The United Nurses of Alberta went on strike despite knowing that they were forbidden to do so under s. 105(3) of the Alberta Labour Relations Act (now s.71 of the Labour Relations Code). They were warned not to strike before they did and were made aware of the consequences. On two occasions the Attorney General brought charges to court and they were fined twice, $250,000 and $150,000 on successive motions. The union appealled to the Alberta Court of Appeal and was dismissed at which time it appealled to the Supreme Court.
- Does the offence of criminal contempt violate the Charter?
The union argues that the offence of criminal contempt violates s.7 because it is arbitrary and not codified in the Criminal Code. McLachlin, writing for the majority, rejects the argument that it violates s.7 because it is not codified as this is not a requirement of laws. The court agrees that the offence of criminal contempt does create a limitation on one's freedom as it can result in fine or imprisonment, therefore it must be determined if the crime is in line with the fundamentals principles of justice (per s.1 of the Charter).
The appellants argue that the crime is too vague to be in line with the principles of justice. However, McLachlin rejects this and states that there is a very clear line between civil and criminal contempt. In order for contempt to be criminal, it must include an understanding of the violation of a court order and a public depreciation of the order of the court. She says that to be successful in a criminal contempt case, the Crown must establish that the accused defied a court order in a public way (actus reus), and that it was done with intent, knowledge or recklessness as to the fact that the defiance would depreciate the authority of the court (mens rea). Upholding the authority of the court is squarely in line with the principles of fundamental justice.
- A crime does not need to be codified in the Code to have authority in Canada.
- Criminal contempt (of a court order) must be a public defiance of a court order, and must be done with intent of the consequences of the defiance and knowledge that the action would depreciate the court's authority.