The second edition, greatly expanded, corrected, and updated from the first, is still available for purchase: click here to order.
CLICK HERE to download (free of charge) the draft SUPPLEMENT to the second edition, which will be incorporated in the forthcoming third edition. PLEASE NOTE that insofar as the third edition is in preparation, the supplement is not updated beyond March 14, 2022.
Some highlights of the supplement: (1) The British Columbia Court of Appeal has ruled that, as in the logging cases of the 1990s, environmental “necessity” is not a defence to the refusal to obey an injunction against protesting, here regarding the Trans Mountain Pipeline. (2) The Ontario Court of Appeal has held recently that judgment in the main action against a contemnor is a possible (if particularly harsh) remedy for some contempts, even where the case has not gone to trial. Generally, however, the contemnor’s case should be heard on its merits. (2) the Supreme Court of Canada’s decisions in R. v. CBC (hinting that the court might be prepared to give “publish” a unique meaning in contempt law regarding internet postings), and Morasse v. Nadeau-Dubois; (3) a 2019 decision by the Court of Appeal of Newfoundland and Labrador (Anderson v. NalcorEnergy) that, where an ex parte injunction has been issued to control protests by indigenous peoples at a construction site, the court below errs in lumping in with alleged contemnors a journalist reporting on the protests, insofar as that journalist is not actually participating in the protest activities. (4) Implied contempt or contempt by implication could actually be, well, a thing: Thoreson v Alberta (Infrastructure), 2020 ABCA 146 (CanLII). Note as well the important clarification (at least in Ontario and Manitoba) that while a contempt finding amounts to a final order, the dismissal of a contempt motion is interlocutory. Also, query whether the Ontario Court of Appeal is on shaky ground in R. v. O. (L.): In a “Mr. Big” police sting, O confessed to a brutal murder. This compelled him at trial to testify that the actual murderer was a friend, whom O refused to identify. The jury acquitted O of murder, but the trial judge convicted him of contempt regarding the refusal to identify, sentencing him to three years, never mind the 3.5 years he had spent in pre-trial custody. The trial judge said the murder prosecution and the contempt matter were separate. Does this stand up to critical analysis?
On the second edition:
“The tone, the precise language, and the direct formulations make reading this text not only worthwhile, but enjoyable – a rare experience in this field.” The Honourable Justice André Rochon, Quebec Court of Appeal
“The book is engaging and thorough. It is also one of the few resources with a Canadian perspective published on this topic, and it is the most authoritative on the subject. … Miller’s book was a pleasure to read and review … a must have for any library serving lawyers practising in the area.” Laura Lemmens, Acting Head, Library and Open Information, Alberta Government Library, in 2017 Canadian Law Library Review/Revue canadienne des bibliothèques de droit, Volume/Tome 42, No. 3. Read the entire review here.
* CLICK HERE to read “R. v. Khadr: Did Prime Minister Harper Commit a Contempt of Court?” The Advocates’ Journal, 34:3, Winter 2015 at 10-14.
**To order, click here.**
“…[T]he book is important because it fills a longstanding gap in the existing literature. … This is the first standalone Canadian title on the subject, … . As the Honourable Ian Binnie writes in his foreword to the book, [t]he book is both learned and readable and deserves a welcome in any law library.” I concur.” Melanie R. Bueckert, Legal Research Counsel, Manitoba Court of Appeal, in 2018 Canadian Law Library Review/Revue canadienne des bibliothèques de droit,Volume/Tome 43, No. 2. Read the full review here.
Erratum: On page 195, in the database (“Notice of What?”), please correct the entry for “Children as witnesses, ‘the literature’ on ‘seems consistent that’ they struggle with ‘recollection of precise dates” to read: No. “It is not open to judges to rely upon such literature unless it has been accepted after being properly introduced and tested in evidence” R. v. P. (S.D.) (1995), 98 C.C.C. (3d) 83 (Ont. C.A.) at para. 33, per Brooke J.A. The existing entry erroneously gives the minority view.
Every working day across Canada and the world, courts and other tribunals “take judicial notice” of certain matters – they accept certain “facts” without considering supporting evidence to prove their reliability. This makes judicial notice conceptual dynamite, efficient for extracting diamonds of truth but lethal if employed incautiously. In 1987, for example, in deciding the case of a particularly arrogant denier of the Jewish Holocaust, the Ontario Court of Appeal held that courts could not take judicial notice of the Holocaust as an historical fact, a decision that seemed to many of us breathtakingly blinkered if not racist. The issue was denial (technically, “spreading false news”), not whether Hitler was actually a genocidal maniac. In 1990, the court regained perspective and retreated from the ruling. (These cases were part of the inspiration for my 2007 novel, Murder on the Rebound.)
Historically the law of judicial notice has assumed that “everybody knows” certain things, or at least has ready access to that knowledge. But it uses “everybody knows” in the colloquial sense; at law, the phrase doesn’t include bigots, for instance, other mentally impaired people, or even those of more or less average intelligence who are uneducated or disconnected from anything much beyond their daily, localized existence. In any event, as Ian Binnie noted when he was on the Supreme Court of Canada, what everybody knows can be wrong (as in “Everybody knows you treat a cold with antibiotics”). Many societies that have developed their legal systems from British common law can no longer say that what “everybody knows” is always founded in cultural literacy. Multiculturalism or social diversity has narrowed the breadth of what everyone in such societies shares as knowledge. As the population of observant Muslims and Jews grows, can we safely say that “everybody knows what bacon tastes like”?