Criminal contempt controlled by the court and not AG, oil tank leak bill is okay, and the SCC on child support
This week on Legally Speaking with Michael Mulligan:
The BC Supreme Court has inherent jurisdiction to control its own process. This includes the authority to find people who breach court orders to be in contempt. The purpose of this is to uphold the rule of law.
The rule of law requires people to comply with court orders, even if they don’t agree with them.
If people were permitted to decide which laws they wished to comply with, the strongest mob would prevail, and the result would be anarchy.
There are two different forms of contempt that can apply when a court order is breached: civil contempt, and criminal contempt.
Criminal contempt involves the element of public defiance of a court order with intent, knowledge or recklessness that doing so will undermine the authority of the court.
Unlike with civil contempt, where the objective is ensuring compliance with the order, a sentence for criminal contempt includes punishment for the behaviour.
A recent BC Supreme Court case, discussed on the show, clarifies the procedure for criminal contempt proceedings and makes clear that the provincial Attorney General does not have the authority to decide if such prosecution should occur.
In British Columbia, starting with a contempt proceeding for people who were blocking access to the Everywoman’s Health Centre, in contravention of a court order, a practice of the court “inviting” the Attorney General to undertake prosecutions for criminal contempt developed.
In the current case, six individuals who were involved in a blockade of the Vancouver Port Authority, contrary to a court order, in furtherance of a dispute over a natural gas pipeline, were arrested. The court hearing the case concluded that the contempt appeared to be criminal in nature and thus invited the Attorney General to conduct the prosecution.
Rather than doing so, however, the Attorney General took the position that he had the authority to assess the prosecution in the same way as might occur when the police submit a report and recommend criminal prosecution. This kind of assessment involves both a consideration of the strength of the case, and whether prosecution would be in the public interest.
The Attorney General declined to prosecute the people who had been blocking the port in violation of the court order, citing public interest considerations.
The court, in the recent decision, has made clear that the Attorney General doesn’t have authority to decide if a criminal contempt prosecution should proceed. The court has control of the process, and if the Attorney General doesn’t accept the invitation to conduct the prosecution, the court may consider other measures, such as appointing a special counsel to present the case.
Also on the show, a 72-year-old widow ends up with a $166,702.73 bill for removing 324 tonnes of contaminated soil as a result of an underground oil tank leaking.
After an initial victor at trial, when a judge concluded the cleanup contract was unconscionable, pursuant to the Business Practices and Consumer Protection Act, this finding was overturned on appeal.
Finally, the Supreme Court of Canada has provided further guidance on when unpaid child support arrears should be reduced. Two takeaways from the case were that a person paying child support, who has a change of financial circumstances, needs to share this information in a timely way and that continuing to pay what is possible, from a reduced income, will demonstrate good faith.
Follow this link for a transcript of the show and links to the cases discussed.