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) The
Law of Contempt in Canada (Carswell); www.jeffreymiller.ca

On July 25, 2015, the Globe and Mail published a special feature by its justice reporter,
Sean Fine, detailing Prime Minister Stephen Harpers struggle against what he sees as endemic
judicial activism in Canada, particularly in cases involving criminal law and the Charter of
Rights and Freedoms.1 The long article begins with a description of Omar Khadrs application
for a transfer from a federal penitentiary to a provincial facility for adults, on the argument that
this would have been his destination had he been sentenced in Canada for crimes committed as a
youth.2 The presiding judge, Fine writes, had lobbied the prime minister for a promotion on
the court hearing Khadrs application, the Alberta Court of Queens Bench. Part of his new
job, Fine continues, of Chief Justice John Rooke, was assigning cases, sometimes to himself.
Now, the case before him involved an individual in whom Mr. Harper had expressed an
emphatic interest. Rooke C.J. eventually ruled that, as a U.S. tribunal had convicted Khadr as
an adult on several of the charges in issue (never mind that he was fifteen at the time of the
charged crimes), he was to stay in the penitentiary.3
Later in the piece, as evidence of the prime ministers emphatic interest in the case Fine
describes remarks at a press conference, on the day of Khadrs transfer hearing. Prime Minister
Harper insisted that Khadr deserved, in Fines words, the most severe punishment possible.
More precisely, the prime minister said this:
1 Stephen Harpers courts, Focus section, at F-1 and F-5 through F-7.
2 Khadr v. Edmonton Institution, 2013 ABQB 611. Notoriously, prior to an intergovernmental
agreement providing for Khadrs incarceration in Canada, the United States government had held
him in Guantanamo Bay prison for terrorist activities that included a grenade attack in
Afghanistan that killed a U.S. soldier.
3 Ibid. Among other things, Khadr asserted that the sentences imposed by the U.S. tribunal did
not reflect the mandatory minimums an adult would have faced, for the same crimes, under
Canadas Criminal Code.

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This is an individual who, as you know, pled guilty to very serious crimes
including murder and it is very important that we continue to vigorously defend
against any attempts, in court, to lessen his punishment for these heinous acts.
But we will continue to do everything in our power to empower our police and
security forces to deal with threats and to work with the international
community in identifying these, because they are inevitably cross-border in
nature.4
Dennis Edney, Khadrs counsel, complained at the time that Canadians should be
concerned with the interference by our government in the judicial system without waiting for the
facts to come out. This is not about guilt or innocence. This is just about where he [Khadr] gets
placed.5 Fine writes, Politicians rarely comment on cases before a court because it may look
like an improper attempt to influence a judge in other words, it could be a contemptuous
violation of the sub judice rule. Did the prime minister commit such a contempt?
The sub judice or publication contempt rule holds, summarily, that public comments
about active or pending litigation are contemptuous if they pose a real risk of prejudice to the
administration of justice, particularly at or near the trial phase.6 Drawing on law related to the
offence of scandalizing the court, Borins J.A. of the Ontario Court of Appeal has written more
precisely that the risk of prejudice must be serious, real or substantial.7 Part of the irony in
asking whether Prime Minister Harpers comments ran this risk is how often he and Canadian
politicians of all stripes hide behind the rule to avoid controversy, in the absence of any

4 See, e.g., http://globalnews.ca/news/85762/omar-khadr-appears-in-court-as-lawyers-challengehis-adult-prison-detention/.

5 Ibid.
6 Jeffrey Miller, The Law of Contempt in Canada (Toronto: Carswell, 1997), at 101-108; A-G v.
Times Newspapers Ltd., [1973] 3 All E.R. 54.
7 Rogacki v. Belz (2003), 67 O.R. (3d) 330 (C.A.), at para. 30.

Miller Did the PM Commit Contempt? - 3

reasonable likelihood of prejudice.8 It seems that in this case, however, the prime minister would
have acted reasonably to take such cover.
Aldridge, Eady, and Smith characterize the rule as against publishing ex parte statements,9
which makes graphic the ill the rule seeks to address: the potential that litigation will be
influenced unduly to one point of view or special interest. Such potential certainly seems to be
in the air here, all the more insofar as the remarks are those of a stolidly conservative head of the
national government, notorious for his predilection for judicial conservatism and a so-called
law-and-order agenda (including mandatory minimum sentences10 and victim surcharges;11
attempts at draconian child protection law;12 measures to outlaw facilities promoting safe
injection of illegal drugs,13 etc.), on an occasion when the sitting judge had obtained his position
as chief justice with the prime ministers office acting as his champion. While one could argue
that Khadrs transfer application was not necessarily an attempt to lessen his punishment but
simply to make it conform with Canadian policy and principle, the prime minister seems clearly
to imply that the application was indeed the former an attempt at obtaining Crown mercy, or at
least leniency. While contempt must always be proved beyond a reasonable doubt, it would be
hard to deny (reasonably) that the prime minister opposed the transfer as going soft on, in his
view, a particularly bad actor.

8 See, e.g., Lorne Sossin and Valerie Crystal, "A Comment on No Comment: The Sub Judice Rule and the
Accountability of Public Officials in the 21st Century," Dalhousie Law Journal 36.2 (2013), 535-580 at 547-48.

9 Sir David Eady & A.T.H. Smith, eds., Aldridge, Eady and Smith on Contempt, 4th ed. (London:
Sweet and Maxwell), 2011, at 1-71 (page 23).
10 See, e.g., R. v. Nur, 2015 SCC 15, where the Supreme Court strikes down one such provision.
11 See, e.g., http://pm.gc.ca/eng/news/2014/04/03/victim-surcharge and Andrew Seymour, Is
the victim surcharge the next Supreme Court failure for Conservative crime agenda?, Ottawa
Citizen, Jan. 10, 2015.
12 See, e.g., John Ibbitson, Tories on e-snooping: 'Stand with us or with the child pornographers' The Globe and
Mail, Feb. 14, 2012.

13 Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134.

Miller Did the PM Commit Contempt? - 4

While the law stipulates that a conviction for sub judice contempt may be registered only
where contemnors prejudge the issues,14 they need not intend to prejudice the action.15
Intention or none, there need exist only a real and substantial risk that a fair trial will be
impossible in the circumstances of the case.16 Such impossibility need not be manifest; what is
important is the risk of unfairness.
Again, counsel for the prime minister might turn Edneys view around on him insofar as
Khadrs lawyer notes that the trial did not concern his clients guilt or innocence, but an
administrative, correctional matter, many years after conviction and original sentencing. Yet the
cases say that the material stakes in the trial are irrelevant. Interference is interference or, more
precisely, justice is justice.17 While there is no automatic protection of trial fairness over free
expression rights, the protection of trial fairness should be accorded priority, given that the
contempt power is so crucial to the rule of law and preservation of a strong justice system that
limits imposed on other rights by that power are justified in a free and democratic society.
Contempt citations address the creation of a real and substantial risk to the administration of
justice and not trial fairness alone.18

14 A-G v. Times Newspapers Ltd., supra, note 4.

15 Manitoba (A-G) v. Groupe Qubecor Inc. (1987), 45 D.L.R. (4th) 80, at 92. See also R. v. Froese
(1980), 18 C.P.C. 94, at 106 (B.C.C.A.) and see e.g. Roach v. Garavan (1742), 2 Atk. 469 (The St. James
Evening Post case, in which latter an editor cited for sub judice contempt professed ignorance of the
court proceedings.

16 C.B.C. v. Keegstra (1986), 35 D.L.R. (4th) 76 at 78.

17 R. v. Carocchia (1973), 15 C.C.C. (2d) 175 (Que.C.A.). Here, the court found a police officer
in contempt after he issued a press release connecting a wholesaler with organized crime. It was
irrelevant to the contempt matter that the wholesaler was charged only with breaches of a
municipal hygiene bylaw and faced a maximum fine of $100 per offence.
18 Alberta v. The Edmonton Sun, 2003 ABCA 3 (Can LII), at paras. 28-31.

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While courts will avoid contempt citations where alternatives are available19 alternatives such
as venue change, jury sequestration, postponing publication, declaration of a mistrial20 no such
alternatives existed here, with the transfer application literally at bar, except the drastic, lastresort21 mistrial remedy, which the circumstances seem to have made highly unlikely. Although
some have called for a defence of compelling public interest presumably the Khadr case would
qualify in that respect generally Canadian libel law now accommodates such argument22 but the
law of publication contempt does not. Presumably, the distinction is that in defamation actions
we balance personal, reputational rights against the public interest right of free expression; with
publication contempt, we weigh up two public interests, freedom of expression versus the
administration of justice. While cases in both contexts say that one interest does not trump the
other, to date the law seems jealous of its process, still reasoning that the expression involved
is not suppressed, simply postponed.23
Nonetheless, Berger J.A. promotes the public interest defence in the Edmonton Sun case, but in
dissent (while concurring in the result), suggesting this wording:
No finding of publication contempt shall be made if the alleged contemnor establishes on a
balance of probabilities that the decision to publish was taken in good faith in order to inform the
public of a legitimate, compelling and pressing issue of public importance and if, objectively
assessed, the issue is properly so characterized.24

19 C.B.C. v. Keegstra, supra, note 10 at 78.

20 Alberta v. The Edmonton Sun, supra, note 12. See also R. v. CHBC Television, [1999] B.C.J.
No. 219, at para. 75 (C.A.).
21 Ibid, R. v. CHBC Television, at para. 75.
22 Grant v. Torstar Corp. [2009] 3 SCR 640; 314 DLR (4th) 1; Quan v. Cusson [2009] 3 SCR 712; 314 DLR (4th)
55.

23 See A-G v. Times Newspapers Ltd., supra, note 4; Manitoba (A-G) v. Groupe Qubecor Inc.
(1987), 45 D.L.R. (4th) 80 at 90 and 97 (Man. C.A.); and G. Borrie and N. Lowe, Borrie and
Lowe's Law of Contempt, 2d ed. (London: Butterworths, 1983) at 54.
24 Alberta v. The Edmonton Sun, supra, note 12 at paras. 113-19.

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Sections 1 and 2 of Britains Contempt of Court Act, 1981, provide a similar strict
liability defence:
1 The strict liability rule
In this Act the strict liability rule means the rule of law whereby conduct may be
treated as a contempt of court as tending to interfere with course of justice in
particular legal proceedings regardless of intent to do so.
2 Limitation of scope of strict liability
(1)The strict liability rule applies only in relation to publications, and for this purpose
publication includes any speech, writing, or other communication in whatever form,
which is addressed to the public at large or any section of the public.
(2)
The strict liability rule applies only to a publication which creates a substantial
risk that the course of justice in the proceedings in question will be seriously impeded
or prejudiced.
(3)
The strict liability rule applies only if the proceedings in question are active

Proposals for such reform have not retained traction in Canada.25

Sossin and Crystal note that the sub judice rule
is invoked too broadly where the mere existence of litigation or even an
intent to litigate or the possibility of litigation is used as a justification by
government officials for refusing to address an issue in the media. ...
On the other hand, the sub judice rule is applied too narrowly where
government attempts to undermine the integrity of an impartial proceeding by
attempting to influence a court or tribunal through its public pronouncements.26
Is it protesting too much to allege such attempted influence here? Absent a contempt citation, we
will never know, legally speaking, at least. Consider, however, the 1976 instance of Re Ouellet,27
a successful scandalizing prosecution that suggests a juristic answer. The contemnor was a
cabinet minister who told a reporter that he found a particular judicial decision "completely
25 See, e.g., Linda Fuerst, "Bill C-19: Reforming the Criminal Law" (1984) 16 Ottawa L.R. 316.
The situation has not changed since Fuerst published this article. See also Lorne Sossin and
Valerie Crystal, "A Comment on No Comment: The Sub Judice Rule and the Accountability of
Public Officials in the 21st Century," supra, note 6 at 555.
26 Supra, note 6 at 547-548.
27(1976), 36 C.R.N.S. 296.

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unacceptable" and "silly. He added that he could not "understand how a judge who is sane
could give such a verdict. It is a complete shock and I find it a complete disgrace," and said he
would ask the minister of justice to appeal the judgment.
The Quebec Court of Appeal held that, while the right to free expression included public
criticism of judges decisions, for a government minister to characterize the trier as insane was
contemptuous. Even if, the court said, it accepted Ouellets assertion that his shaky English
caused him to say "sane" when he meant "clear-thinking" or "right-minded" (this author's
translations of "sain d'esprit"), this was not exculpatory. Further, the appeal court held that the
summary procedure characteristic of contempt hearings was appropriate insofar as Ouellet was a
federal minister of the Crown, his statement inhibited the court in carrying out its duties, and
news reports had spread his scandalous remarks throughout the country. It was urgent that the
court intervene energetically to limit the damage done to the administration of justice.