Many procedural technicalities in criminal law are now popular, even constitutionally entrenched. But civil procedure has moved the other way. Every set of Rules of Court, many statutes, and two thirds of the decided cases, say that most slips should be ignored or cured. Particularly when they have not prejudiced anyone.
In the 1600s and 1700s, Parliament kept enacting death sentences for a host of comparatively small crimes. The response of sympathetic courts was to upset convictions for minor clerical and procedural errors. That approach today is highly anachronistic, especially where no jail time is sought or likely. And certainly no death penalty. Nor even a free one-way voyage to Australia.
Yet one vestige remains, and in civil procedure to boot. A generation ago, there was a judge-made exception to the flexible civil approach. In cases of contempt of court, many judges would refuse to find contempt if there were any little flaw whatever in the procedure of the party moving for contempt. The judges called this odd approach the doctrine of "strictissimi juris", meaning that they wanted the strictest compliance with "the law".
That approach has become less popular in recent years, and there is Alberta authority condemning it, and it may well no longer be the law in Alberta. See Letal v. Lakeland R.C. School Trustees 2000 ABQB 801 (¶’s 31-32). I am not aware of any binding case law requiring Alberta judges to follow that old notion. Morasse v. Nadeau-Dubois 2016 SCC 44 is not a general authority. The majority say repeatedly that it is about Québec criminal contempt, and they apply the concept only to notice of the pending charges, and to reasonable doubt. They expressly say that their mens rea discussion is for Québec. The contempt conviction there was upset on substantive grounds. Much the same is true of Vidéotron v. Ind. Microlec [1992] 2 SCR 1065. The statement in Continuing Care etc. v. A.U.P.E. 2002 ABCA 148 is only in the dissent, and contrary to the most recent Jodoin decision on the Charter’s inapplicability (see below). Even Alberta Queen’s Bench decisions do not seem to apply strictness except to require proof beyond a reasonable doubt and to exclude hearsay. But the strictissimi notion does keep cropping up, even in the odd Alberta decision.
How judges got the right to overrule or ignore express Rules of Court or other legislation about curing procedural flaws, no one ever explains.
Besides flying in the face of the Rules, the "strictissimi" notion makes no sense at all. Most litigants cannot block their opponents by use of mindless trivial technicalities which do no one any good and have caused no one any prejudice. So why should a litigant who is badly misbehaving, and maybe even flagrantly defying court orders, get better treatment and be able to wiggle out of responsibility, because of a misplaced comma? The public detests wrongdoers getting off because of technicalities.
"Oh no", you may object. "Your criticism assumes that the person accused of contempt is guilty, whereas he may not be: he may be innocent”. But that innocence objection misunderstands the topic. Any proof of guilt or innocence is substance, not procedure. And it must be proved beyond a reasonable doubt. The "strictissimi" doctrine is applied in some other provinces to pure procedure having nothing at all to do with the merits. Nor even any connection with the rules of natural justice, such as actual notice of what one is charged with. Courts are still properly vigilant to ensure such notice.
The Criminal Code of Canada contains many sections removing various procedural slips as a defence, and allowing the court to cure errors and make amendments (as was pointed out in one Saskatchewan contempt case). If that can be done in a prosecution for an indictable offence, why should the law be more tender and technical when the accusation is merely civil contempt, especially where no imprisonment is likely? See U.F.C.W. v. F.W. Woolworth Co. [1993] 2 WWR at 676-77 (Sask).
I cannot recall ever reading any attempt to justify the "strictissimi juris" doctrine, except maybe confusion between procedure and quality of proof of guilt, or invocation of the Charter. At most, there is an assertion that contempt is serious, so procedure should be strict. That is a non sequitur. Do we say that feeding the hungry is important, so we will throw out much of our cooking because it does not have parsley sprinkled on top or there is a smear in the cake's icing?
Using a Latin phrase is as useless as buying a rubber stamp. If it implies that the doctrine is very old, that is an odd way to justify a rule of civil procedure. Procedure has changed radically many times since the days of Coke, when James the First sat on the thrones of England and Scotland.
Another illogical aspect of this picky procedural approach is the parties. Most applications in a civil suit are to take something away from one litigant and to give it to another litigant, whether that something is procedural or substantive. But that is never entirely true of contempt of court, and often is not true in the slightest. A finding of contempt, and its punishment, is about the wrong done to the court and to the public.
Very often the other innocent litigant has other avenues open for redress. Any remedy for one litigant (such as costs) from a contempt application, is usually incidental. Often the party successfully moving for contempt of court gains little or nothing by it.
Quite often he or she is not even fully reimbursed for his or her legal bills, let alone his or her time and inconvenience. As American cases point out, the party moving for contempt is often acting as a de facto prosecutor to enforce the law. The "strictissimi" doctrine often serves to punish that volunteer prosecutor, even in cases where he or she has nothing to gain by the application. At this point, the court rewards the guilty and punishes the innocent. Why any ruler, just or despotic, would want to do that, escapes me. For a modern democratic government or its courts to do that surpasses all understanding.
And in the occasional case where the main object of an application to find contempt is to give the party moving what has been wrongly withheld from that party, then the main object is performance and obedience, not punishment. Why would the courts then treat the respondent accused of contempt as though he were being charged with a serious criminal offence and facing years in prison? For one thing, that contravenes the very recent philosophy laid down by the Supreme Court of Canada in Dir. of Crim. & Penal Prosecutions v. Jodoin 2017 SCC 26 (¶ 37).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
