 911):

 

The purpose of the criminal law is to protect society whereas the civil law regulates and facilitates private relationships.  The sole reason for the existence of a separate category of criminal contempt is to answer the need to discourage and to punish those acts which occasion serious injuries to the public interest.  Where the injury caused by disobedience to an order is private in nature, the civil contempt powers suffice.  In order to determine whether by their conduct individuals are subject to criminal contempt, the court should ask:  who has been injured and what are the extent of the injuries caused by the contumacious conduct?  [Emphasis added.]

 

                   My colleague Gonthier J. is of the view that civil contempt has a "public law" aspect since it always involves respect for the function and authority of the courts.  In his view, over‑emphasizing the distinction between civil and criminal contempt obscures this characteristic which is common to all contempts.  With respect, I cannot agree.  First, the dual nature of contempt and its ensuing adaptability to a wide range of situations is as I see it at the very foundation of the institution itself.  (See to the same effect as the above‑cited decision, Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, at p. 517, and B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at pp. 233‑34.)  Accordingly, I think it is essential to bear this duality in mind in considering the rationale behind contempt of court.  Further, I feel that minimizing or ignoring this duality risks creating confusion between the two types of contempt by projecting parameters peculiar to public law onto purely private law situations.  Without in any way denying that respect for the function and authority of the courts is a common denominator of the two types of contempt, the essence of civil contempt must lie primarily in the protection of individual interests.  It is these interests, regardless of the procedural vehicle used, which give rise to judicial intervention.

 

                   In my opinion, the best way of clarifying the special nature of this institution is to examine the place held by the injunction in the range of remedies available to a person to whom a civil obligation is owed.  This review will both illustrate the special function of civil contempt and place the present case once again in its proper factual context.

 

Injunction and Contempt of Court

 

Article 751 C.C.P. defines injunction as follows:

 

751.  An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

 

                   The contempt of court proceeding following an injunction order is governed by art. 761 C.C.P.:

 

761.  Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding fifty thousand dollars, with or without imprisonment for a period up to one year, and without prejudice to the right to recover damages.  Such penalties may be repeatedly 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 to do so.

 

                   When these two provisions, found in the chapter entitled "Injunctions", are read together they can, in my opinion, only lead to the following conclusion:  the art. 761 C.C.P. contempt of court proceeding is, first and foremost, a means of enforcing an injunction order.  This conclusion in turn gives rise to two observations.  If, as my colleague Gonthier J. suggests, the contempt of court penalty has a special place in the Code of Civil Procedure, it follows logically that the injunction, to which the contempt in art. 761 C.C.P. is an adjunct, represents an exceptional means of enforcing a purely private obligation.  As I see it, there is such a clear connection between these two remedies that one cannot consider the function of civil contempt without devoting just as much attention to the role of the injunction as a means of enforcing a civil obligation in the Code of Civil Procedure.

 

                   One cannot place too great an emphasis on the special nature of the injunction among the remedies available to the person to whom a civil obligation is owed.  Under art. 1065 C.C.L.C., an infringement of any obligation gives rise to a range of remedies including damages and specific performance.  The choice of remedy is made by the person to whom the obligation is owed.  This choice is often influenced or indeed imposed by the nature of the obligation and the circumstances surrounding the breach.  Accordingly, as can be seen in the circumstances giving rise to this appeal, specific performance by way of an injunction is sometimes the only remedy available to a party (as to specific performance of obligations not to do something, see J.-L. Baudouin, Les obligations (3rd ed. 1989), No. 687, at p. 411, and J. Pineau and D. Burman, Théorie des obligations (2nd ed. 1988), No. 344, at p. 426).

 

                   In the case at bar, the injunction order is designed to protect and support the appellants' rights relating to the ownership and operation of their businesses against the respondents.  Like the Quebec Court of Appeal, which, in June 1987, issued an interlocutory injunction order in favour of the appellants, the Superior Court on December 4, 1987 recognized the appellants' private rights in the following terms (at p. 550):

 

                   [translation]  By marketing these Microlec decoders the defendants participated in the delict of theft of services provided by the plaintiffs by furnishing Vidéotron basic subscribers with the tool they needed to obtain the pay television without payment.

 

The permanent injunction order was accordingly issued in response to a civil wrong of unfair competition, which in Quebec law is governed by art. 1053 C.C.L.C.  It appears from the judgments in the courts below that the injunction was the only remedy available to the appellants, as it was impossible to assess the number of people who had dealt with the respondents and to determine quantitatively the damages sustained.  This order, along with  the private rights it seeks to protect, would be a dead letter if a contempt of court proceeding could not guarantee its enforcement.

 

                   The origins of the injunction thus make clear the primary function of the contempt of court proceeding associated with it:  to prevent and penalize any breach of an order recognizing the private right of one or more individuals.  Unlike my colleague Gonthier J. I doubt whether, in such circumstances, respect for the function and authority of the court issuing the injunction gives civil contempt such a "public law" aspect as to produce the procedural consequences which he contemplates.  Since an injunction order is always issued in the form of a court order, it seems clear that anyone contravening an injunction is refusing to obey a direct order of the court and in so doing impairs the authority of the court.  However, giving priority to this factor amounts to relegating to the background the private rights which the injunction order seeks to protect.  The parties admit, and the facts confirm, that the contempt in the case at bar is civil in nature.  In these circumstances, the primary objective of private law should be, in my opinion, the enforcement of private rights.  Professors Savoie and Taschereau (Procédure civile, (1973), vol. I) have clearly identified this as the essence of the civil proceeding, while recognizing its mixed nature (at p. 9):

 

[translation]  . . . the civil proceeding is an enforcing right, that is, its purpose is to enforce the norms of the determining right so that the private rights will be respected; substantive law determines the private rights and they are enforced by means of the civil proceeding.

 

And at pp. 7‑8:

 

                   [translation]  Despite the adjective "civil" which would seem to give it an exclusively private law character, the proceeding also has its place in public law since, in the broad sense which we have given it, it deals with the organization and powers of the courts, that is, the organization and powers of the branch of government whose function it is to enforce private rights; it also touches on public law in the sense that it serves to bring the individual into contact with the branch of government which alone has the power to enforce his subjective rights.  [Emphasis added.]

 

This being said, these writers make it clear that, despite its mixed character, the civil proceeding remains essentially private in nature:

 

[translation]  However, in a large part of the rules it formulates, the civil proceeding is essentially a matter of private law since its primary function is to enforce relations between individuals.  [Emphasis added.]

 

                   Though it also aims to maintain respect for the authority of the court, the civil contempt proceeding does not on this account fall into the realm of public law.  Like the injunction of which it is an adjunct, it is first and foremost a means by which private rights are enforced.  The fact that the possibility of imprisonment is associated with it does not alter this primary function.  A brief review of the origins of civil contempt merely confirms its close relationship with the enforcement of civil injunction orders.

 

                   As a potential means of enforcing an order of court, imprisonment was provided for in the 1866 codification.  Although the procedures relating to the enforcement of civil injunctions were not really regulated until 1878 (An act to provide for the issue of the Writ of Injunction in certain cases, and to regulate the procedure in relation thereto, S.Q. 1878, 41 Vict., c. 14; A. Prujiner, "Origines historiques de l'injonction en droit québécois" (1979), 20 C. de D. 249), coercive imprisonment was included in Title Twentieth, Book Third, of the first Civil Code, entitled Of Imprisonment in Civil Cases.  Failure to comply with an injunction was one of the rare situations leading to this procedure.

 

                   2273.  Persons are also subject to imprisonment for contempt of any process or order of court, and for resistance to such process or order, and for any fraudulent evasion of any judgment or order of court, by preventing or obstructing the seizure or sale of property in execution of such judgment.

 

                   In keeping with the recommendations of the Commissioners (Civil Code of Lower Canada:  Sixth and Seventh Reports and Supplementary Report (1865), at p. 74), the Quebec legislature removed the provisions regarding coercive imprisonment from the Civil Code and incorporated them in the new Code of Civil Procedure in 1897.  Before the latter was revised in 1965, these provisions were contained in Section IV, "Arrest in Civil Matters and Coercive Imprisonment", of Chapter XXX, entitled Compulsory Execution of Judgments.  A reading of the French and English versions of art. 834, based on the old art. 2273 C.C.L.C., indicates the purpose served by imprisonment in the context of an injunction order:

 

                   834.  Il y a encore lieu à contrainte par corps pour mépris d'une ordonnance ou injonction d'un tribunal ou d'un juge, ou pour résistance à cette ordonnance ou injonction, ou pour tout acte tendant à éluder l'ordonnance ou l'injonction, en prévenant ou empêchant la saisie ou la vente des biens en exécution de l'ordonnance ou de l'injonction.

 

                   L'emprisonnement en ce cas ne peut excéder un an, mais peut être imposé derechef jusqu'à ce qu'il ait été obéi à l'ordonnance ou injonction.

 

                   834.  Coercive imprisonment may also be ordered for contempt of any process or order of the court or of a judge, or for resistance to such process or order, or for any evasion of any such judgment or order, by preventing or obstructing the seizure or sale of property in execution of such judgment or order.

 

                   In such cases the term of imprisonment cannot exceed one year, but may be repeatedly inflicted until the process or order is obeyed.  [Emphasis added.]

 

Thus, the English version expressly identifies coercion as the purpose of the imprisonment.  When the Code of Civil Procedure was adopted in 1965, S.Q. 1965, c. 80, art. 1 abolished coercive imprisonment except in cases of contempt of court.  The English version of the fourth paragraph read as follows:

 

                   Coercive imprisonment shall be abolished in civil matters, notwithstanding any provision to the contrary, except in cases of contempt of court.  [Emphasis added.]

 

                   Although art. 761 C.C.P. does not make mention of coercion, the purpose of imprisonment in the context of an alleged breach of a civil injunction order remains unchanged, in my opinion.  Moreover, that purpose seems inseparable from the dual nature of contempt:

 

In purely civil matters, contempt has a primarily coercive dimension, in that it obliges one party to submit to a court order issued for the benefit of another.  Very often, the order is enforced merely by hinting at the possibility of sanctions.

 

                   In criminal matters, on the other hand, contempt is essentially of a punitive and deterrent character.  It is used to punish an action judged harmful to the dignity of the judicial process or to the administration of justice.  Its object is to expose attacks on a fundamental institution and, ultimately, to prevent their repetition.  The philosophy underlying sanction in the two cases is therefore based on different considerations.  [Emphasis added; italics in original.]

 

(Law Reform Commission of Canada, supra, at pp. 13‑14.)

 

(See to the same effect R. J. Sharpe, Injunctions and Specific Performance (1983), at pp. 248‑49; "The Coercive Function of Civil Contempt" (1965), 33 U. Chi. L. Rev. 120, at p. 129.)

 

                   The function of contempt arising from a civil injunction order is thus one of coercion.  The function of contempt arising from a criminal matter is one of punishment and deterrence.  This function clearly gives criminal contempt a public dimension.  Civil contempt, on the other hand, continues to be of a private nature:  the aim of the party seeking it is to ensure that the civil order made solely for his or her benefit is complied with.  The powers of the court, first among which is imprisonment, are directed to a specific end:  the protection of the applicant's rights through compelling the respondent to act, or to refrain from committing given acts as defined in the injunction order.  There is no punitive or deterrent purpose underlying these powers.  In these circumstances, civil contempt arising from an injunction acts to some extent as a form of forced execution of judgment (see A. Popovici, L'outrage au tribunal (1977), at p. 42).  Furthermore, although a mere threat of imprisonment will suffice in most cases to compel execution of the order, the actual terms and conditions of imprisonment cannot be compared to those which apply to the penalty for criminal contempt.  As Professor Sharpe explains, supra., at pp. 252‑53:

 

                   Generally speaking, where the element of public defiance is absent, the matter is regarded primarily as coercive rather than punitive.  Once compliance is assured the court only need concern itself with the question of costs.  Even where the court commits a contemner to prison, the object is to secure compliance, and he will be released and relieved from the consequences of his contempt by doing or assuring that which he previously neglected or refused to do.  While in a criminal contempt case the defendant will have to serve the fixed period of imprisonment designed to punish and deter, in civil cases, where fixed terms are usually (although not inevitably) employed, the defendant can apply for discharge before the term of the committal has come to an end.  [Emphasis added.]

 

                   In short, since contempt of court is a hybrid institution, simple logic demands that purely civil contempt not be given the public dimension that lies at the heart of criminal contempt.  The civil injunction and the contempt which may arise from it are designed primarily to enforce the private rights protected by the order.  The purpose and terms and conditions of civil imprisonment are of a clearly coercive nature, designed to assist in the enforcement of these rights.  The relationship between the injunction order, the art. 761 C.C.P. contempt proceeding and the possibility of imprisonment thus seem to me not only compatible but closely complementary.  In the final analysis, since the case at bar concerns contempt arising from a civil injunction order, the parameters appropriate to public law cannot be applied.  In my opinion, the purpose of criminal contempt is diametrically opposed to the purpose of civil contempt.  I shall therefore consider the question of compellability in light of these principles.

 

Contempt of Court and the Compellability Rule

 

                   The compellability of a party to a civil action is above all a question of evidence and procedure.  As such, the correct approach is to have recourse to the Code of Civil Procedure in order to determine the rules applicable to the matter.  This approach is also the one preferred by my colleague Gonthier J.  The Quebec Court of Appeal, however, relied instead on the common law.  Brossard J.A., for the court, concluded his analysis of compellability as follows (at p. 528 D.L.R.):

 

                   [translation]  In short, it would appear that the common law rule is now that a respondent who is sued for contempt of court, even in a civil case, but who is liable to imprisonment, cannot be compelled to testify against himself.  In accordance with the above‑mentioned decisions of the Supreme Court of Canada in the cases of Cotroni and Canadian Broadcasting Corp., the common law rules are applicable in Quebec with respect to contempt of court even in civil proceedings unless explicitly excluded by the Quebec legislature.  As I have already stated, I do not think that art. 309 can be regarded as an explicit deviation from the common law rule.

 

                   With respect, these two judgments do not have the scope attributed to them by Brossard J.A. Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618, and Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048, concerned an investigation into organized crime and the issues raised were matters of administrative law.  In public law matters the fundamental law in Quebec is the common law (see L.‑P. Pigeon, Drafting and Interpreting Legislation (1988), at pp. 65‑66).  However, in the case at bar the question is whether a rule of civil procedure should be applied in a proceeding for civil contempt.  The civil contempt proceeding has a specific purpose:  to determine whether the respondents contravened their obligation, recognized by the injunction order, not to manufacture and market their decoders.  Unlike the above‑cited decisions, therefore, the context is purely private.  Furthermore, since the Quebec Act of 1774, Quebec civil law is no longer governed by the common law (see Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at pp. 737‑38).

 

                   There is nothing unusual about the fact that contempt of court is a concept borrowed from English law.  Quebec private law includes a wealth of rules of law drawn from foreign sources (as to the Code of Civil Procedure, see J. M. Brisson, La formation d'un droit mixte:  l'évolution de la procédure civile de 1774 à 1867 (1986)).  The common law principles cannot simply be applied to these rules, in my opinion, without first directly addressing the question of whether those principles are even compatible with the recipient law (in the context of trusts see the reasons of Beetz J. in Royal Trust Co. v. Tucker, [1982] 1 S.C.R. 250).  Finally, such an approach seems particularly inappropriate where, as here, it is used in connection with provisions which form part of the general structure of a code (P.‑A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1992), at pp. 26‑27 and 450‑51; J.-L. Baudouin, "The Impact of the Common Law on the Civilian Systems of Louisiana and Quebec", in J. Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions (1974), ch. I).

 

                   It is against this background that the provisions of the Code of Civil Procedure should be analyses.  I reproduce them for the sake of convenience:

 

295.  All persons are competent to testify except those who, because of their physical or mental condition, are not in a fit state to report the facts of which they had knowledge, and any person competent to testify may be compelled to do so.

 

302.  Any person present at the trial may be required to testify and is bound to answer as if he has been regularly summoned.

 

309.  A witness cannot refuse to answer for the reason that his reply might tend to incriminate him or to expose him to a legal proceeding of any kind; but if he objects on that ground, his reply cannot be used against him in any penal proceedings instituted under any law of Québec.

 

                   Although these provisions make it clear that compellability of the parties is the general rule in civil matters, my colleague Gonthier J. is of the view that these provisions do not apply to civil contempt.  According to him, they should be excluded from consideration because of the special nature of contempt, in which the non‑compellability rule is of central importance.

 

                   With respect, I cannot agree.  In my opinion, the Code of Civil Procedure constitutes a set of interdependent rules that must be considered as a whole (art. 2 C.C.P. and Rapport préliminaire des commissaires à la révision du Code de procédure civile (1962), at p. 3).  Accordingly, the section of the Code devoted to contempt (arts. 49 to 54 C.C.P.) cannot be interpreted as if it were an enclave within the Code.  Since the section dealing with contempt is silent as to the compellability of a respondent, reference must be made to the general rules, which are clear and unambiguous in this regard.  Moreover, such an approach has the merit of being consistent with the method used by the Quebec legislature:  where it was intended that proceedings contained in the Code would be subject to special rules, this was expressly indicated (see arts. 944 et seq. on arbitration, art. 996 on the recovery of small claims and art. 1051 on class actions).  Finally, since the Code is clear, it would be illogical to exclude it from consideration and refer to other sources, whether doctrinal or jurisprudential (F. P. Walton, The Scope and Interpretation of the Civil Code of Lower Canada (1980), at p. 87).  Without wishing to express an opinion on the merits of the Court of Appeal's judgment in Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109, the same conclusion would apply to the burden of proof had the Code of Civil Procedure contained similar provisions.

 

                   The application of the non‑compellability rule in a purely private context also seems to me to be incompatible with the underlying values which that rule and the privilege against self‑incrimination are designed to protect.  In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 480, Wilson J., dissenting, summarized the rationale behind these two types of privilege as follows:

 

                   Having reviewed the historical origins of the rights against compellability and self‑incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state.  The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth.  [Emphasis added.]

 

Without repeating my earlier observations on the special nature of the civil contempt resulting from an injunction order, it seems to me to be inconsistent to project these considerations into a private context.  In terms of the panoply of recourses available to a party in the judicial arena, the advantage enjoyed by the state in a criminal or penal situation alone justifies having stricter rules of evidence for the state (see J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p. 3).  However, the imposition of these hurdles on a private party who has obtained an injunction, and who by definition does not have the same resources as the Attorney General, seems open to objection.  It would make the enforcement of the private rights protected by an order much more difficult and would amount to transforming a purely private action into a criminal proceeding, thereby rendering meaningless the terms, conditions and purposes appropriate to civil contempt resulting from the breach of an injunction order.

 

                   I am of the view that when these factors are taken together with the internal logic of the Code of Civil Procedure, the question of the respondents' compellability can only be resolved in the affirmative.  However, I must still consider the effect of the Charters on this conclusion.

 

Effect of the Charters on the Compellability Rule

 

                   Although the constitutional validity of arts. 295, 302 and 309 C.C.P. was not raised at any stage of the proceedings, the respondents maintain that the application of the compellability rule would be contrary to s. 33.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, and s. 11 (c) of the Canadian Charter of Rights and Freedoms .  Since the argument in this Court was devoted primarily to the effect of the Canadian Charter , I shall discuss it first.

 

                   Assuming that the Charter  applies ‑‑ without deciding the point and without expressing an opinion on either the Court of Appeal's reasons in this regard or on the question of the applicability of the criteria developed by this Court in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, to Quebec private law ‑‑ I am of the view that the respondents cannot benefit from the protection of s. 11 (c).  Although in R. v. Wigglesworth, [1987] 2 S.C.R. 541, Wilson J. for the Court wrote that in some circumstances s. 11  could apply in a private matter, she went on (at p. 561):

 

In my opinion, a true penal consequence which would attract the application of s. 11  is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.

 

In support of this statement, Wilson J. cited this comment by Professor Stuart ("Annotation to R. v. Wigglesworth" (1984), 38 C.R. (3d) 388, at p. 389):

 

. . . other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11 (h).  [Emphasis added.]

 

Since the focus of the contempt penalty arising from a civil injunction order is coercion rather than punishment and deterrence, I am of the view that the above considerations cannot apply in the present situation.  Moreover, the word "accused" contained in this section refers in my view to a prosecution, which necessarily goes beyond the purely private setting in which an action for an injunction and a civil contempt proceeding take place.  The same conclusion applies in respect of s. 33.1 of the Charter of Human Rights and Freedoms, which also seems intended to cover legislation of a penal or disciplinary nature (see, for example, Montréal‑Est (Ville de) v. Labrosse, [1985] C.S. 960; Comité ‑‑ Infirmières et infirmiers ‑‑ 8, [1983] D.D.C.P. 295 (Disciplinary Committee); on s. 33 generally:  Contenants Industriels Ltée v. Commission de la santé et de la sécurité du travail du Québec, [1988] R.J.Q. 1345 (Sup. Ct.)).

 

                   As the Chief Justice notes in his reasons, in matters of legislative interpretation, the Court will choose "the interpretation that does not offend the Charter ".  However, in the present situation, I do not feel there is any need for interpretation:  the specific provisions of the Code of Civil Procedure at issue here are part of a private ‑‑ and not a penal or quasi‑penal ‑‑ system.  They are clear and unambiguous.  In the final analysis, their constitutionality is not in dispute.

 

Conclusion

 

                   For all these reasons, I would allow the appeal with costs throughout.

 

                   Appeal dismissed, L'Heureux‑Dubé J. dissenting.

 

                   Solicitors for the appellants:  Langlois, Robert, Montréal.

 

                   Solicitors for the respondents:  Pateras & Iezzoni, Montréal.

 



     *Stevenson J. took no part in the judgment.

     **Sup. Ct. St‑François, No. 450‑05‑000518‑858, August 31, 1989.

 

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