O’Connor J.
The judgment of Laskin C.J. and Spence, Pigeon, Dickson and Beetz JJ. was delivered by
PIGEON J.
PIGEON J.—This is an appeal from a decision of the Court of Appeal of Quebec affirming the judgment of O’Connor J. of the Superior Court, dismissing the application for a writ of evocation made by appellant against a sentence of imprisonment imposed on him by the mis en cause, Rhéal Brunet, Marc Cordeau and Roméo Courtemanche, acting in their capacity as members of the Quebec Police Commission conducting an inquiry into organized crime as required by order of the Lieutenant-Governor in Council, dated September 27, 1972.
Appellant was called as a witness in this inquiry and questioned for nine days. He was then called upon [TRANSLATION] “to show why… [he should not] be found guilty of contempt of the Commissioners by reason of his evasive replies to numerous questions”. After hearing counsel for the appellant and refusing to hear witnesses [TRANSLATION] “for the purpose of trying to clarify terms, remarks and words used by… [him]” he was found [TRANSLATION] “guilty of contempt of the Commissioners for refusing to give sufficient answers to such an extent as to be adjudged a refusal to testify”.
It was to question this conviction and the ensuing sentence of one year in prison that appellant applied to the Superior Court by a motion in evocation pursuant to arts. 846 and 847 of the Code of Civil Procedure. All the grounds urged by appellant in his motion were dismissed explicitly or implicitly both by the Superior Court and the Court of Appeal. I will examine them successively. The Commissioners’ decision was based on the following legislative provisions.
Section 21 of the Police Act says:
21. For the purposes of such inquiries, the Commission and each of its members and every person authorized by it to make an inquiry shall be vested with the powers and immunities of commissioners appointed under the Public Inquiry Commission Act (Revised Statutes, 1964, chapter 11).
In the Public Inquiry Commission Act we read:
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7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.
12. If any person refuse to produce, before the commissioners, any paper, book, deed or writing in his possession or under his control which they deem necessary to be produced, or if any person be guilty of contempt of the commissioners or of their office, the commissioners may proceed for such contempt in the same manner as any court or judge under like circumstances.
Finally, art. 51 of the Code of Civil Procedure states:
51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding one year.
Imprisonment for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.
As we have seen, the contempt of court charge that appellant was called upon to answer before the Inquiry Commission did not specify the questions to which it was alleged that he had replied evasively. Neither was this done when he was convicted. At the beginning of the decision, before quoting from the testimony seventeen extracts containing approximately one hundred answers, the Commissioners wrote:
[TRANSLATION] …in view of the kind of answers given, the terms used by you, the ordinary meaning that must be attributed to the words which you yourself employed, we have made an overall assessment, not, for the time being, and we wish to stress this point, of the actual substance of your testimony, but of your manner of answering the questions, providing explanations and clarifying situations.
After the quotations came the following conclusion:
[TRANSLATION] Clearly, this examination of these rambling observations is not exhaustive: it would be tedious to point out all the contradictions, the answers that were sometimes deliberately obscure and often ambiguous or simply unintelligible.
We have therefore analysed your testimony as a whole, observed your attitude, your behaviour and the
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way in which you avoided giving an actual or reasonably probable meaning to the words used by you.
We are convinced beyond the shadow of a doubt that you decided to give testimony that was deliberately incomprehensible, rambling, vague, nebulous and amounting to a barely concealed refusal to testify.
In the circumstances, and for these reasons, we found the explanations furnished by you or by your counsel on your behalf to be unsatisfactory, and you are therefore found guilty of contempt of the Commissioners for refusing to furnish satisfactory replies to an extent that constituted a refusal to testify.
It is certain that in principle no one should be found guilty of contempt of court unless a specific charge has been brought against him. The Court of Appeal of Quebec gave a decision to this effect in Awada[2]. That case concerned a lawyer, and it was held that the judge who found him guilty of contempt of court had not told him before doing so in what this contempt might consist.
Can appellant complain because the Commissioners refused to specify the answers they regarded as evasive and later “made an overall assessment” of appellant’s attitude during his testimony? Respondents maintain that this manner of proceeding was approved by the Privy Council in Chang Hang Kiu v. Piggott[3], where Lord Collins said at p. 315:
With regard to the first ground of objection taken by the appellants, namely, that they were not informed by the Chief Justice what statements made by them respectively constituted the alleged perjury, their Lordships are of opinion that it is not established in point of fact. The statement made by the Chief Justice was to the effect that the whole evidence given by the appellants convinced him of a conspiracy on their part to make it appear that Wong Ka Chuen was at the date of the presentation of the petition a partner in the Lai Hing firm, and that all they had said material to that issue was a tissue of deliberate falsehoods. Their Lordships think that, having regard to the nature of the charge he was making against the appellants, it did not admit of being formulated in a series of specific allegations of perjury, and that the gist of the accusation he was
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making ought to have been sufficiently clear to them from the language which he employed to express it…
More recently in Appuhamy v. The Queen[4], Lord Dilhorne L.C. said at p. 483:
…If the court is of the opinion that the whole of a witness’s evidence was false, it may be sufficient, as in the case of Chang Hang Kiu v. Piggott, just to say that. But when it is not suggested that the whole of a witness’s evidence is false, it is essential that the witness should be left in no doubt as to which parts are alleged to be false. Unless he is so informed, he is deprived of the opportunity of explanation and possibly of correcting a misapprehension as to what had been in fact said or meant.
It should be pointed out that both Appuhamy and Chang Hang Kiu dealt with charges of contempt of court by false testimony, in other words perjury. It was therefore necessary that the falsity of the testimony be established beyond a reasonable doubt, and it is hard to see how this could have been done without a hearing. It is certain that Commissioners, like any other tribunal, cannot convict a witness for contempt of court committed before them during his testimony on the basis of knowledge from outside sources. There is no need to consider whether they could proceed with the equivalent of a trial for perjury by introducing against the witness charged with contempt evidence intended to prove the falsity of his testimony. There is here no question of insufficient evidence, as in McLeod v. St. Aubyn[5], where this was the reason for quashing the conviction. Here the basis for the conviction is that appellant’s testimony was manifestly evasive and was in itself sufficient evidence of what was alleged against appellant.
Wolf v. The Queen[6], should be mentioned in this regard. This Court affirmed a conviction for perjury made under the following circumstances. The accused had been assaulted and had signed a statement naming his assailants. Called as a witness at their preliminary inquiry he admitted that he knew them but stated that he remembered
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nothing. He remembered being in the hospital and being treated for his injuries but said he did not remember how he had received them. At the hearing of the appeal, the falsity of the testimony thus given was not disputed. Only the intent to mislead the Court by giving it was discussed. This Court unanimously rejected the submission that “the failure to give any affirmative response by asserting a want of recollection of events, which the accused had described in out of court oral and written statements, cannot involve an intent to mislead the Court when there was no other evidence to give concreteness to the lapse of memory” (at p. 111).
Cases in the courts of the United States make a clear distinction between contempt of court by false testimony and contempt by evasive answers. In the latter case it is generally accepted that the evasive testimony is sufficient by itself to support a conviction. In United States v. Appel[7], Hand J. said:
(2) The rule, I think, ought to be this: If the witness’s conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court. That conduct is, of course, beyond question when he flatly refuses to answer, but it may appear in other ways. A court, like any one else who is in earnest, ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test. For instance, it could not be enough for a witness to say that he did not remember where he had slept the night before, if he was sane and sober, or that he could not tell whether he had been married more than a week. If a court is to have any power at all to compel an answer, it must surely have power to compel an answer which is not given to fob off inquiry.
In Richardson v. United States[8], a decision of a Federal Court of Appeal, the following appears at p. 147:
(5) Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all. Refusal to disclose information known to a witness by evasive answers can be as obstructive of justice as an outright refusal to testify.
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A particularly interesting decision is that of the Supreme Court of the State of New York in Valenti[9]. Each of the questions to which the witness gave an evasive answer, is set forth in the conviction because this was required by a specific rule in this case, decided under the law of the State of New York. The witness had been called before a Commission holding an inquiry similar to the one involved in the case at bar. A majority of the Supreme Court affirmed the decision of the Court of Appeal that the conviction of the witness Costenze P. Valenti was valid. Desmond J. said at p. 406:
Costenze Valenti’s answers were on their face not only false but so clearly evasive and obstructive as to amount to a refusal to answer at all and so were contemptuous and contumacious as matter of law.
I cannot, however, refrain from quoting the noteworthy conclusion of the strong dissent by Froessel J., who wrote, at p. 405:
By keeping relators in prison until they supply answers which satisfy the commission and the courts, they are not only being sentenced to conceivable life imprisonment, without a trial by jury or any of the other traditional rights which the law accords to a defendant, but they are in effect being compelled to admit they committed perjury in giving the answers they did. Such an arbitrary deprivation of liberty makes a hollow mockery of the “due process of law” requirement. To cull a phrase from Chief Judge Cardozo, used in a different context but appropriate here, “A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price”. (Matter of Doyle, 257 N.Y. 244, 268.)
It should also be noted that in Appel, rather than sentencing the witness to a long prison term, Hand J. imposed a sentence of ten days only, adding: “At the end of that time he may appear before the commissioner, and see whether he can tell a story which is not so obviously a mere sham. At that time the matter may be brought up again for further consideration”. This method of dealing with a recalcitrant witness has the advantage of making it quite clear that the imprisonment is
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intended to compel the witness to submit to the authority of the Court, and is not disguised punishment for offences of which he has not been convicted by a court of criminal jurisdiction.
I wish to repeat the observation I made in Di Iorio and Fontaine v. Warden of the Jail[10]. Although the Code does not say it explicitly, it seems to me that the principle stated by Vaughan Williams J. in Re Armstrong[11], (cited in Poje[12], at p. 519) would apply and that the imprisonment should end ex debito justitiae as soon as the person incarcerated agrees to comply with the order of the court, just as the penalty may be repeatedly inflicted as long as the contempt endures. This is a matter in which the common law is the basic law of Quebec (Langelier v. Giroux[13], Lamb v. Benoit[14], at p. 328). A rule of common law is not repealed by a statute that does not mention it (Alliance des professeurs catholiques de Montréal v. Labour Relations Board[15]).
The primary question in the case at bar is whether the charge brought against appellant was specific enough to support a valid conviction. The fundamental rule is beyond question: a vague charge is a fatal defect. Chang Hang Kiu and Appuhamy do not depart from this principle, they merely indicate how it should be applied in certain circumstances. When testimony is false in its entirety, a charge of perjury, and consequently of contempt, is specific enough if it simply says this. If, however, the objection is not to the testimony as a whole, the charge must specify which part of the testimony is complained of. In the case at bar the charge itself shows that there was no suggestion that the entire testimony was evasive. It was therefore necessary to specify what was considered evasive. Not only was this not done at the hearing of the charge, it was not done in the decision, where examples only were given, on the pretext that it
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would be [TRANSLATION] “tedious to point out all the contradictions, the answers that were sometimes deliberately obscure and often ambiguous or simply unintelligible”. I have underlined “sometimes” and “often” to show clearly that, according to the wording of the decision itself, it was not the whole of the testimony that was held to be evasive even on the basis of an overall assessment.
Precision in a criminal charge is not to be regarded merely as a matter of form. Precision is necessary if the accused is to be able to defend himself effectively. How can he be expected to show that his answers are not evasive if he is not told which of them are being characterized as such? It is argued that about one hundred examples were quoted in the decision and that this should be enough to support the conviction. But if this was the case, why was not the demand for particulars answered by a statement that those were the answers on which the charge was based? As we have seen, not only were particulars denied, but some one hundred answers were quoted in the decision as examples only. There is a great difference between an exhaustive list and a list of examples. In the latter case, an accused attempting to justify himself is at all times subject to being confronted with other parts of his testimony. In the case at bar the decision itself shows that to an unspecified extent the conviction rests not only on the answers quoted as examples but on other parts of the testimony.
Furthermore, the nature of the conviction itself makes the lack of precision doubly prejudicial. An accused person who is sentenced to a long term in prison for evasive answers regarded as amounting to a refusal to testify is entitled to purge himself of his contempt by providing answers that are not evasive. In order to be able to do this he must know quite clearly which questions require better answers not only to be able to apply for his release, but also to avoid having the imprisonment “repeatedly inflicted” to the point where a conviction for contempt of court may become, as Froessel J. said, the equivalent of a life sentence.
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For these reasons, therefore, I conclude that the issuance of the writ of evocation should be authorized, because the conviction on its face is based on an imprecise charge. Since this finding does not end the case, it seems desirable to rule also on the other questions of law raised in the motion in evocation.
Appellant contends that s. 7 of the Public Inquiry Commission Act requires the presence of a majority of the members of the Police Commission, the total number of whom is nine, he says. This contention was properly rejected by the Court of Appeal. Section 21 of the Police Act does not make the members of the Commission subject to all the provisions of the Public Inquiry Commission Act. It merely gives them the powers and immunities of Commissioners appointed under that Act. The quorum is fixed by a special provision of the Police Act namely s. 10, which was replaced by s. 4 of c. 22 of the 1969 Statutes, which reads as follows:
10. The Commission may sit simultaneously in several divisions composed of at least two members appointed by the president.
When there is a disagreement among the members of the Commission, and their opinions are equally divided on any matter, it shall be referred to the president who shall decide it.
Two members shall constitute a quorum of the Commission; such quorum shall include the president, except when the Commission sits during an inquiry which it holds under this act.
Appellant alleges that the Commissioners refused to allow him to summon witnesses for his defence. In my opinion, if it was conceded that the charge was sufficiently specific in the circumstances and the Commissioners could properly find proof of it in the witness’s answers and his attitude before them, they were in no way obliged to do any more than listen to his explanations and the representations of his counsel before convicting him. In order to have the right to call witnesses, one must have facts to put in evidence; appellant never indicated what facts he sought to prove by means of the witnesses he wanted to summon. In view of the nature of the charge—evasive replies
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amounting to a refusal to testify—it is hard to see what facts he could have introduced in his defence. The decisions of this Court in Toronto Newspaper Guild v. Globe Printing Company[16] and Alliance des professeurs catholiques de Montréal v. Labour Relations Board[17], are of no assistance to the appellant. The first case dealt with a refusal to allow cross-examination of a witness and the second involved the complete absence of a hearing.
The decision of the Court of Appeal of Ontario in Re Ontario Crime Commission, ex parte Feeley[18], was rendered in an entirely different legal context. In the reasons of the majority, written by Schroeder J.A., one reads (at p. 474):
The wide power conferred on the Court of Appeal by s. 5 also invests it with authority to review decisions, orders or directions made in the exercise of the Commissioner’s discretion.
The second paragraph of s. 15 of the Police Act, on the other hand, reads as follows:
None of the extraordinary recourses provided in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction shall be granted against the Commission or against its members acting in their official capacity.
In this regard the Chief Justice of the province, with the concurrence of his colleagues, said:
[TRANSLATION] …According to a well-established line of authority, this clause does not completely preclude recourse to a writ of evocation but limits it to cases of absence or excess of jurisdiction.
Consequently, as I have already observed, this Court cannot intervene in the exercise of the Commissioners’ discretion. The choice of methods of examination objected to by appellant comes within this discretion and therefore cannot constitute an excess of jurisdiction. Even if well founded, the allegation that an illegally obtained tape recording was used in the examination cannot affect the jurisdiction of the Commissioners any more than their refusal to allow the witness to listen to it.
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Nothing was cited to show that in the absence of a statute so providing, evidence obtained illegally is inadmissible, or that a witness may demand to be shown a document likely to be used against him at a later time.
Finally, the allegation that the questions put to appellant while he was being examined did not come within the mandate given to the Commission must be regarded as frivolous. The text of this mandate is reproduced in the reasons delivered in Di Iorio (April 1, 1976), supra, in which the majority ruled that it was not unconstitutional. It is clear that most of the questions quoted in the decision rendered by the Commissioners against appellant are relevant to the subject‑matter of the inquiry, and I will quote only one:
[TRANSLATION] Q. And you?—you did not suggest to Mr. SOCCIO that he say to the Commission: “Say you gave money to a policeman to open a gambling house”?
I conclude that the appeal should be allowed, the judgments of the Court of Appeal and of the Superior Court should be set aside and the issue of writ of evocation be directed, the whole with costs in this Court and in the Court of Appeal, and to be in the cause in the Superior Court.
The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by
DE GRANDPRÉ J. (dissenting)
DE GRANDPRÉ J. (dissenting)—In support of his appeal, appellant submits several grounds, which are examined by Pigeon J. in his reasons. All but one are dismissed and I agree with my brother that the only question to be decided is the following:
Was appellant informed of the charge against him, namely that he had replied evasively in his testimony as a whole to the point where his answers amounted to a refusal to testify?
The courts of Quebec answered this question in the affirmative and refused to authorize a writ of evocation to be issued. In my opinion this finding was just.
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Since the facts are simple and the legislation well known, it will suffice to summarize my opinion in a few propositions:
(1) a witness charged with contempt of court is entitled to know in exactly what way his conduct was contemptuous;
(2) when the conduct in question is an isolated, easily identifiable act, it goes without saying that the accused should be made aware of this act and asked for an explanation;
(3) when the conduct in question is a general attitude exhibited throughout a testimony, however, it is impossible to identify each of the answers that tend to demonstrate this attitude; the only course open to the Court is to tell the accused that taken as a whole his entire testimony shows a deliberate attempt to avoid answering intelligibly, and urge him to change his attitude.
These propositions are taken from the major decisions cited by the parties before this Court. The passages that have the most meaning for our purposes have been excerpted by Pigeon J., and it would be pointless to repeat them here. I refer in particular to Chang Hang Kiu v. Piggott[19]; Appuhamy v. The Queen[20]; and United States v. Appel[21].
I can see no difference between the case at bar and the cases of perjury referred to in these decisions. In both situations, what is at issue is the testimony as a whole, its tone. In the case of perjury, this whole is intended to affirm the opposite of the truth, whereas in the case at bar it is intended to make the facts so unintelligible that the testimony becomes entirely useless. In both cases some answers taken individually are true and have meaning, but when related to the other answers they lose this truthfulness and rationality.
The Commission’s decision complies with the propositions contained in these decisions. Taken as a whole, the order made stated quite clearly that it
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was appellant’s general attitude that was regarded as contemptuous. One need only read again the following paragraphs of the order:
[TRANSLATION] We have therefore analysed your testimony as a whole, observed your attitude, your behaviour and the way in which you avoided giving an actual or reasonably probable meaning to the words used by you.
We are convinced beyond the shadow of a doubt that you decided to give testimony that was deliberately incomprehensible, rambling, vague, nebulous and amounting to a barely concealed refusal to testify.
It is the testimony as a whole that is at issue, and the fact that the order quotes a number of questions that the Commissioners saw as examples of the attitude adopted by appellant does not make this any less true. Without the examples, the Commissioners’ conclusion was unassailable and it is not weakened by including them.
I am convinced that appellant was well aware that his manner of answering would cause trouble for him, yet he refused to change it. I do not see how we can disregard the order, therefore, and I would affirm the finding of the Court of Appeal. This finding does not prevent appellant from obtaining a discharge by offering to change his attitude and to answer to the best of his knowledge each and every question put to him.
Appeal allowed with cost, MARTLAND, JUDSON, RITCHIE and DE GRANDPRÉ JJ. dissenting.
Solicitor for the appellant: Robert La Haye, Montreal
Solicitors for the respondent and the mis en cause: Thibaudeau, Prat, Richard & Tremblay, Montreal.
Footnotes
- [1] [1974] C.S. 95.
- [2] (1970), 13 C.R.N.S. 127.
- [3] [1909] A.C. 312.
- [4] [1963] A.C. 474.
- [5] [1899] A.C. 549.
- [6] [1975] 2 S.C.R. 107.
- [7] (1913), 211 F. 495.
- [8] (1959), 273 F. 2d 144.
- [9] Sub. nom People ex rel. Valenti v. McCloskey (1959), 6 N.Y. 2d 390.
- [10] [1978] 1 S.C.R. 152.
- [11] [1892] 1 Q.B. 327.
- [12] [1953] 1 S.C.R. 516.
- [13] (1931), 52 Que. K.B. 113.
- [14] [1959] S.C.R. 321.
- [15] [1953] 2 S.C.R. 140.
- [16] [1953] 2 S.C.R. 18.
- [17] [1953] 2 S.C.R. 140.
- [18] (1962), 34 D.L.R. (2d) 451.
- [19] [1909] A.C. 312.
- [20] [1963] A.C. 474.
- [21] (1913), 211 F. 495.
Statutes and regulations cited
-
Unresolved citations
- Section 21 of the Police Act
- s. 7 of the Public Inquiry Commission Act
- al. Section 21 of the Police Act
- s. 10
- s. 4
- s. 5
- s. 15 of the Police Act