b.c.g.e.u. v. british columbia (attorney general), [1988] 2 S.C.R. 214

The British Columbia Government Employees' Union Appellant

v.

The Attorney General of British Columbia Respondent

and

The Attorney General of Canada Intervener

indexed as: b.c.g.e.u. v. british columbia (attorney general)

File No.: 19518.

1988: March 3; 1988: October 20.

Present: Dickson C.J. and Estey*, McIntyre, Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for british columbia

Courts‑‑Jurisdiction‑‑Criminal contempt‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not picketing constituting criminal contempt.

Constitutional law‑‑Charter of Rights‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not injunction denying picketers' s. 7 right to liberty‑‑Whether or not picketers' rights to be informed of specific offence and to be presumed innocent under s. 11(a) and (d) infringed‑‑Whether or not picketers' right to freedom of expression under s. 2 infringed‑‑Canadian Charter of Rights and Freedoms, ss. 2(b), 7, 11(a), (d).

Constitutional law‑‑Division of powers‑‑Criminal law and labour law‑‑Law courts being picketed in course of legal strike‑‑Superior court enjoining picketing‑‑Whether or not legality of picketing placed beyond criminal law because strike lawful and picketing permitted by Labour Code‑‑Constitution Act, 1867, s. 91(27).

Appellant union picketed all law courts in British Columbia in the course of a legal strike and hoped to reduce court activity to matters of urgency. All persons who crossed the picket line, however, were considered to have honoured it if they first obtained a pass from the union. McEachern C.J.S.C. perceived a constitutional duty on his part to keep the law courts open and, on his own motion and ex parte, issued an injunction restraining picketing and other activities calculated to interfere with the operations of any court. The union moved, pursuant to the terms of the concluding paragraph of the order, to have the injunction set aside. McEachern C.J.S.C. dismissed the motion and the British Columbia Court of Appeal unanimously upheld that judgment. The constitutional questions before this Court queried: (1) whether a provincial superior court judge could constitutionally enjoin picketing of court‑houses by a union representing court employees engaged in a lawful strike; (2) whether an enactment by a provincial legislature or by Parliament could validly deprive a judge of a Supreme Court of his inherent authority to protect the functions and processes of his and other courts without an amendment to the Constitution of Canada; (3) whether the order restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringed or denied the rights and freedoms guaranteed by ss. 2(b), (c), 7, 11(a), (c) and (d) of the Canadian Charter of Rights and Freedoms; (4) if so, whether the order was justified by s. 1 of the Charter.

Held: The appeal should be dismissed; the first constitutional question should be answered in the affirmative; the second constitutional question needed not be answered; the third constitutional question should be answered in the affirmative with respect to s. 2(b) of the Charter but in the negative with respect to ss. 7, 11(a) and (d); and the fourth constitutional question should be answered in the affirmative. McIntyre J. would answer the third constitutional question in the negative and find it unnecessary to answer the fourth.

Per Dickson C.J. and Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.: The rule of law is the very foundation of the Charter and the courts are directed to provide a remedy in the event of infringement of the rights guaranteed by the Charter. Those rights would become merely illusory and the entire Charter undermined if access to the courts were to be impeded or denied. The picketing, notwithstanding the picketers' policy of issuing a pass, would inevitably have had the effect of impeding and restricting de facto access to the courts; it could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia.

The picketing of the court‑houses of British Columbia constituted a criminal contempt. It fell within a category of contempt offences which included, amongst others, obstructing persons officially connected with the court or its process and preventing access by the public to courts of law.

The Chief Justice had jurisdiction to enjoin picketing on his own motion and ex parte. The act of picketing, while it did not take place strictly within the court room itself, constituted contempt in the face of the court. Although the motion was made ex parte, careful account was taken of the procedural rights at stake. The appellant Union was expressly given the right to move to have the order set aside and was accorded full rights to present evidence and argument. The Chief Justice did act upon his own observations but the case did not involve contested facts.

While the Labour Relations Board has jurisdiction in relation to what might be described as the labour relations aspect of picketing, the courts retain full authority to deal with violations of civil and criminal law arising from picketing. The order was issued in relation to a criminal contempt and therefore fell within the federal criminal law power and the inherent (or common law) jurisdiction of the courts to punish for contempt. Striking court employees must obey the law in relation to criminal contempt. The legality of all aspects of picketing was not put beyond the reach of the criminal law or criminal contempt simply because the strike was lawful and the Labour Code permitted picketing in the course of a lawful strike.

Even if the effect of the injunction were to deny the Union members' right to liberty protected by s. 7, the denial of that right was fully in accordance with the principles of fundamental justice. An injunction does not violate s. 7 of the Charter solely because it was granted ex parte: circumstances can exist where the delay necessary to give notice might result in an immediate and serious violation of rights. Here, the order constituted a minimal interference with the procedural rights of those whose course of action could only result in a massive disruption of the courts' activities and consequent interference with the legal and constitutional rights of all citizens of British Columbia.

The claims arising under s. 11(a) and (d) failed because no one was charged with an offence and no penal sanction was imposed upon any offender. There was no need to notify of an offence when no one was charged with a specific offence. Similarly, the right to be presumed innocent until proven guilty was not violated as no finding of guilt had been made. The proceedings were fair and the requirement of an independent and impartial tribunal was met for the very purpose of the order was to protect that right.

Peaceful picketing in the context of a labour dispute contains an element of expression protected by s. 2(b). Apart from the Charter, however, the picketing was unlawful. The issue of whether the law of criminal contempt and the injunction to enforce the law pass scrutiny under the Charter must be dealt with pursuant to s. 1.

Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" and relates to a concern which is "pressing and substantial in a free and democratic society". The means taken to accomplish that objective satisfied the three‑step proportionality test. First, there was a rational connection between the injunction and the objective of ensuring unimpeded access to the courts. Second, the injunction accomplished this objective by impairing as little as possible the s. 2(b) rights of the members of the Union for the Union and its members were free to express themselves in other places and in other ways so long as they did not interfere with the right of access to the courts. Finally, there was a proportionality between the effects of the injunction on the protected right and the objective of maintaining access to the courts. The injunction was to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected.

Per McIntyre J.: What was enjoined by the court order was conduct calculated to interfere with court processes and to restrict or limit access to the courts, conduct clearly unlawful and calculated to interfere with and restrict the constitutionally protected rights of others. The making of the injunction therefore involved no infringement of any constitutionally protected right of the appellant. There was no need to balance conflicting rights here. Resort to s. 1, which can only have application where there has been an infringement of a Charter right, was unnecessary.

Cases Cited

By Dickson C.J.

Considered: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; referred to: Re Johnson (1887), 20 Q.B.D. 68; Golder v. United Kingdom (1975), 1 E.H.R.R. 524; Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200; Heather Hill Appliances Ltd. v. McCormack, 1965 CanLII 330 (ON SC), [1966] 1 O.R. 12; Morris v. Crown Office, [1970] 1 All E.R. 1079; R. v. Hill (1976), 1976 CanLII 1091 (BC CA), 73 D.L.R. (3d) 621; R. v. Froese (1980), 1980 CanLII 428 (BC CA), 23 B.C.L.R. 181; Ex parte Tubman; Re Lucas, [1970] 3 N.S.W.R. 41; Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273; R. v. Davies, [1906] 1 K.B. 32; Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516; Foothills Provincial General Hospital Board v. Broad (1975), 1975 CanLII 988 (AB SCTD), 57 D.L.R. (3d) 758; Churchman v. Joint Shop Stewards' Committee of the Workers of the Port of London, [1972] 3 All E.R. 603; Con‑Mech (Engineers) Ltd. v. Amalgamated Union of Engineering Workers, [1973] I.C.R. 620; R. v. United Fishermen and Allied Workers' Union (1967), 1967 CanLII 555 (BC CA), 63 D.L.R. (2d) 356; Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283; McKeown v. The Queen, 1971 CanLII 194 (SCC), [1971] S.C.R. 446; Better Value Furniture (CHWK) Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1981), 1981 CanLII 397 (BC CA), 26 B.C.L.R. 273 (B.C.C.A.) (leave to appeal to the Supreme Court of Canada refused, [1981] 2 S.C.R. viii); Attorney‑General of Quebec v. Laurendeau (1982), 1982 CanLII 2986 (QC CS), 145 D.L.R. (3d) 526, 33 C.R. (3d) 40; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

By McIntyre J.

RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, Preamble, ss. 1, 2(b), (c), 7, 11(a), (c), (d), 24(1).

Constitution Act, 1867, s. 91(27).

Constitution Act, 1982, s. 52(1).

Criminal Code, R.S.C. 1970, c. C‑34, s. 8, as am.

Labour Code, R.S.B.C. 1979, c. 212.

Authors Cited

Borrie, Sir Gordon. Borrie and Lowe's Law of Contempt, 2nd ed. By Nigel Lowe; consultant editor, Sir Gordon Borrie. London: Butterworths, 1983.

Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.

Jowitt, William Allen, 1st Earl. Jowitt's Dictionary of English Law, 2nd ed., vol. 1. By Earl Jowitt and Clifford Walsh. Second edition by John Burke. London: Sweet and Maxwell, 1977.

McRuer, Hon. J. C. "Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual" (1952), 30 Can. Bar Rev. 225.

Miller, C. J. Contempt of Court. London: Paul Elek, 1976.

Weiler, Paul. Reconcilable Differences. Toronto: Carswells, 1980.

APPEAL from a judgment of the British Columbia Court of Appeal (1985), 1985 CanLII 143 (BC CA), 64 B.C.L.R. 113, 20 D.L.R. (4th) 399, [1985] 5 W.W.R. 421, dismissing an appeal from a judgment of McEachern C.J.B.C. (1983), 1983 CanLII 594 (BC SC), 48 B.C.L.R. 1, 2 D.L.R. (4th) 705, [1984] 1 W.W.R. 399, 40 C.P.C. 116, dismissing a motion to set aside or vary an injunction made on his own motion and ex parte, 1983 CanLII 572 (BC SC), [1983] 6 W.W.R. 640. Appeal dismissed; the first constitutional question should be answered in the affirmative; the second constitutional question needed not be answered; the third constitutional question should be answered in the affirmative with respect to s. 2(b) of the Charter but in the negative with respect to ss. 7, 11(a) and (d); and the fourth constitutional question should be answered in the affirmative. McIntyre J. would answer the third constitutional question in the negative and find it unnecessary to answer the fourth.

David Blair, for the appellant.

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

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

The judgment of Dickson C.J. and Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ. was delivered by

1. The Chief Justice‑‑This case involves the fundamental right of every Canadian citizen to have unimpeded access to the courts and the authority of the courts to protect and defend that constitutional right.

I

Facts

2. On the morning of November 1, 1983, as a result of strike action by the appellant British Columbia Government Employees Union (the Union) pickets were posted at the entrances to and within the precincts of, the courts of justice in Vancouver and at all other courts of justice in the province of British Columbia. The strike came at a time of the year when all the courts of the province were in session. The situation, as McEachern C.J.S.C. observed, was indeed urgent with trials, appeals and chambers due to start that morning in many locations throughout the province. Some of these cases were criminal and civil jury trials, and persons were in custody. Counsel, witnesses and jurors were or should have been en route to the court‑houses. The position of the appellant Union was clearly set out in an affidavit of its director of membership services: "The Union hopes that people will support the Union by honouring the picket line. Honouring the picket line in every instance involves people exercising their right and freedom not to cross it. The Union recognizes that persons who cross only upon obtaining a pass have nevertheless honoured the line and thereby supported the Union in the dispute." The appellant did issue "picket passes" whereby it purported to authorize people, including officers of the court, to pass through the picket lines.

3. The circumstances surrounding the passes were described in an affidavit of Ronald Fratkin, a member of the Law Society of British Columbia, which reads in part:

4. On or about Wednesday, October 19, 1983, I and several other members of an ad hoc committee of the Criminal Justice Section of the Canadian Bar Association met in Vancouver, British Columbia with Mr. Jack Adams, an officer of the British Columbia Government Employees' Union, to discuss the potential impact of a possible strike by this Union upon court services in the Province.

5. At the October 19, 1983 meeting Mr. Adams expressed the Union's concern about persons in custody and the impact of a strike upon such persons.

6. At the same meeting Mr. Adams indicated that if there were a strike followed by picketing of courthouses, passes would be issued by the Union to assist in providing lawyers to act in Court as duty counsel to deal with people in custody, including assistance at show cause hearings.

7. On Monday, October 31, 1983, when it became clear that a strike by the Union was indeed imminent, I telephoned Mr. Adams [sic] office. At 1:39 p.m. the same afternoon Mr. Adams' office left a message at my office confirming that two duty counsel passes would be issued for 222 Main Street, Vancouver. At approximately 2:15 p.m. that afternoon my office also received a telephone call from the picket captain (known to me as Becky) for 222 Main Street, Vancouver, requesting that Duty Counsel report to her on the morning of November 1, 1983 to receive the passes.

8. Accordingly, I discussed the problem with the picket captain at the Provincial Court at 222 Main Street, Vancouver. Shortly after, I was advised by the picket captain that she had communicated with Union headquarters and had received immediate approval to facilitate the appearance of two duty counsel at the Law Courts at 800 Smithe Street, Vancouver.

9. While outside the Courthouse at 222 Main Street, Vancouver, during the morning of November 1, 1983 I had occasion to observe that the British Columbia Government Employees' Union picket line was orderly and peaceful. Persons appearing to have business inside the Courthouse entered and left the building at will and at no time appeared to be impeded in any way by the picketers.

Leaflets were distributed by a group known as the British Columbia Law Union urging members of the public who approached the court‑house to respect the picket line and to encourage lawyers not to cross it except with the approval of the union upon the issuance of a picket pass. In a letter written to McEachern C.J.S.C., a member of the Law Union requested that the courts be closed, and that all civil and criminal procedures be adjourned "other than for clear emergency situations as may be agreed upon with the B.C.G.E.U. and Operation Solidarity". The Chief Justice in response said that he had a constitutional duty to keep the courts open, not to close them.

4. The Chief Justice arrived at the Court‑house at 8:00 a.m. and on his own motion and ex parte issued an injunction in the following terms:

On the Court's own motion, ex parte, THIS COURT ORDERS that all persons having notice of this Order are restrained and an injunction is hereby granted restraining them until further Order from:

(a) gathering, congregating or picketing at the entrances to the Law Courts of the Provincial, County, Supreme, or Appeal Courts of British Columbia or within the precincts of the said Courts; or

(b) from engaging in any activities whatsoever which are calculated to interfere with the operations of any Court of Justice in the province or to restrict or limit access of all persons to the Courts and their precincts.

For greater certainty IT IS FURTHER ORDERED that this injunction shall extend to and include all those locations within the province where Courts of Justice are situate in buildings where other activities are also carried on, but any persons affected by this Order may apply on 24 hours' notice in writing to the Registrar for directions with respect to such locations.

IT IS FURTHER ORDERED that any person affected by this Order may apply on 24 hours' notice in writing to the Registrar of this Court at Vancouver for an Order setting aside or varying this Order.

5. The order was served on the picketers at the Vancouver Court‑house about 9:30 and 10:10 a.m. and at various later times that day at other court‑houses. It was universally obeyed.

6. The Union moved, pursuant to the terms of the concluding paragraph of the Order, to have the injunction set aside. The application was supported by the Law Union and was resisted by the Attorney General of British Columbia. McEachern C.J.S.C. dismissed the motion in written reasons delivered on November 10, 1983. The Union appealed to the British Columbia Court of Appeal and that appeal was dismissed by unanimous judgment on June 27, 1985.

7. The Union sought and obtained leave to appeal to this Court. The following constitutional questions were stated:

8. Does a provincial superior court judge have the constitutional jurisdiction to make an order enjoining picketing of court‑houses by or on behalf of a union representing court employees engaged in a lawful strike?

9. Can an enactment by a provincial legislature or by Parliament validly deprive a judge of a Supreme Court of his inherent authority to protect the functions and processes of his and other courts without an amendment to the Constitution of Canada?

10. Did the order by the Chief Justice of the Supreme Court of British Columbia dated November 1, 1983 restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringe or deny the rights and freedoms guaranteed by ss. 2(b), (c), 7, 11(a), (c) and (d) of the Canadian Charter of Rights and Freedoms?

11. If the order of the Chief Justice of the Supreme Court of British Columbia dated November 1, 1983 restraining picketing and other activities within the precincts of all court‑houses in British Columbia infringes or denies the rights and freedoms guaranteed by ss. 2(b), (c), 7, 11(a), (c) and (d) of the Charter, is the order justified by s. 1 of the Charter and therefore not inconsistent with the Constitutional Act, 1982?

12. The Attorney General of Canada intervened before this Court with respect to questions 1 and 2, taking the position that question 1 should be answered in the affirmative, and that it was not necessary to answer question 2, but that if an answer were to be given, it should be affirmative.

II

Judgments of the British Columbia Courts

Ex parte injunction (reported at 1983 CanLII 572 (BC SC), [1983] 6 W.W.R. 640)

9. McEachern C.J.S.C. framed the issue in the following terms (at p. 641):

The question arises whether it is proper or permissible for anyone, individually or collectively, deliberately or accidentally, or directly or indirectly to interfere with the business of the courts of justice or to interfere with or impede the absolute right of access all citizens have to the courts of justice.

10. The Chief Justice answered that question emphatically in the negative. He noted that in the courts of British Columbia there were literally thousands of cases set for hearing and disposition on a daily basis. Persons in custody had a right to apply for bail, persons awaiting trial were entitled to have their guilt or innocence determined without delay. The British Columbia Supreme Court's responsibility included the writ of habeas corpus, injunctions to prevent damage or loss of rights, the custody and protection of children, the right of occupation of matrimonial homes, the care and protection of disabled and infirm persons, the filing of documents to prevent the loss of a cause of action and a myriad of other matters vitally important to the ordinary citizen. McEachern C.J.S.C. noted as well the vital importance that the courts be open to the public and to the media: "Justice cannot be found behind closed doors or picket lines." He emphasized that the issue was not the personal importance or dignity of judges, but rather the protection and preservation of the institution of the courts of justice themselves. McEachern C.J.S.C. carefully distinguished picketing in connection with private commercial or industrial settings from picketing which interfered with the free and unrestricted access of all persons to the courts. Picketing which fell into the latter category, he held, constituted a contempt of court and, in his view, the court had not only the jurisdiction but, as well, the duty, to defend and protect its authority and the universal availability of its process. He quoted the words of Bowen J. in Re Johnson (1887), 20 Q.B.D. 68 (C.A.):

"What is the principle which we have here to apply? It seems to me to be this. The law has armed the High Court of Justice with the power and imposed upon it the duty of preventing (by direct action) and by summary proceedings any attempt to interfere with the administration of justice."

He concluded with these words: "The rule of law has not been suspended in this province."

Motion to set aside ex parte injunction (reported at (1983), 1983 CanLII 594 (BC SC), 2 D.L.R. (4th) 705)

11. In his subsequent judgment, rendered on November 10, 1983, after affidavit material had been filed by the Union, McEachern C.J.S.C. upheld his original order and gave extensive reasons for doing so. The Chief Justice emphasized the centrality of the courts and the judiciary to our constitution and to the rule of law. He stressed as well the importance of the right of citizens to have unimpeded and uninterrupted access to the courts and the authority of the courts to protect and vindicate that right. McEachern C.J.S.C. said (at pp. 706‑7):

The powers entrusted to the judiciary by the constitution are essential to the proper organization of society because, while common law and the legislative branches of the constitution declare what the rights and obligations of the people are, the judiciary is the machinery which protects and enforces these rights and obligations. For this reason, free, unimpeded and uninterrupted access to the courts of justice of all parties, jurors, witnesses, counsel, court staff and the public is fundamental to the preservation and enforcement of every legal right, freedom and obligation which exists under the rule of law.

12. The Chief Justice carefully reviewed the authorities dealing with criminal contempt and concluded that "Any conduct which is calculated to interfere with the proper administration of justice is criminal contempt of court."

13. It was beyond question, he held, that picketing at a court‑house would have the effect of deterring witnesses, jurors, lawyers and members of the public from entering the court‑house to discharge their duties. While the Union had issued passes to individuals such as duty counsel, permitting them to cross the picket lines, McEachern C.J.S.C. held that neither the Union nor anyone else had the right to approve who should or should not have access to the court and the very thought of licensing anyone to enter the court itself was an affront to freedom.

14. McEachern C.J.S.C. held that the authority of the court to protect its process was in no way pre‑empted by provincial legislation relating to labour disputes or essential services. Recognizing that the circumstances had to be unusual, McEachern C.J.S.C. held that where a criminal contempt threatened to disrupt court proceedings, the court had the authority to move ex mero motu in order to maintain the proper administration of justice. He held that as he had direct knowledge of the facts from observation upon entering the court‑house and, in view of the urgency of the situation, he did have authority to issue the injunction in the manner in which he had.

15. The Chief Justice cited examples of important court matters which could not have been carried on behind a picket line (at pp. 713‑14):

In New Westminster Toy J. was able to continue a most difficult case and McKenzie J. was able to commence and complete the tragic case of R. v. Blackman where a young man was found not guilty by reason of insanity on a charge of murdering six members of his family; Trainor J. continued a difficult murder trial in Cranbrook; Davies J. held a criminal assize at Prince Rupert; Callaghan J. held a civil assize at Nanaimo; Lander, Finch and Wood JJ. were able to commence or continue jury trials in Vancouver; and all the other busy work of this court at Vancouver was carried on. The County Court of Vancouver was able to carry on its usual work as well as complete jury selections in criminal cases involving the attendance of upwards of 460 jurors; and, so far as I know, most of the work of all courts in most locations of the province was carried on.

There are many other examples too numerous to mention which demonstrate beyond any rational possibility of doubt that a picket line at a court‑house does in fact obstruct the proper administration of justice.

16. The Chief Justice noted that the order which he had made only precluded picketing. It did not purport to require the staff of the courts to resume the discharge of their duties. When the Union commenced the strike at midnight on October 31, 1983 against the Government of British Columbia the services of all government employees were withdrawn except certain excluded supervisory personnel and some who were required for the performance of essential services. Those withdrawn from service included all the staff (except supervisory personnel) of all the courts of justice within the province.

British Columbia Court of Appeal (reported at (1985), 1985 CanLII 143 (BC CA), 20 D.L.R. (4th) 399)

17. The decision of McEachern C.J.S.C. was affirmed by a unanimous judgment of the British Columbia Court of Appeal. Nemetz C.J.B.C. characterized the issue as follows (at p. 401):

...the real issue before us is whether in a democratic society any person or bodies of persons can restrict the rights of its citizens to enjoy the benefits of the rule of law under the protection of an independent judiciary.

18. Nemetz C.J.B.C. emphasized the constitutional importance of the independence of the judiciary and of its right and duty to maintain the rule of law and the Constitution by guaranteeing unimpeded access to the courts. The Chief Justice had little doubt that the installation of a picket line surrounding the court‑house would impede access (at pp. 402‑3):

...a picket line, in British Columbia, triggers in its citizens an almost universal and automatic response not to cross it. Whether caused by trade union ethic or fear of reprisal for crossing a picket line, the response of not crossing the picket line has been described by Dr. Weiler [in Reconcilable Differences (1980, Carswells Co. Ltd.) at p. 79] as Pavlovian in nature. Thus when a picket line is established at the entrance to a court‑house, access is effectively impaired.

19. The Chief Justice went on to hold that there was undoubted inherent jurisdiction to issue an injunction to prevent conduct clearly calculated to obstruct and interfere with the due course of justice. In his view, the very fact that the Union issued picket passes demonstrated its intention to impede entry to the courts of those persons who were not accorded such passes.

20. Nemetz C.J.B.C. noted that nowhere in McEachern C.J.S.C.'s order was there any suggestion of contempt on the part of those members of the court‑house staff who, being on a legal strike, withdrew their services. The injunction was directed to the picketing. The dispute had nothing to do with the courts. It was a dispute that the Union had with the provincial government.

21. While the Charter issue was apparently not raised before McEachern C.J.S.C., reference to s. 2(b) and (c) was made in argument before the British Columbia Court of Appeal. Nemetz C.J.B.C. noted that the matter was not fully argued, but held that even assuming that the injunction had infringed Charter rights, such infringement could be demonstrably justified under s. 1, as the Charter itself would become an illusion if the public were to be denied access to the courts.

22. Section 2(b) and (c) of the Charter read:

23. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; . . .

23. Before considering picketing and its effects and the law of contempt, I must advert to the Canadian Charter of Rights and Freedoms which plays a role of superordinate importance in this appeal.

III

The Canadian Charter of Rights and Freedoms

24. The Union is advancing certain Charter arguments in the present proceedings. I will deal with those arguments shortly. For the moment I wish to highlight certain sections of the Charter which, it seems to me, are a complete answer to anyone seeking to delay or deny or hinder access to the courts of justice in this country. Let us look first at the preamble to the Charter. It reads: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". So we see that the rule of law is the very foundation of the Charter. Let us turn then to s. 52(1) of the Constitution Act, 1982 which states that the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Earlier sections of the Charter assure, in clear and specific terms, certain fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights of utmost importance to each and every Canadian. And what happens if those rights or freedoms are infringed or denied? Section 24(1) provides the answer‑‑anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The rights and freedoms are guaranteed by the Charter and the courts are directed to provide a remedy in the event of infringement. To paraphrase the European Court of Human Rights in Golder v. United Kingdom (1975), 1 E.H.R.R. 524, at p. 536, it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. As the Court of Human Rights truly stated: "The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings". And so it is in the present case. Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined.

25. There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Counsel for the Attorney General of British Columbia posed this question:

By what authority and on what criteria were the Union leaders deciding who were to be given passes and who were to be denied them?

I cannot believe that the Charter was ever intended to be so easily thwarted.

26. I would adopt the following passage from the judgment of the British Columbia Court of Appeal (at p. 406):

We have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. It is the preservation of that right with which we are concerned in this case. Any action that interferes with such access by any person or groups of persons will rally the court's powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category.

IV

Picketing and its Effects

27. Picketing is a crucial form of collective action in the arena of labour relations. A picket line is designed to publicize the labour dispute in which the striking workers are embroiled and to mount a show of solidarity of the workers to their goal. It is an essential component of a labour relations regime founded on the right to bargain collectively and to take collective action. It represents a highly important and now constitutionally recognized form of expression in all contemporary labour disputes. All of that is beyond dispute. In Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200, a majority of this Court stated at p. 219:

Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing, but the right has been exercisable in some locations and not in others . . . .

28. On the other hand, and this is crucial, both courts below have found that the picketing would inevitably have had the effect of impeding and restricting access to the courts. There surely can be little doubt as to the correctness of that conclusion. The very purpose and intent of the picket line in a labour dispute is to discourage and dissuade individuals from entering the premises which are being picketed. This is clear from the affidavit material filed by the appellant Union. One of the great strengths of the trade union movement is the spirit of solidarity. By standing together as a collective whole, trade unionists are able to aspire to improved wages and working conditions unattainable if each individual member were left to his or her own devices. Solidarity is made manifest when one group of workers is on strike. Fellow unionists and other sympathetic members of the public are made aware of the strike by the presence of picketers. Picketing sends a strong and automatic signal: do not cross the line lest you undermine our struggle; this time we ask you to help us by not doing business with our employer; next time, when you are on strike, we will respect your picket line and refuse to conduct business with your employer.

29. A picket line ipso facto impedes public access to justice. It interferes with such access and is intended to do so. A picket line has great powers of influence as a form of coercion. As Stewart J. said in Heather Hill Appliances Ltd. v. McCormack, 1965 CanLII 330 (ON SC), [1966] 1 O.R. 12 (Ont. H.C.), at p. 13:

The picket line has become the sign and symbol of trade union solidarity and gradually became a barrier‑‑intangible but none the less real. It has now become a matter of faith and morals and an obligation of conscience not to breach the picket line and this commandment is obeyed not only by fellow employees of the picketers but by all true believers who belong to other trade unions which may have no quarrel at all with the employer who is picketed.

30. Both judgments below refer to Paul Weiler's book, Reconcilable Differences, which summarizes the purpose and effect of a picket line in the province of British Columbia. At page 79, Dr. Weiler notes:

The crucial variable determining the impact of peaceful picketing is whether it is addressed to unionized workers. That kind of picket line operates as a signal, telling union members not to cross. Certainly in British Columbia the response is automatic, almost Pavlovian. That response is triggered by a number of factors: the sense of solidarity among members of the general trade‑union movement; an appreciation that it is in the self‑interest of each to honour the other fellow's picket line because in their own dispute they will want the same reaction from other workers; a concern for the social pressures and ostracism of other workers if they do not conform to the trade union ethic; the likelihood that they will face serious discipline from their own trade union. It might even cost them their jobs, if they defy that ethic and cross a picket line approved by the trade union movement. In the final analysis, the legal treatment of picketing must rest upon a realistic appraisal of its industrial relations role. The picket line is much more than the simple exercise of a worker's freedom of expression. In a heavily unionized community it is an effective trigger to a work stoppage by a group of employees.

31. Picketing of a commercial enterprise in the context of an ordinary labour dispute is one thing. The picketing of a court‑house is entirely another. A picket line both in intention and in effect, is a barrier. By picketing the court‑houses of British Columbia, the appellant Union, in effect, set up a barricade which impeded access to the courts by litigants, lawyers, witnesses, and the public at large. It is not difficult to imagine the inevitable effects upon the administration of justice. As the judgments of McEachern C.J.S.C. and of Nemetz C.J.B.C. point out, on a daily basis the courts dispose of hundreds of cases in which fundamental rights are at stake. At the very least, the picketing was bound to cause delays in the administration of justice and, as has been often and truly said, justice delayed is justice denied. The picketing would undoubtedly make it difficult, if not impossible, for the courts to process criminal cases with despatch. Any person charged with an offence has the right not to be denied reasonable bail yet potential sureties could have been discouraged from entering the court‑house to satisfy the requirements of a judicial interim release order. An accused has the right to a public trial yet the members of the public not issued passes by the Union might have been deterred from entering the court‑house. Accused persons have a Charter right to a fair trial and a statutory right to make full answer and defence. Witnesses crucial to the defence could well have been deterred from even requesting a pass to enter the court‑house to give vital evidence. It is perhaps unnecessary to multiply the examples. The point is clear. Picketing a court‑house to urge the public not to enter except by permission of the picketers could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia.

V

Contempt of Court

32. The first issue to be addressed, apart from the constitutional aspects of the case, is whether Chief Justice McEachern and the British Columbia Court of Appeal were correct in concluding that the picketing of the court‑houses of British Columbia constitutes a criminal contempt.

33. Chief Justice McRuer of the High Court of Justice of Ontario, in an address to the Lawyers Club, Toronto, entitled "Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual", published (1952), 30 Can. Bar Rev. 225, at p. 226, said:

A contempt may be either a criminal contempt or a civil contempt. The difference between contempts criminal and contempts civil seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in nature, but a contempt in disregarding the orders of a judge of a civil court is not criminal in nature. It is the obstruction or interference with the fair administration of justice within which the law of criminal contempt is concerned, and it has nothing to do with the personal feelings of the judges; it is not a power to be used for the vindication of the judge as a person, and no judge should allow his personal feelings to have any weight in the matter.

34. In Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), Lord Denning noted at p. 1081:

The phrase `contempt in the face of the court' has a quaint old‑fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power‑‑a power instantly to imprison a person without trial‑‑but it is a necessary power. So necessary indeed that until recently the judges exercised it without any appeal.

35. In some instances the phrase "contempt of court" may be thought to be unfortunate because, as in the present case, it does not posit any particular aversion, abhorrence or disdain of the judicial system. In a legal context the phrase is much broader than the common meaning of "contempt" might suggest and embraces "where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court's authority", "interfering with the business of the court on the part of a person who has no right to do so", "obstructing or attempting to obstruct the officers of the Court on their way to their duties"‑‑See Jowitt's Dictionary of English Law, vol. 1, 2nd ed., at p. 441.

36. An intent to bring a court or judge into contempt is not an essential element of the offence of contempt of court. That was decided in R. v. Hill (1976), 1976 CanLII 1091 (BC CA), 73 D.L.R. (3d) 621 (B.C.C.A.) McIntyre J.A., speaking for a unanimous court said at p. 629:

Even, however, if the cases could not be distinguished on their facts, it is my opinion that an intent to bring a Court or Judge into contempt is not an essential ingredient of this offence. In Canada the proposition stated in R. v. Gray, [1900] 2 Q.B. 36 at p. 40, by Lord Russell of Killowen has been accepted. He said:

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.

These words have received the approval of the Supreme Court of Canada in Poje et al. v. A‑G. B.C. (1953), 1953 CanLII 34 (SCC), 105 C.C.C. 311, [1953] 2 D.L.R. 785, [1953] 1 S.C.R. 516, and in Re Duncan (1957), 1957 CanLII 90 (SCC), 11 D.L.R. (2d) 616, [1958] S.C.R. 41. In my view, they express the law as it now stands in this country.

The word "calculated" as used here is not synonymous with the word "intended". The meaning it bears in this context is found in the Shorter Oxford English dictionary as fitted, suited, apt: see Glanville Williams Criminal Law: General Part, 2d ed. (1961), p. 66.

See also R. v. Froese (1980), 1980 CanLII 428 (BC CA), 23 B.C.L.R. 181 (B.C.C.A.)

37. C. J. Miller, Contempt of Court (1976), lists the principal heads of criminal contempt as follows:

38. contempt in the face of the court which involves disruptive or disrespectful behaviour in the courtroom;

39. contempt through infringing the sub judice rule which involves conduct likely to influence the outcome of a trial;

40. scandalizing a court or a justice;

41. victimizing jurors, witnesses and other persons after the conclusion of the proceedings; and

42. publicizing judicial proceedings.

In addition, Miller includes a residual category of contempt offences in which he lumps the following: obstructing persons officially connected with the court or its process, interference with persons under the special protective jurisdiction of the court, breach of duty by persons officially connected with the court or its process, forging, altering or abusing the process of the court, divulging the confidences of the jury room, preventing access by the public to courts of law, service of process in the precinct of the court, and disclosing the identity of witnesses.

38. The branch of contempt that comes close to resembling the problem posed by picketing is the prevention of public access to the courts, which falls within Miller's residual category. Although the Australian case Ex parte Tubman; Re Lucas, [1970] 3 N.S.W.R. 41 (N.S.W.C.A.), Miller cites in support of this category bears no factual similarity to picketing, Aspey J.A. in that case made the following comments (at p. 51):

I have no doubt that, when the proceedings of a court are to be administered as a forum open to the public, any person who, without lawful authority or justification, prevents or attempts to prevent not only parties, their legal representatives or witnesses but also members of the public who are desirous of being present at those proceedings from entering the court or its precincts could be adjudged guilty of contempt of court . . . .

39. Acts which interfere with persons having duties to discharge in a court of justice, including parties, witnesses, jurors and officers of the court, constitute a contempt, see e.g. Borrie and Lowe's Law of Contempt (2nd ed. 1983), pp. 205 et seq; Miller, Contempt of Court (1976), at p. 229. In Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273 (H.L.), at p. 310, Lord Diplock observed that contempt included "conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law . . . ." Such conduct affects not only the particular interests of the parties to the case but also the public interest in the due administration of Justice. Similarly, in Golder v. United Kingdom, supra, at pp. 535‑36, the European Court of Human Rights upheld the right of access to the courts as a fundamental and universally recognized principle.

40. Wills J. in R v. Davies, [1906] 1 K.B. 32, at p. 41, referred to the "great principle" that courts or the administration of justice exist for the benefit of the people, that for the benefit of the people their independence must be protected from unauthorized interference, and that the law provides effective means by which this end can be secured.

41. Conduct designed to interfere with the proper administration of justice constitutes contempt of court which is said to be "criminal" in that it transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole: Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516. It follows that McEachern C.J.S.C. and the British Columbia Court of Appeal correctly concluded that the picketing of the court‑houses of British Columbia constituted a criminal contempt.

Procedural Questions

42. The Union contends that McEachern C.J.S.C. lacked jurisdiction to enjoin picketing on his own motion and ex parte. The action taken by the Chief Justice was admittedly unusual, but so was the situation which confronted him. The case law does hold that the court may in certain instances act ex mero motu. In Poje, supra, an injunction had been issued in a labour dispute. The injunction was disobeyed but the dispute between the immediate parties had been settled and they accordingly had no interest in taking contempt proceedings. This Court held that in certain circumstances, a breach of a court order undermined a court's authority, and that even though the immediate parties chose not to proceed, the court could act on its own. There are many other instances where this authority has been upheld and acted upon: Foothills Provincial General Hospital Board v. Broad (1975), 1975 CanLII 988 (AB SCTD), 57 D.L.R. (3d) 758 (Alta. S.C.); Churchman v. Joint Shop Stewards' Committee of the Workers of the Port of London, [1972] 3 All E.R. 603 (C.A.); Con‑Mech (Engineers) Ltd. v. Amalgamated Union of Engineering Workers, [1973] I.C.R. 620; R. v. United Fishermen and Allied Workers' Union (1967), 1967 CanLII 555 (BC CA), 63 D.L.R. (2d) 356 (B.C.C.A.)

43. The English authorities were reviewed and summarized in Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283 (C.A.), at p. 287 and p. 288, by Lord Denning MR:

Gathering together the experience of the past, then whatever expression is used, a judge of one of the superior courts or a judge of assize could always punish summarily of his own motion for contempt of court whenever there was a gross interference with the court of justice in a case that was being tried, or about to be tried, or just over‑‑no matter whether the judge saw it with his own eyes or it was reported to him by the officers of the court, or by others‑‑whenever it was urgent and imperative to act at once.

This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately‑‑so as to maintain the authority of the court‑‑to prevent disorder‑‑to enable witnesses to be free from fear‑‑and jurors from being improperly influenced‑‑and the like. It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt . . . . But properly exercised, it is a power of the utmost value and importance which should not be curtailed.

44. Similarly, there is ample authority for the issuance of ex parte injunctions in those situations where the delay necessary to give notice to the party sought to be enjoined will entail the irreparable loss of rights. McEachern C.J.S.C. faced such a situation on the morning of November 1, 1983. It was, as I have said, a normal working day for the courts and if the courts were to carry on with important matters, immediate and decisive action was called for. It was, in the words of Lord Denning "urgent and imperative to act at once".

45. Although the act of picketing did not take place strictly within the court room itself, the courts of British Columbia found, correctly in my view, that it constituted contempt in the face of the court. The picketing was within the immediate precincts of the court‑houses, obvious to all who approached the courts, including the Chief Justice as he entered the Vancouver court‑house that day, and it was directed against the immediate activity taking place in the courts. In the Balogh case, supra, the English Court of Appeal confirmed that the summary power to deal with contempt could be exercised even though the activity in question did not take place immediately within the court room. See also McKeown v. The Queen, 1971 CanLII 194 (SCC), [1971] S.C.R. 446.

46. McEachern C.J.S.C. acted ex parte, but it should also be noted that he took careful account of the procedural rights at stake. The appellant Union was expressly given the right to move to have the order set aside and this, of course, happened within two days of the original order. At that time, full rights to present evidence and argument were accorded to the Union. While the Chief Justice acted upon his own observations, the case did not involve contested facts. The argument on the motion to set aside centred upon applicable legal principles. No one was convicted of contempt and no penalty was imposed. The effect of the order was really to put the Union and its members on notice that their conduct constituted a contempt and that if it continued, penalties would be imposed in the future. If the injunction had been disobeyed, and if charges of contempt had been brought, it would have been necessary to invoke the usual procedures and to respect the safeguards available to anyone charged with a criminal contempt. But that was not the situation confronting McEachern C.J.S.C. on the morning the picket lines were set up. As Chief Justice, he had the legal constitutional right and duty to ensure that the courts of the province would continue to function. His action went no further than that which was necessary to ensure respect for that most important principle.

VI

Labour Legislation

47. The Union contends that the Labour Code, R.S.B.C. 1979, c. 212, confers exclusive jurisdiction to enjoin any picketing in connection with a labour dispute upon the Labour Relations Board of British Columbia.

48. As the judgments already delivered in this matter point out, both the Labour Relations Board and the courts of British Columbia have held that while the Board does have jurisdiction in relation to what might be described as the labour relations aspect of picketing, the courts retain full authority to deal with violations of civil and criminal law arising from picketing.

49. It is well established that the courts have the jurisdiction to defend their own authority. This jurisdiction is inherent in the very idea of a court. It is admirably summarized by I. H. Jacob in "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23, at pp. 27‑28:

For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life‑blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.

50. In Better Value Furniture (CHWK) Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1981), 1981 CanLII 397 (BC CA), 26 B.C.L.R. 273 (B.C.C.A.), (leave to appeal to the Supreme Court of Canada refused, [1981] 2 S.C.R. viii), Nemetz C.J.B.C., speaking for the majority, said at p. 276:

A difficult question of law is thus raised, which can only be answered by examining the apposite sections of the Labour Code. It is to be remembered that the Code came into being in 1973, and had the effect, inter alia, of transferring from the courts to the labour board the jurisdiction to deal with provincial labour disputes. As a consequence of this enactment, it was inevitable that litigation would ensue in order to delineate the borders of jurisdiction of the courts vis‑a‑vis the board. One of the first suits had to do with the jurisdiction of the board to prohibit picketing which forcibly cut off an employer from its mine property. The board found that it had no jurisdiction to restrain this forcible aspect of picketing. The board concluded that it had exclusive jurisdiction over the industrial relations regulation of picketing, such as its object, timing, and location, while the courts retained jurisdiction over violations of the general law, both civil and criminal, occurring in the course of picketing (Canex Placer Ltd. v. C.A.I.M.A.W., [1975] 1 C.L.R.B.R. 269). This position has been adopted, correctly, in my opinion, by the Supreme Court of British Columbia in several decisions: All‑town Const. Ltd. v. United Brotherhood of Carpenters and Joiners of Amer., Loc. 1598, McKay J., 1976 (unreported); Central Native Fishermen's Co‑op. v. B.C. Prov. Council, 1975 CanLII 1555 (BC SC), [1975] 6 W.W.R. 699, 76 C.L.L.C. 14,040, 1975 CanLII 1096 (BC SC), 61 D.L.R. (3d) 677 (B.C.) (per Toy J.); Alcan Smelters & Chemicals Ltd. v. Can. Assn. of Smelter & Allied Wkrs., Loc. 1 (1977), 1977 CanLII 359 (BC SC), 3 B.C.L.R. 163 (S.C.) (per Macfarlane J.); Miko & Sons Logging Ltd. v. Penner, 1976 CanLII 1490 (BC SC), [1976] 4 W.W.R. 756, 77 C.L.L.C. 14,063 (per McKay J.); and Pitura v. Lincoln Motors (1978), 1978 CanLII 315 (BC SC), 9 B.C.L.R. 77, 94 D.L.R. (3d) 421 (sub nom, Pitura v. Lincoln Manor Ltd.) (S.C.) (Per Munroe J.).

51. Then, after referring to Labour Code, s. 28, Nemetz C.J.B.C. said at pp. 278‑79:

A propos s. 28, it is manifest that a "matter" cannot be the subject of a complaint unless it contravenes the Labour Code, a collective agreement or the regulations. In respect of s. 31 the same situation obtains: "...the board has and shall exercise exclusive jurisdiction to hear and determine an application or complaint under this Act" (the italics are mine). This clearly shows that the board's jurisdiction is confined to hearing applications or complaints coming under the Labour Code. Conversely, it follows that there is jurisdiction in the court to consider any matter that does not involve contraventions of the Labour Code, a collective agreement or the regulations. This interpretation is supported by the general scheme of the Act which establishes limits to the extent of the board's jurisdiction, e.g., s. 32(4), which provides that the board's consent to an action for damages is required only in a case where the injury or losses arise as a consequence of conduct contravening the Code. Even s. 33, granting the board jurisdiction to determine the extent of its own jurisdiction, is limited to its jurisdiction "under this Act, a collective agreement or the regulations". This action for damages is brought against the union for inducing breach of contract by interfering with the contractual relations between the non‑allied distributor and Better Value. It is an action in tort, the merits of which can be determined independently of finding a breach of the Code, its regulations or a collective agreement.

52. Counsel for the Attorney General of Canada submitted:

(7) The fact the order was issued in relation to a criminal contempt brings it within the federal jurisdiction under head 91(27) of the Constitution Act, 1867, relating to criminal law and procedure.

(8) The inherent (or common law) jurisdiction of the courts to punish for contempt is preserved by s. 8 of the Criminal Code, R.S.C. 1970, c. 34 [sic], as amended.

(9) Control of labour relations of provincial court employees is prima facie within provincial legislative jurisdiction . . . .

53. I agree with counsel's three submissions. Striking court employees, as anyone else, must obey the law in relation to criminal contempt, just as they are subject to the legislated offences in the Criminal Code. To argue, as the Union does, that striking court employees are not controllable by the federal criminal power in this sense is to suggest that they can ignore the criminal law with impunity, simply because their labour relations are governed by provincial labour legislation.

54. The Union also contends that as the strike was lawful, and as the Labour Code permits picketing in the course of a lawful strike, the legality of all aspects of picketing is put beyond the reach of the criminal law or criminal contempt. This sweeping proposition cannot be accepted. The Labour Code covers picketing from the aspect of labour relations only. It does not confer a blanket immunity upon picketers, whatever laws they break. Although lawful for labour relations purposes, picketing which restricts access to the courts is not relieved of being classified as criminal under the law of contempt.

VII

The Charter Claims of the Union

55. The Charter arguments advanced by the Union apparently did not figure large in the courts below. As I have indicated, they are not referred to in the reasons of McEachern C.J.S.C. and although brief mention is made of the Charter in the reasons of Nemetz C.J.B.C., only s. 2(b) and (c) are alluded to. Before this Court, constitutional questions were stated and reliance was placed on ss. 7, 11(a), (c) and (d), as well as s. 2(b) and (c). The Union, however, expressly abandoned any reliance on s. 11(c) and made no submissions on s. 2(c). It remains therefore to consider ss. 2(b), 7, 11(a) and (d).

56. As a preliminary matter, one must consider whether the order issued by McEachern C.J.S.C. is, or is not, subject to Charter scrutiny. RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, holds that the Charter does apply to the common law, although not where the common law is invoked with reference to a purely private dispute. At issue here is the validity of a common law breach of criminal law and ultimately the authority of the court to punish for breaches of that law. The court is acting on its own motion and not at the instance of any private party. The motivation for the court's action is entirely "public" in nature, rather than "private". The criminal law is being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter. At the same time, however, this branch of the criminal law, like any other, must comply with the fundamental standards established by the Charter.

Section 2(b)‑‑Freedom of Expression

57. This Court has held that picketing in the context of a labour dispute contains an element of expression which attracts the protection of s. 2(b): Dolphin Delivery, supra, at p. 586 and p. 588:

The question now arises: Is freedom of expression involved in this case? In seeking an answer to this question, it must be observed at once that in any form of picketing there is involved at least some element of expression. The picketers would be conveying a message which at a very minimum would be classed as persuasion, aimed at deterring customers and prospective customers from doing business with the respondent. The question then arises. Does this expression in the circumstances of this case have Charter protection under the provisions of s. 2(b), and if it does, then does the injunction abridge or infringe such freedom?

The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.

58. The picketing in the circumstances of the case at bar was peaceful and there were no threats of violence or acts of violence, nor was there any destruction of property. What is at issue is the right of the Union and its members to urge members of the public not to enter the court‑house. It is true that apart from the Charter, for the reasons just given, the picketing was unlawful. In Dolphin Delivery, the picketing was also unlawful in that it constituted the tort of inducing breach of contract. The Court held that the constitutional validity of an injunction to restrain commission of that tort had to be determined pursuant to the analysis required under s. 1 of the Charter. The issue here is whether the law of criminal contempt and the injunction to enforce the law pass scrutiny under the Charter, and it follows from Dolphin Delivery that this issue must be dealt with pursuant to s. 1.

59. Before considering this issue, I will canvass the other Charter rights alleged to have been infringed.

Section 7

60. Section 7 of the Charter provides:

61. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

62. Assuming for the purposes of the argument that the effect of the injunction was to deny the Union members' right to liberty protected by s. 7, the denial of that right was fully in accordance with the principles of fundamental justice. While ex parte injunctions are the exception rather than the rule, it is well‑established that a judge does have the discretion to make such an order in appropriate circumstances. An injunction plainly does not violate s. 7 of the Charter solely because it was granted ex parte. Where the circumstances are such that the delay necessary to give notice might result in an immediate and serious violation of rights, an ex parte injunction may be issued. The effect of the injunction was to put the appellants on notice that their conduct was unlawful and that it would be sanctioned if it continued. In the circumstances, the order of McEachern C.J.S.C. constituted a minimal interference with the procedural rights of those who had set out on a deliberate course of action which could only result in a massive disruption of the activities of the courts and consequent interference with the legal and constitutional rights of all citizens of British Columbia. Given that context, it can hardly be said that the order violated fundamental justice.

Section 11(a) and (d)

62. Section 11(a) and (d) provide as follows:

63. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

63. At no stage in the entire history of this matter has there been anyone charged with an offence nor has any penal sanction been imposed upon any offender. In Attorney‑General of Quebec v. Laurendeau (1982), 1982 CanLII 2986 (QC CS), 145 D.L.R. (3d) 526, 33 C.R. (3d) 40 (Que. S.C.), at p. 528, Rothman J. said:

(translation) I am not convinced, however, that the summary motion for contempt presented by the Crown in the case at bar constitutes a charge or that the contempt referred to in the motion constitutes an offence within the meaning of s. 11(f) of the Charter.

The exercise by a superior court of criminal jurisdiction of contempt of court powers is merely an aspect of the exercise of inherent powers essential to the administration of justice in any criminal case.

In exercising these inherent powers the court is not accusing a person of having committed an offence within the ordinary meaning of that word.

64. Had the injunction been disobeyed and had proceedings been taken against an individual for such disobedience, then obviously at that stage, the ordinary procedural guarantees would apply. However, the matter never reached that position and no charges were ever made. On this aspect alone, the claims arising under s. 11(a) and (d) fail.

65. It is true, as stated, that McEachern C.J.S.C.'s original order was ex parte and that no notice was given to the picketers, nor were they afforded an opportunity to be heard. Had McEachern C.J.S.C. imposed immediate fines or jail sentences at that stage, a s. 11(a) claim might well have arisen. However, there can be no violation of s. 11(a) when no person was charged with a specific offence and, hence, there was no one to notify of such offence.

66. With reference to s. 11(d), there was no violation of the right to be presumed innocent until proven guilty as no finding of guilt has been made against any individual. For the reasons given under s. 7, the proceedings were fair within the meaning of s. 11(d). As for the requirement of an independent and impartial tribunal, the very purpose of McEachern C.J.S.C.'s order was to protect that important right. It would be strange indeed if the Charter claims of the members of the appellant Union, all standing outside the court‑house, not charged with any offence and not facing any threat of immediate imprisonment, were to prevail to the detriment of the Charter rights of those within the court‑house awaiting bail hearings and trials.

Section 1

67. It follows from the foregoing that the s. 2(b) claim falls to be decided under s. 1. Freedom of expression protected by s. 2(b) of the Charter is obviously a highly valued right as is the individual liberty reflected in a modern democratic society by the right to strike and the right to picket. A balance must be sought to be attained between the individual values and the public or societal values. In the instant case, the task of striking a balance is not difficult because without the public right to have absolute, free and unrestricted access to the courts the individual and private right to freedom of expression would be lost. The greater public interest must be considered when determining the degree of protection to be accorded to individual interests.

68. As already indicated, the picketing constituted a deliberate course of conduct which could only result in massive disruption of the court process of British Columbia, and the consequential interference with the legal and constitutional rights of Canadian citizens. Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 352) and relates to a concern which is "pressing and substantial in a free and democratic society" (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 138‑139). The means taken by McEachern C.J.S.C. to accomplish that objective satisfy the three‑step proportionality test established by this Court in Oakes.

69. First, there is a rational connection between the injunction and the objective of ensuring unimpeded access to the courts.

70. Second, the injunction accomplished this objective by impairing as little as possible the s. 2(b) rights of the members of the Union. The evidence indicated that if the picketing of court‑houses continued, access would have been impeded. The injunction left the Union and its members free to express themselves in other places and in other ways so long as they did not interfere with the right of access to the courts.

71. Finally, there was a proportionality between the effects of the injunction on the protected right and the objective of maintaining access to the court. The injunction, it is important to recall at this stage, was not intended to vindicate the dignity of the court or the judges but rather to maintain access to the institution in our society directly charged with responsibility of ensuring respect for the Charter. A significant element therefore of the objective of the injunction order was to protect Charter rights. The Charter surely does not self‑destruct in a dynamic of conflicting rights. The remarks of Salmon L.J. in Morris v. Crown Office, supra, at pp. 1086‑87, although not made with reference to an entrenched constitutional right, are still apposite. The appellants had been found in contempt for having disrupted a trial to which they were not parties by staging a protest, shouting slogans and scattering pamphlets:

Everyone has the right publicly to protest against anything which displeases him and publicly to proclaim his views, whatever they may be. It does not matter whether there is any reasonable basis for his protest or whether his views are sensible or silly. He can say or write or indeed sing what he likes when he likes and where he likes, providing that in doing so he does not infringe the rights of others. Every member of the public has an inalienable right that our courts shall be left free to administer justice without obstruction or interference from whatever quarter it may come. Take away that right and freedom of speech together with all the other freedoms would wither and die, for in the long run it is the courts of justice which are the last bastion of individual liberty. The appellants, rightly or wrongly, think that they have a grievance. They are undoubtedly entitled to protest about it, but certainly not in the fashion they have chosen. In an attempt, and a fairly successful attempt, to gain publicity for their cause, they have chosen to disrupt the business of the courts and have scornfully trampled on the rights which everyone has in the due administration of justice; and for this they have been very properly punished, so that it may be made plain to all that such conduct will not be tolerated‑‑even by students. [Emphasis added.]

72. While the injunction limited the s. 2(b) Charter rights of the members of the Union, that limitation was wholly proportional to the objective of the order, namely, to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected.

VIII

Conclusion

73. In the result, I would dismiss the appeal and answer the constitutional questions as follows:

Question 1:

Answer: A provincial superior court judge does have the constitutional jurisdiction to make an order enjoining picketing of court‑houses by or on behalf of a union representing court employees engaged in a lawful strike.

Question 2:

Answer: It is not necessary to answer this question for the purposes of this appeal.

Question 3:

Answer: The order by the Chief Justice of the Supreme Court of British Columbia dated November 1, 1983 restraining picketing and other activities within the precincts of all court‑houses in British Columbia did infringe or deny the rights and freedoms guaranteed by s. 2(b), of the Canadian Charter of Rights and Freedoms but did not infringe or deny the rights guaranteed by ss. 7, 11(a) and (d).

Question 4:

Answer: The order was justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982.

The following are the reasons delivered by

74. McIntyre J.‑‑I have read the reasons for judgment prepared in this appeal by the Chief Justice. I agree with his result and with his reasons with one exception. I would not find any infringement of any Charter‑protected right of the Union or its members in the judgments of the Trial Court or the Court of Appeal. Consequently, I would answer question 3 in the negative and it would be unnecessary to answer question 4.

75. The Chief Justice has said, and with this I am in full agreement, that the rule of law is the very foundation of the Charter and that free access to the courts is essential to the maintenance of the rule of law. He has considered it inconceivable that:

...Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court.

In my view, the right of such free access is Charter‑protected, and I agree with the Chief Justice where he said:

There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Counsel for the Attorney General of British Columbia posed this question:

By what authority and on what criteria were the Union leaders deciding who were to be given passes and who were to be denied them?

I cannot believe that the Charter was ever intended to be so easily thwarted.

76. The injunction granted at first instance enjoined conduct which was calculated to interfere with the operations of the courts of the Province or to restrict or limit access to the courts. In this, it is clear that it enjoined the Union and its members from engaging in conduct which was aimed at the infringement or limitation of the Charter‑protected rights of others. In so doing, I am unable to find that any Charter right of the Union or its members was affected or limited and, therefore, there is no occasion to resort to s. 1 of the Charter.

77. I see no parallel here with the Dolphin Delivery case, RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573. I agree, as said there, that any picketing involves some element of expression and, further, that it is not every action accompanying the expression which will alter the transaction and remove Charter protection. It was also said, however, that protection would not be accorded to clearly unlawful conduct. The conduct here enjoined was clearly unlawful and calculated to infringe the Charter rights of those seeking access to the courts. This cannot be said of Dolphin Delivery where the illegality of the conduct concerned only an interference with contractual rights, a tort, the acceptability of which as a limitation imposed by law might or might not have been supported under s. 1, whereas the effect of the picketing in issue here was described by the Chief Justice in these words:

Accused persons have a Charter right to a fair trial and a statutory right to make full answer and defence. Witnesses crucial to the defence could well have been deterred from even requesting a pass to enter the courthouse to give vital evidence. It is perhaps unnecessary to multiply the examples. The point is clear. Picketing a courthouse to urge the public not to enter except by permission of the picketers could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia.

This is not a case such as Dolphin Delivery which required a balancing of conflicting rights. What is in issue here is the question of whether any person or group may have a Charter right to engage deliberately in conduct calculated to abridge the Charter rights of others. In my view, no such right can exist and resort to s. 1, which can only have application where there has been an infringement of a Charter right, was therefore unnecessary.

78. In all other respects, I agree with the Chief Justice.

Appeal dismissed; the first constitutional question should be answered in the affirmative; the second constitutional question needed not be answered; the third constitutional question should be answered in the affirmative with respect to s. 2(b) of the Charter but in the negative with respect to ss. 7, 11(a) and (d); and the fourth constitutional question should be answered in the affirmative. McIntyre J. would answer the third constitutional question in the negative and find it unnecessary to answer the fourth.

Solicitors for the appellant: Baigent, Jackson, Blair, Vancouver.

Solicitors for the respondent: Farris, Vaughan, Wills & Murphy, Vancouver.

Solicitor for the intervener: F. Iacobucci, Ottawa.

• Estey J. took no part in the judgment.