Harper Contempt Sub Judice

7/23/2019 Harper Contempt Sub Judice

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R. v. Khadr: Did Prime Minister Harper Commit a Contempt of Court?

by Jeffrey Miller*

*Lecturer in Law and Literature, Faculty of Law, McGill University, author of (inter alia) TheLaw of Contempt in Canada(Carswell); www!effrey"illerca

#n July $%, $&'%, the Globe and Mailublished a secial feature by its !ustice reorter,

ean Fine, detailin +ri"e Minister tehen arer-s strule aainst what he sees as ende"ic

!udicial activis" in Canada, articularly in cases involvin cri"inal law and the Charter of

Rights and Freedoms' .he lon article beins with a descrition of #"ar /hadr-s alication

for a transfer fro" a federal enitentiary to a rovincial facility for adults, on the aru"ent that

this would have been his destination had he been sentenced in Canada for cri"es co""itted as a

youth$ .he residin !ude, Fine writes, had 0lobbied1 the ri"e "inister 0for a ro"otion1 on

the court hearin /hadr-s alication, the 2lberta Court of 3ueen-s 4ench 0+art of his new

!ob,1 Fine continues, of Chief Justice John 5oo6e, 0was assinin cases, so"eti"es to hi"self

7ow, 8 the case before hi" involved an individual in who" Mr arer had e9ressed an

e"hatic interest1 5oo6e CJ eventually ruled that, as a U tribunal had convicted /hadr as

an adult on several of the chares in issue (never "ind that he was fifteen at the ti"e of the

chared cri"es), he was to stay in the enitentiary:

Later in the iece, as evidence of the ri"e "inister-s e"hatic interest in the case Fine

describes re"ar6s at a ress conference, on the day of /hadr-s transfer hearin +ri"e Minister

arer insisted that /hadr deserved, in Fine-s words, 0the "ost severe unish"ent ossible1

More recisely, the ri"e "inister said this

' 0tehen arer-s courts,1 Focus section, at F'' 7otoriously, rior to an interovern"entalaree"ent rovidin for /hadr-s incarceration in Canada, the United tates overn"ent had heldhi" in Guantana"o 4ay rison for terrorist activities that included a renade attac6 in2fhanistan that 6illed a U soldier: Ibid. 2"on other thins, /hadr asserted that the sentences i"osed by the U tribunal didnot reflect the "andatory "ini"u"s an adult would have faced, for the sa"e cri"es, underCanada-s Criminal Code.


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Miller ? @id the +M Co""it Conte"tA < $

.his is an individual who, as you 6now, led uilty to very serious cri"es

includin "urder and it is very i"ortant that we continue to viorously defend

aainst any atte"ts, in court, to lessen his unish"ent for these heinous acts

4ut we will continue to do everythin in our ower to e"ower our olice and

security forces to deal with threats and to wor6 with the international

co""unity in identifyin these, because they are inevitably cross$o"ar


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Miller ? @id the +M Co""it Conte"tA < :

reasonable li6elihood of re!udiceH t see"s that in this case, however, the ri"e "inister would

have acted reasonably to ta6e such cover2ldride, ady, and "ith characterie the rule as 0aainst ublishin e( partestate"ents,1I

which "a6es rahic the ill the rule see6s to address the otential that litiation will be

influenced unduly to one oint of view or secial interest uch otential certainly see"s to be

in the air here, all the "ore insofar as the re"ar6s are those of a stolidly conservative head of the

national overn"ent, notorious for his redilection for !udicial conservatis" and a so$ ($&':), %:%


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Miller ? @id the +M Co""it Conte"tA < B

Khile the law stiulates that a conviction forsub udi!econte"t "ay be reistered only

where conte"nors 0re!ude the issues,1'Bthey need not intend to re!udice the action'%

ntention or none, there need e9ist only 0a real and substantial ris6 that a fair trial will be

i"ossible in the circu"stances of the case1'> uch i"ossibility need not be "anifest; what is

i"ortant is the ris%of unfairness2ain, counsel for the ri"e "inister "iht turn dney-s view around on hi" insofar as

/hadr-s lawyer notes that the trial did not concern his client-s uilt or innocence, but an

ad"inistrative, correctional "atter, "any years after conviction and oriinal sentencin Qet the

cases say that the "aterial sta6es in the trial are irrelevant nterference is interference ? or, "ore

recisely, !ustice is !ustice'= Khile there is no auto"atic rotection of trial fairness over free

e9ression rihts, 0the rotection of trial fairness should be accorded riority,1 iven that 0the

conte"t ower is so crucial to the rule of law and reservation of a stron !ustice syste" that

li"its i"osed on other rihts by that ower are !ustified in a free and de"ocratic society1

Conte"t citations address 0the creation of a real and substantial ris6 to the ad"inistration of

!ustice and not trial fairness alone1'H

'B"#G v. Times $ewspapers Ltd.+ supra, note B'%Manitoba /"#G0 v. Groupe 3u4be!or In!.('IH=), B% @L5 (Bth) H&, at I$ ee alsoR. v. Froese('IH&), 'H C+C IB, at '&> (4CC2) and see eRoa!h v. Garavan ('=B$), $ 2t6 B>I (0The -t. *amesEvening 1ostcase,1 in which latter an editor cited forsub udi!e conte"t rofessed inorance of thecourt roceedins

'> C.&.C. v. Keegstra('IH>), :% @L5 (Bth) => at =H'=R. v. Caro!!hia('I=:), '% CCC ($d) '=% (3ueC2) ere, the court found a olice officerin conte"t after he issued a ress release connectin a wholesaler with oranied cri"e t wasirrelevant to the conte"t "atter that the wholesaler was chared only with breaches of a"unicial hyiene bylaw and faced a "a9i"u" fine of R'&& er offence'H"lberta v. The Edmonton -un+ $&&: 24C2 : (Can L), at aras $H


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Miller ? @id the +M Co""it Conte"tA < %

Khile courts will avoid conte"t citations where alternatives are available'I? alternatives such

as venue chane, !ury seSuestration, ostonin ublication, declaration of a "istrial$&? no such

alternatives e9isted here, with the transfer alication literally at bar, e9cet the drastic, last instance ofRe uellet,$=

a successful scandaliin rosecution that suests a !uristic answer .he conte"nor was a

cabinet "inister who told a reorter that he found a articular !udicial decision co"letely

$% ee, e, Linda Fuerst, 4ill C.he situation has not chaned since Fuerst ublished this article ee also Lorne ossin andalerie Crystal, 2 Co""ent on N7o Co""ent- .he ub Judice 5ule and the 2ccountability of+ublic #fficials in the $'st Century, supra+ note > at %%%$> -upra+ note > at %B=


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Miller ? @id the +M Co""it Conte"tA < =

unaccetable and silly1 e added that he could not understand how a !ude who is sane

could ive such a verdict t is a co"lete shoc6 and find it a co"lete disrace, and said he

would as6 the "inister of !ustice to aeal the !ud"ent

.he 3uebec Court of 2eal held that, while the riht to free e9ression included ublic

criticis" of !udes- decisions, for a overn"ent "inister to characterie the trier as insane was

conte"tuous ven if, the court said, it acceted #uellet-s assertion that his sha6y nlish

caused hi" to say sane when he "eant clear

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Harper Contempt Sub Judice