Speak No Evil; Breach No Order
A Summary by Adam R. Thibert, B.A. (Hons.)
R v Dhillon, 2019 BCCA 373
Heard June 18, 2019
Decided October 30, 2019
Sometimes, civil law matters can lead to criminal law matters. This summary illustrates this perfectly.This case revolves around bankruptcy. In bankruptcy, a bankrupt person’s property is seized by a trustee whose job it is to sell that property. The money made from selling that property will be used to repay debts the bankrupt person has – bills, loans, and taxes she has not paid, and so on.
The courts play a supervisory role in administering (sorting out) bankruptcies. Parties come to court when they need the court’s intervention or approval, but courts are otherwise not actively involved.
In any case – be it a bankruptcy case, criminal case, or any other case – what a judge says, goes, unless appealed. So, when a court orders something to happen or not happen, parties must comply with the order. Otherwise, the court has the authority to charge any disobedient parties with contempt.
Contempt (of court or of parliament) is a common law offence; it is the only common law offence, in fact. This means it is the only criminal offence not explicitly written down in the Criminal Code of Canada. Disobeying a court’s order, disrupting court or parliament, or generally offending the court or parliament’s operations will typically earn you a contempt charge. Judges have great discretion in assigning this charge. And as we will read in this case summary, it is a tough charge to beat.
What are the Facts?
Mr. Satinder Paul Singh Dhillon was involved in a bankruptcy proceeding – the proceedings of the bankruptcy of Erwin Singh Braich. Tempers and disrespect during the proceedings led the judge, Chief Justice Brenner, to make an order on July 15, 2010 to all people connected to the bankruptcy:
“until further order of the Court, each of … (ii) Satinder Dhillon, … shall not, either directly or indirectly, make or continue any publication of any kind including in a pleading which expresses any disparaging or defamatory statements about the Trustee, counsel for the Trustee, or any other person or entity connected to the administration of this bankruptcy;”
In simple terms, the judge ordered Dhillon (and others) not to talk smack about any of the professionals involved in the administration of the bankruptcy, as a means to keep order and help the process along. In his order, the judge also published a list of people the order would apply to – i.e. professionals you could not talk smack about. He wrote clearly that this list was not exhaustive, and that it may apply to others.
Dhillon ignored the order. On March 23 and April 7, 2010, Dhillon published blog posts containing details of the bankruptcy and criticisms of various professionals related to the bankruptcy. When charged with contempt, Dhillon argued the criticisms were true and so they were not “defamatory or disparaging”. Therefore, they did not qualify to be caught by the order. But the judge overseeing the contempt charge – Justice Holmes – did not agree. Dhillon made the blog posts intentionally after being told very clearly not to do anything like that; the blog posts accused the professionals of not acting properly and lawfully, and so implied malice and wrongdoing on their part. This is clearly disparaging, at the very least.
What were the Issues on Appeal?
1) Was the order clear enough to be enforceable?
2) Did Justice Holmes interpret the order properly without being too broad or too unfair to Dhillon?
3) Was the truth available as a defence for criminal contempt?
What did the Court say about this, and for what reasons?
First, the order was very clear. The order clearly named Dhillon, and people he could not speak ill of. He went ahead and published the blog posts anyways, and those posts spoke poorly of people he was not supposed to speak poorly about.
Second, Justice Holmes interpreted the order correctly and with great fairness. One small mistake Holmes made, however, was counting judges in the list of people not to be spoken of. Judges were not listed by the ordering judge, and judges are generally not actively involved in administering bankruptcies. But this is no matter because Dhillon still wrote about many other professionals who were accounted for by the order. And so, even when interpreted in a way that most favourably serves Dhillon’s interests, it still captures the blog posts and still warrants him being charged and convicted with contempt.
Third, the truth is not a defence for contempt. Speaking the truth is a defence for defamation, but it is not a defence for contempt. So, regardless of whether the posts were the truth or not, Dhillon should not have spoken about it publicly because he was instructed not to.
In all, the appeal was dismissed, and Dhillon’s conviction for contempt of court was upheld. Dhillon’s blog posts spoke of the bankruptcy professionals in the same way one may speak of an evil villain. In the end, they were just doing their jobs, and Dhillon could not help himself but to smear them for it. For that, he spent 30 days in prison.