The interesting, albeit sad, case of Gurtins v. Goyert, 2008 BCCA 196 (CanLII) deals with contempt and the question of whether it is possible to be in contempt for breaching the spirit of a court order.
The British Columbia Court of Appeal find the answer is ‘no’.
The facts in Gurtins involve a difficult teenager, her mother and friends the teenager moved in with. Suffice it to say various orders were made barring the friends from harboring the teenager. But, the orders did not expressly require the friends to do the act they were found to be in contempt of court for failing to perform.
It was clear the court intended the friends to act in a certain way, but that is not the way the orders made were drafted. When the friends followed the letter, but not the spirit, of the orders they were found in contempt.
And this finding of contempt was an error – only breaches of express orders are contemptuous (in the context of contempt for breach of court orders – other contempts, say contempt in the face of the court, are not so limited)
Of course, the Court’s finding is unassailable and the concept of following the spirit and not the letter is simply not practical in issues of breach of mandatory orders. (Romans 7:6 doesn’t apply to Superior Courts – of course, as responsible Canadians was should try “to serve in newness of spirit, and not in the oldness of the letter” but if we don’t our punishment will not be a term of imprisonment in a Canadian jail).
The Court held:
[13] Mr. and Mrs. Goyert advance a number of grounds of appeal. However, it is necessary to deal with only one of them, namely, that the chambers judge erred in finding them in breach of the intent of the orders made by de Walle P.C.J. and Goepel J., as opposed to the actual terms of those orders. More particularly, Mr. and Mrs. Goyert say they were found guilty of contempt for not returning the child to Kitimat after August 31, 2007, even though there is no direction in either order requiring them to do this.
[14] As the chambers judge correctly noted in paragraph 13 of her reasons, in a contempt matter, an order alleged to have been breached must be precise and unambiguous in its direction, and the alleged contemnor is entitled to the most favourable interpretation of it: Hama v. Werbes, 2000 BCCA 367 (CanLII), 2000 BCCA 367, 76 B.C.L.R. (3d) 271 at para. 8. However, in my view, she erred when she looked beyond the four corners of the two orders in deciding what legal obligations they placed on Mr. and Mrs. Goyert. It is apparent from the chambers judge’s reasons that, in interpreting the orders, she had regard to the transcripts of various court appearances, and to the reasons given by de Walle P.C.J. and Goepel J. for making their respective orders.
[15] The rule of law requires that court orders be obeyed. Accordingly, it is of paramount importance that persons who are subject to court orders be able to readily determine their obligations and responsibilities. They do this by having regard to what is on the face of the formal order setting out what they are required to do, or refrain from doing. As stated in Arlidge, Eady & Smith on Contempt (London: Sweet & Maxwell, 2005) (at para. 12-55), “[a]n order should be clear in its terms and should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation”. See also:
[16] A concise and most helpful summary of the principles applicable to the interpretation of an order in contempt proceedings is found in R. (Mark Dean Harris) v. The Official Solicitor to the Supreme Court, [2001] EWHC Admin 798 (Q.B.D.), wherein Mr. Justice Munby stated (at para. 68):
(i) No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing.
(ii) It is impossible to read implied terms into an injunction.
(iii) An order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. Looking only at the order the party enjoined must be able to find out from the four walls of it exactly what it is that he must not do.
(iv) It follows from this that, as Jenkins J said in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 at p 390,
a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.
[Emphasis added]
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