Newfoundland (Attorney General) v. N.A.P.E., [1988] 2 S.C.R. 204

Newfoundland Association of Public Employees Appellant

v.

Her Majesty's Attorney General of Newfoundland and William Chafe Respondents

indexed as: newfoundland (attorney general) v. n.a.p.e.

File No.: 19194.

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 newfoundland

Courts ‑‑ Criminal contempt ‑‑ Court‑house being picketed during legal strike ‑‑ Member of striking union crossing picket line to work at court‑house ‑‑ Union commencing internal disciplinary action ‑‑ Whether or not picketing of court‑house during lawful strike constituting criminal contempt ‑‑ Whether or not union had lawful right to proceed with internal disciplinary action.

Respondent Chafe, a member of appellant Association, crossed a picket line set up by the Association on his way to work at the court‑house. The picket line had been established in front of the court‑house during the course of a legal strike in 1978. When the Association was about to commence disciplinary action, the respondents sought (i) a declaratory order that any place where a court sits is not a place where a picket line may be set up or maintained and (ii) a mandatory injunction restraining the Association from proceeding further with its disciplinary action. The injunction was granted ex parte and the order was made permanent after a hearing. The Newfoundland Court of Appeal unanimously rejected the Association's appeal. This appeal raised two issues. The first was whether picketing a court‑house in the course of a lawful strike constituted criminal contempt of court. The second was whether the Union had the lawful right to proceed with its charge and with its proposed discipline hearings against Mr. Chafe.

Held: The appeal should be dismissed.

The picketing here constituted a criminal contempt of court. Notwithstanding the fact that the strike was legal, the fact that the picket line was intended by the Association as a barrier to the court‑house brought this case squarely within B.C.G.E.U. v. British Columbia (Attorney General).

Since the picket line itself constituted a criminal contempt, the appellant association had no right in law to discipline one of its members for ignoring its unlawful plea not to cross the picket line. The Association may have every right to enforce solidarity and respect for lawful picket lines but it cannot exercise such disciplinary authority to enforce respect for a picket line which is itself unlawful.

Cases Cited

Applied: B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214.

Statutes and Regulations Cited

Public Service (Collective Bargaining Act), 1973, S.N. 1973, No. 123.

Authors Cited

Newfoundland Association of Public Employees. Constitution of the Newfoundland Association of Public Employees. Article III, s. 8(a)(xiii).

APPEAL from a judgment of the Newfoundland Court of Appeal (1984), 1984 CanLII 3001 (NL CA), 50 Nfld. & P.E.I.R. 139, 149 A.P.R. 139, 14 D.L.R. (4th) 323, dismissing an appeal from a judgment of Noel J. Appeal dismissed.

V. Randell J. Earle, for the appellant.

Leslie R. Thoms, for the respondent the Attorney General of Newfoundland.

William H. Goodridge, for the respondent William Chafe.

The judgment of the Court was delivered by

1. The Chief Justice‑‑This appeal raises an issue as to the right of a labour union to place a picket line in front of a court‑house and to discipline someone, who is a member of the court staff and member of the striking union, for crossing the picket line.

I

Facts

2. In the course of a legal strike of the general service workers of the Newfoundland Association of Public Employees, Local 7104 beginning on September 18, 1978, the services of all Newfoundland government employees in the bargaining unit, except certain supervisory personnel and others required for essential services, were withdrawn. Included in the bargaining unit was the staff of the Supreme Court of Newfoundland. The court employees had not been designated as "essential" pursuant to The Public Service (Collective Bargaining Act), 1973, S.N. 1973, No. 123. The services of the members of the Association working at the Supreme Court were withdrawn with the exception of certain supervisory personnel. The striking employees picketed the court‑house in St. John's as part of their strike action.

3. William Chafe, a member of the Association and a bailiff employed at the court, crossed the picket line on the day it was set up, in order to perform his employment duties within the court. The constitution of the Association of Public Employees provides in paragraph 8(a)(xiii) of Article III that every member of a bargaining unit who refuses to respect a picket line during a legal strike is guilty of an offence for which he or she may be convicted and reprimanded, fined, removed from office, suspended or expelled. A charge under this provision in the constitution was brought against Mr. Chafe for having crossed the picket line and he was informed that his "trial" would be held before a committee of the Association on December 12, 1978.

4. On the day the disciplinary hearing was to commence, the Attorney General of Newfoundland and Chafe issued an originating summons seeking a declaratory order "that the Court House, Duckworth Street, St. John's or any other place where a Court sits is not a place at which a picket line may be established, set up, or maintained in that it is an interference with the administration of justice". The plaintiffs also sought a mandatory injunction restraining the defendant association from proceeding further against Mr. Chafe for the alleged disciplinary offence. Noel J. granted the injunction ex parte and, following a hearing held on January 10, 1979, Noel J. made the injunction order permanent. He held that the Association should be enjoined from proceeding with its disciplinary proceedings against Chafe. The Association appealed to the Newfoundland Court of Appeal and that Court unanimously dismissed the appeal. Leave to appeal to this court was subsequently granted.

II

Judgments

Noel J. (unreported)

5. In brief oral reasons, Noel J. held that inducements to an officer of the court to depart from his duty constituted a criminal contempt of court and that the court had ample powers to ensure that its officers were protected in the performance of their duties. Noel J. indicated that such powers were not for the purpose of vindicating the dignity of the court or of the person of the officer, but rather to prevent undue interference with the administration of justice.

Newfoundland Court of Appeal (reported at (1984), [1984 CanLII 3001 (NL CA)](https://www.canlii.org/en/nl/nlca/doc/1984/1984canlii3001/1984canlii3001.html), 14 D.L.R. (4th) 323)

6. The Association appealed to the Newfoundland Court of Appeal on the ground inter alia that the Attorney General was not a proper party to the action, that the judge had erred in restraining the appellant Association from carrying out its internal disciplinary procedure and that the judge had erred in finding the respondent Chafe was an officer of the court. Chafe cross‑appealed on the ground that the trial judge erred in failing expressly to find that the appellant did not have the right to discipline him internally under the union constitution for failure to respect the picket line.

7. All three judges of the Court of Appeal agreed that the appeal should be dismissed. Morgan J.A. stated that implicit in Noel J.'s order was the proposition that the establishment of a picket line at the entrance to a court‑house constituted a criminal contempt, designed to induce officers of the court to refrain from carrying out their duties. While the appellant contended that the strike was lawful, Morgan J.A. held that the real issue was whether the appellant's conduct in establishing a picket line at the court‑house constituted a criminal contempt; if so, none of the arguments of the appellant could prevail. Morgan J.A. referred to the well‑settled principle that acts tending to obstruct or interfere with the administration of the justice constitute a criminal contempt; he referred as well to the inherent jurisdiction of the superior courts to punish for such contempt. Morgan J.A. said at p. 329:

The question also arises as to whether the establishment of a picket line at the entrance to a court‑house obstructs or tends to obstruct the open administration of justice as submitted by the Attorney‑General. That question was considered in Re British Columbia Government Employees Union et al. and A.‑G. B.C. et al. (1983), 1983 CanLII 594 (BC SC), 2 D.L.R. (4th) 705, [1984] 1 W.W.R. 399, 48 B.C.L.R. 5.

Morgan J.A. referred at length to the reasons of McEachern C.J.S.C. in the British Columbia Government Employees' Union case and stated that the principles enunciated by McEachern C.J.S.C. could be applied in the present case. He concluded at p. 330:

Any conduct which is calculated to prevent or hinder, in their access to the court, any litigant or witness or any person whomsoever having business in the court or desirous of entering for the purpose of hearing what is going on, constitutes a contempt of court. In my view the placing of a picket line at the entrance to the court‑house falls within that category.

In Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283 (C.A.), Lord Denning M.R., as illustrative of the power of a judge to punish summarily of his own motion for contempt in certain prescribed circumstances, stated at pp. 287‑8:

This power has been inherited by the judges of the High Court and in turn by the judges of the Crown Court. To show the extent of it, I will give some instances:

(ii) Within the court room but not seen by the judge‑‑At the Old Bailey a man distributed leaflets in the public gallery inciting people to picket the place. A member of the public reported it to a police officer, who reported it to the judge. The offender denied it. Melford Stevenson J immediately heard the evidence on both sides. He convicted the offender and sentenced him to seven days' imprisonment. The man appealed to this court. His appeal was dismissed (Lecointe v. Courts' Administrator of the Central Criminal Court)" (February 8, 1973; Bar Library Transcript No. 57A of 1973).

Morgan J.A. held that the Attorney General of Newfoundland was a proper party to launch the proceeding, that Chafe was an officer of the court, and accordingly, he dismissed the appeal.

8. Mahoney J.A. agreed, placing extensive reliance upon the reasons of McEachern C.J.S.C. in the British Columbia Government Employees' Union case. Mahoney J.A. held that the matter could not be characterized as a purely internal matter between the union and its member, as no union could contract with its members to do any act which interfered with the administration of justice. He said at p. 337:

Prohibiting access to the court‑house to William Chafe interfered with the service of court process and the enforcement of court orders and interfered with the administration of justice generally. The establishment of the picket line at the court‑house in this case constituted a criminal contempt of court.

Mahoney J.A. held that the cross‑appeal of Chafe was unnecessary as the trial judge had in effect given him the relief he sought.

9. Mifflin C.J.N. agreed with Morgan J.A. In the view of the Chief Justice, the establishment of a picket line at the entrance to a court‑house was an interference with the open administration of justice, and, thus, is in itself a contempt of court. The Chief Justice added at p. 325:

It cannot be said that the failure of William Chafe to respect the picket line, be he an officer of the court or simply a member of the appellant association, could leave him open to jeopardy of disciplinary action by the association. I cannot conceive of a situation where one could be disciplined for refusing to countenance an illegal act. A fortiori, an officer of the court cannot be subjected to disciplinary action for refusing to respect an illegal picket line regardless of any disciplinary procedures in the constitution of the association.

The Chief Justice concluded by saying that the Attorney General was without question a proper party to the proceedings in that the responsibility for the administration of justice reposed in him.

III

The Issue

10. The issue presented by this case is not whether there was a right to strike, nor is the issue whether Mr. Chafe was under a legal duty to ignore the strike action and the picket line and report for work. There is no need to canvas either question. This appeal raises two issues. The first is whether picketing a court‑house in the course of a lawful strike constitutes criminal contempt of court. The second is whether the Union has the lawful right to proceed with its charge and with its proposed discipline hearings against Mr. Chafe.

11. The precise wording of the charge against Chafe is that he did "commit an offence against the constitution of the Newfoundland Association of Public Employees in that he did refuse to respect a picket line of local 7104 of the Nfld Association of Public Employees during a legal Association strike at the Court House, Duckworth St, St. John's, Nfld". The respondents contend that the Association lacks lawful authority to proceed with such a charge because the picketing itself was illegal.

12. The first issue in the case at bar is the same as that presented in B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, namely, does picketing which impedes access to the courts of justice constitute a criminal contempt of court. There is no question in the present case but that the strike was a lawful one. However, for the reasons given in the B.C.G.E.U. case, the legality of the strike does not render legal picketing which would interfere with the administration of justice. It is clear from the facts of the present case that the picket line was intended by the Association as a barrier to the court‑house. Mr. Chafe was faced with serious disciplinary charges for his insistence upon crossing the line and entering the court‑house. This brings it squarely within the holding in the B.C.G.E.U. case and it follows that the picketing constituted a criminal contempt of court.

13. If the picket line itself constituted a criminal contempt, the appellant association can have no right in law to discipline one of its members for ignoring its unlawful plea. As was pointed out in the reasons in the B.C.G.E.U. case, the Association and its constitution are subject to the law of the land. While the Association may have every right to enforce solidarity and respect for lawful picket lines, it cannot exercise such disciplinary authority to enforce respect for a picket line which is itself unlawful.

14. It should be emphasized that this judgment does not in any way order any individual or group of individuals back to work nor does it hold that the strike itself was unlawful, nor does it hold that Mr. Chafe was obliged to ignore the picket line and report for duty despite the strike. Mr. Chafe made his own decision to ignore the strike and to report for work. The simple point to be decided by the Court is whether he can be subjected to disciplinary proceedings by reason of his action, in light of the fact that the picket line itself constituted a criminal contempt of court. In my view the answer to that question must be in the negative. In the absence of illegality, the appellant union had a right to discipline Mr. Chafe in accordance with its constitution. In the absence of illegality the appellant's argument would be unanswerable. In the circumstances of this case, however, the picketing of the court‑house was illegal, a criminal contempt of court, and the appellant, in my view, could properly be enjoined from disciplining a member for that member's decision to cross an illegal picket line.

15. Counsel for the appellant stressed that in their ex parte application for injunctive relief and at the later contested court hearing, the Attorney General for the Province of Newfoundland and William Chafe did not enter any evidence establishing that the picketing of the court‑house had interfered with persons entering or leaving the court‑house or that the picketing had interrupted or affected any of the court proceedings. It was said that there was no evidence of intimidation, coercion, or violence to establish actual or probable interference with the administration of justice. In the B.C.G.E.U. case the picketing was peaceful; there was no violence or threats of violence. The argument presented in the case at bar was presented in that case, and rejected at pp. 16‑17:

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....

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.

16. Counsel for the appellant states that the case law dealing with the criminal contempt power of the court describes it as an inherent power of a superior court to maintain its authority and prevent its process from being obstructed and abused. That is a correct statement of the case law, as the authorities which counsel cites, make clear. Counsel then adds: "The Courts are not by this power to have a perfect existance [sic] free from the viscisitudes [sic] of everyday life". This statement pays scant heed to the point made repeatedly in the case law, that the power to punish for criminal contempt is not intended to insulate the courts from life's vicissitudes; it is not intended to place the courts in Elyseum, a blessed abode free from the slings and arrows which afflict all others; it is not intended to vindicate the dignity of the courts or the judges. The point is that courts of record have from time immemorial had the power to punish for contempt those whose conduct is such as to interfere with or obstruct the due course of justice; the courts have this power in order that they may effectively defend and protect the rights and freedoms of all citizens in the only forums in which those rights and freedoms can be adjudicated, the courts of civil and criminal law. Any action taken to prevent, impede or obstruct access to the courts runs counter to the rule of law and constitutes a criminal contempt. The rule of law, enshrined in our Constitution, can only be maintained if persons have unimpeded, uninhibited access to the courts of this country.

IV

Conclusion

17. I would dismiss the appeal with costs.

Appeal dismissed.

Solicitors for the appellant: Wells, O'Dea, Halley, St. John's.

Solicitor for the respondent the Attorney General of Newfoundland: The Department of Justice, St. John's.

• Estey J. took no part in the judgment.