Jeffrey Miller

Contempt by kazoo? “Cacophony Forever” on Quebec picket lines – and in modern life

No, it isn’t a poisson d’Avril, which is how they say “April Fool’s Joke” in Quebec. On April 1 the province’s court of appeal held that, in blowing “flutes” during a three-year labour dispute, picketers did not attempt to “intimidate, threaten, impede or otherwise harm or attempt to harm, directly or indirectly, the free movement and work of the applicants as well as their various clients, associates, suppliers and staff, or all other persons wishing to enter or leave the said establishments or to freely undertake their work or activities there.”*

The quoted bit is the meat of an injunction issued from a lower court, against unionized employees locked out by car dealers and automotive repair shops in Saguenay Lac-Saint-Jean. Before legislation ended the dispute, the employers had brought 90 contempt motions. This one, concerning unionist Alexandre Caron, actually stuck – at first.

Caron was fined $950 for (among other things) harming or attempting to harm employees, clients, and suppliers of kazooAutomobiles de Royaume, and their work there, by loudly blowing a trumpet and flutes (sometimes during client meetings), intimidating them by photographing them at his employer’s premises from an adjacent property, as well as calling the used-car sales manager a “little fatso” and telling him to get “back in the garage and eat your baloney.”

This sort of cacophony continued for another couple of months, it seems, at up to 100 decibels (apparently with the aid of speechifying over loud-hailers, perhaps as a response to complaints about the “music”), because the employers then managed to get another court order, limiting the noise to 60 decibels. Presumably this was loud enough to protect the unionists’ constitutional right to throw tantrums without unduly impeding business operations. But by then, Caron had been ordered to show cause why he should not be convicted of disobeying the injunction.

On that contempt motion, the judge below found that not only had Caron exercised his collective bargaining rights by blowing a trumpet and flutes, but also a kazoo, whistles, and an “air pump.” (Maybe he attached it to some bagpipes?) “The frequency, duration, repetition and intensity of the noise,” the motion judge held, “reached intolerable levels, making it difficult, nay, impossible, for the applicant’s employees to work” – thereby constituting a contempt by disobedience of the injunction.

But the Court of Appeal has disagreed, two judges to one. “Regarding noise,” Justice Levesque ruled for the majority, the injunction “was ambiguous.” It “made no mention of the applicants’ management or their employees. It referred only to ‘the applicants’ work,’” which comprised “the sale, maintenance or repair of motor vehicles.”

Where the dissent thought the employers were perfectly entitled to get judicial assistance in turning the soundtrack down from fortissimo, the majority held this attempt to preserve their businesses against them, given that the employers had sought the noise-reduction order after Caron was cited for contempt: seeking that second order, the majority said, meant the employers admitted the ambiguity about noise in the original injunction …

Never mind the introduction of loud-hailers, which seem to have allowed the majority to imply that the noise could have increased between the time Caron was cited for contempt and the date when the court issued the noise injunction. The din probably did get louder, all right, though the court does not say what that has to do with whether the previous non-music impeded business unduly. In any event, the majority decided in Caron’s case, there seemed to be “no proof that the noise was meant to impede or limit work” or “proof beyond a reasonable doubt that it intimidated” those still working.

The emphasis is mine, because last year the Supreme Court of Canada made crystal clear that the test for contempt by violation of a court order (here, the injunction) is not whether the accused person intended to thumb his nose at the court. Contempt of a court order occurs when the accused intentionally performs an act the order forbids (or an act contrary to what it demands) – in this case, acting to disrupt the employers’ operations beyond conventional, lawful picketing. What else would Caron have meant to do with his “music”? Whether he thought he acted within the injunction’s terms is irrelevant.

As a society, we seem to have become terrified of peace – of being alone with our own thoughts, or perhaps of the poverty of our materialism, staring at phones instead of the flowers and trees, playing boom-boxes in SUVs instead of listening to the birds and wind, demanding Wi-Fi in wilderness areas instead of letting our minds wander. Fair enough, the contempt remedy is meant to be a last resort, and one can imagine how frustrated the unionists must have become during three years of lock-out. But it is hard to know where the majority judges imagine that distracting but lawful noise ends and intimidation, harm, or impediment begins.

For three years the unionists were already picketing, shouting, filming, slanging off those still working, using mirrors to reflect blinding light into the workplaces, and so on. Nobody was telling Caron that he couldn’t sing “Solidarity Forever” or chant “No justice, no peace or oil changes.” How do ear-splitting flute solos (one imagines screechy plastic recorders rather than silver Yamahas and boxwood Olwells) amount to legitimate collective bargaining, particularly in the face of a court order prohibiting workplace harassment, and more particularly when balanced against the rights and well-being of one’s fellow workers? As the decibel level of modern life increases, when will we pick up a loud-hailer and shout above the din that enough is too much – that, from the invention of the wheel forward, technology has brought us all this way, only to see us turn it into Frankenstein’s flute-playing monster?

*The judgment is in French. The quotations and paraphrasing are from my own translation.

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