INTRODUCTION

[1]           Defendants have been summoned by an order of the Honourable Mr. Justice Claude Auclair, j.c.s issued on July 26, 2011 pursuant to Article 53 of the Québec Code of Civil Procedure ("C.C.P.") to hear the proof and defend against a charge of contempt of court.

[2]           Prior to the hearing before the undersigned, proof was communicated through the detailed written motion and the exhibits filed in support thereof.

[3]             Plaintiff alleges that Defendants failed to obey an order of this Court issued as part of the judgment of the Honourable Mr. Justice Claude Larouche, j.s.c. ("Larouche JSC"), on April 11, 2011.  Such order was modified by the Honourable Mr. Justice Jacques Léger, j.c.a. ("Léger JCA") on May 27, 2011.

FACTS

[4]           The Larouche JSC judgment of April 11, 2011 recognizes the Plaintiff's servitude to use a certain beach on Lac Tremblant, Québec, and the right of passage thereto over land owned by the Defendant Trust of which Mr. Chamandy is the Trustee.

[5]           The judgment also orders Defendants: (i) Not to limit or restrict the use of the servitude and (ii) to remove certain fences which block access and to provide a key to gates blocking the access.  Moreover, the Larouche JSC judgment ordered provisional execution notwithstanding appeal.

[6]           Consequently, following the Inscription in Appeal, Defendants' Motion to a judge of the Court of Appeal sought the suspension of provisional execution.

[7]           The judgment of Léger JCA, sitting as a judge alone of the Court of Appeal, suspends provisional execution of the Larouche JSC judgment in part.  For the present purposes, the conclusions of the Larouche JSC judgment, remaining in force, and as modified by the Léger JCA judgment are as follows:

·          "5 ORDERS Defendants not to limit, restrict or otherwise prohibit Plaintiff, her family members, or accompanied guests from using the Servitude."

·          [42]     ORDERS Defendants to provide Plaintiff with a key, or another means necessary to open the permanent fences seen in the expert report Exhibit P-21, and illustrated in the Annex 1 of the said report, in order to grant Plaintiff, her family members and accompanied guests, free, unencumbered and unrestricted access, at any time between 8 a.m. to 8 p.m., access to the Servient Land in order to exercise their right under the Servitude."

[8]           There is no dispute as to the location of the servitude.  The report of the surveyor including plans as well as photographs were adduced in evidence before the undersigned.

[9]           The right of access goes down Defendants' driveway, which is gated.  The gate is operated by a remote control electronic device (similar to the remote control of a television) with a type of Allen key as a backup for manual operation should the electronic system fail.

[10]        After one enters through this gate, and as one moves along the driveway toward the lake, there is a second gate which leads to the beach which is completely fenced in.  This second gate is padlocked.

[11]        Plaintiff led into evidence through herself, her husband, her daughter and son-in-law, that on three occasions at the end of June and the beginning of July 2011, they were not given unrestricted access to the beach because they were obliged to call a security guard to open the gates.  On one occasion, they simply gave up because the wait was too long or the process too annoying such that they lost the urge to go to the beach.  More details of these events follow.  However, these events were pre-dated by an exchange of lawyers' letters adduced into evidence and relevant to the case.

[12]        On June 2, 2011, after Léger JCA issued his judgment, Defendant through his attorney wrote to Plaintiff (Exhibit P-11) providing the office and mobile telephone number of a certain Mr. Lapointe who had been instructed by Defendant to open the gates on receipt of 24-hour notice from Plaintiff so that Plaintiff could exercise the right of passage to the beach.

[13]        Plaintiff responded through her attorneys informing Defendant, inter alia, that the requirement of 24-hour notice contravened the Court order, and particularly paragraph 5 thereof, ordering Defendants not to limit or restrict access as well as paragraph 42, ordering Defendant to provide a "key or another means necessary to open the gate" (...) "in order to grant Plaintiff, her family members and accompanied guests, free, unencumbered and unrestricted access".  Accordingly, Plaintiff called upon Defendant to remit the keys and/or electronic devices to open the gates.

[14]        On June 20, 2011, Defendants' attorney replied that they were not obliged to remit a key under the order of Léger JCA and at least implying that access by the security guard, Mr. Lapointe, constituted "any other means" to access the beach.  Defendants' attorney added that it was "impossible" to remit a key though no reason is specified in the letter.

[15]        As indicated above, on three successive occasions, on June 27, July 2 and July 3, 2011, Plaintiff, her husband, her daughter and her son-in-law, in various combinations, requested access from Mr. Lapointe.  On two occasions (July 2 and 3, 2011), access was eventually granted with waits ranging from 30 to 45 minutes.  On June 27, 2011 the wait was such that, as stated above, the daughter and the son-in-law changed their minds about going for a swim in the lake.  Significantly, once inside the two gates at the beach, people were obliged to call Mr. Lapointe once again and wait for his arrival to unlock the gates to make the return trip back to their home.

[16]        When the remote control and key were requested from Mr. Lapointe, the latter refused informing Plaintiff that he was not authorized by Mr. Chamandy to remit possession of these items.

[17]        In view of the foregoing, Plaintiff seeks a finding of contempt against Defendants for their failure to obey the Court's order.

DEFENDANT'S POSITION

[18]        Mr. Chamandy opted to testify in his own defence.  He did not deny any of the evidence aforesaid, but explained that prior to his acquiring the land in question, people would use the land and beach access as if it were public property.  There were even campfires lit on the beach.  He was compelled to fence the land for security purposes.  This is similar to the testimony at trial as indicated in the Larouche JSC judgment (paragraphs 19 to 21).

[19]        The 24-hour notice indicated in his attorney's letter was reduced to 20 minutes.  Mr. Chamandy feels that this is acceptable because of a subsequent judgment in another matter.  It appears that Plaintiff is not the only beneficiary of a servitude.  At least one other party has sued Defendants and the safeguard order issued in that other case (Perron vs. The Mont-Tremblant Residence Trust and Gregory Chamandy, 500-17-062352-102) on January 26, 2012 produced in this record provides for a 20 minute (maximum in summer months) delay to give access.

[20]        Mr. Chamandy also testified that he has now requested Mr. Lapointe to hire an assistant to be present on the property, so that there be no delay for the beneficiaries of the servitude who wish to have the gate unlocked.

[21]        Mr. Chamandy confirmed that he refused to remit a key or a remote control device to Plaintiff and instructed Mr. Lapointe not to do so.

[22]        Defendants plead not guilty to the charge of contempt, and through counsel argue as follows :

22.1     The Court order to be respected is not clear;

22.2     The contravention (or actus reus of the offence) has not been proven beyond reasonable doubt;

22.3     The absence of a guilty intent (mens rea) to fail to respect the Court order.

Lack of a clear order

[23]        Defendant pleads a lack of clarity in the Court's order because the reasons of Léger JCA refer to an agreement between the parties that the injunctive provisions should read as follows:

"ORDERS Defendant to provide Plaintiff with a key or any other means necessary to open the permanent fences"

whereas the conclusions of the Léger JCA judgment read : 

"or another means (...)"

[emphasis of the undersigned]

[24]        Moreover, states counsel, a review of the salient passages of the exchange during the hearing before Léger JCA, underlines the latter's view that the conclusions of the Larouche JSC judgment are not clear.

The contravention of the order has not been proven beyond reasonable doubt

[25]        Defendants proffer that providing the telephone number of the security guard, Mr. Lapointe, who was instructed to attend to open the gate within 20 minutes of receiving a telephone call constitutes providing "another means" to open the locked gate, and therefore Defendants have complied with the injunction as modified by Léger JCA.

Mens Rea

[26]        Defendants submit that in all of the circumstances, particularly of the security problems on the beach, having provided a means to access the beach and exercise the right of servitude indicates that Defendants had no intention to contravene the order (or, as counsel put it "to be in contempt of court").

DISCUSSION

[27]        There is no doubt that contempt is a quasi penal matter; that procedure must be applied strictly; [1] and the criminal standards and safeguards apply.  Accordingly, the Defendants are not compellable and the burden of proof is on Plaintiff to prove all elements of the offence beyond reasonable doubt [2].

[28]        Furthermore, and to broach the first ground of defence, the order to be complied with must be precise [3].

The order must be clear

[29]        That which is prohibited or that which must be done in compliance with the Court order should not be open to reasonable doubt.  Any such reasonable doubt must be resolved in favour of the Defendants who must be acquitted.

[30]        In such regard, the wording of the order must be examined as well as the context or spirit of the decision giving rise to the order ^[4].

[31]        Upon reading the Larouche JSC judgment, the Léger JCA judgment as well the transcripts of the hearing before Léger JCA., it is clear beyond any reasonable doubt that the order was clear and not vague.  It was very clear to Defendant and his counsel that Defendant had to provide a key or other means which in context meant the electronic device to open the gate near the public roadway. 

[32]        The review of the transcript of the proceedings before Léger JCA indicates that counsel for Defendants would have liked Léger JCA to modify the order to provide for the security guard arrangement as set out in the safeguard order in the Perron case (Exhibit D-5).  However, it was made clear by Léger JCA during the hearing, that he was unable to redraft the Larouche JSC judgment as he lacked jurisdiction sitting as a judge alone of the Court of Appeal.  It was further made clear that it was not open to Defendants to block access and that Plaintiff wanted a key.  It was also clear that notwithstanding Plaintiff's attorney stating clearly that Plaintiff wanted a key that Mr. Chamandy was at the time contemplating the system of obliging Plaintiff to call Mr. Lapointe to arrange for Mr. Lapointe to attend and open the gate.

[33]        Accordingly in the opinion of the undersigned and on the basis of the text of the order, as well as the context of the Larouche JSC and the Léger JCA judgments, the order was clear and it was required by the order that Petitioner be given a key or other means such as the electronic device to allow Petitioner to open the gate.

[34]        That contempt is ¨"strictissimo juris" is not a licence to violate Court orders.  The Court of Appeal has indicated that rather than relying on the letter of an order, the Courts should examine the context of the order "and evaluate it according to the specific and particular circumstances of the case" and "inquire whether Defendant could reasonably have been aware that its acts or omissions fell under the order"[5].  In other words, Defendants cannot hide behind a restrictive and literal interpretation of the order and make a mockery of it and the administration of justice[6].  In any event, the argument, even if it were correct (i.e. the words "or any other means" left it open to provide the telephone number of the security man) is not sufficient to exculpate Defendant for the reasons which follow.

Contravention of the order

[35]        The judgment orders Defendant to provide a key "or other means to open the gate (...) in order to grant Plaintiff, her family members and accompanied guests, free, unencumbered, and unrestricted access, at any time, between 8 a.m. and 8 p.m. (...)".

[36]        Being obliged to call a security guard 24 hours or 20 minutes in advance is not "unencumbered or unrestricted access".  Clearly, it is a restriction on its face.  This is all the more so when considering the testimony of Petitioner, her husband, daughter and son-in-law which described the restriction in concrete terms.

[37]        On June 27, 2011, when the son-in-law called Mr. Lapointe, he was told that Mr. Lapointe was unavailable and was reproached for not requesting beach access 24 hours in advance.  Only upon insistence by the son-in-law, did Mr. Lapointe relent and agree to see what arrangements could be made.  Mr. Lapointe called back in 25 minutes to say that he would be available to open the gate in another 15 minutes.  Mr. Lapointe then called again to say that he would be later than the indicated 15 minutes.  The son-in-law and daughter by this time gave up and did not go to the beach.

[38]        On July 2, 2011, Mr. Lapointe came to open the gate within 15 minutes of a telephone request.  Another 15 minutes wait was experienced when Petitioner and her family called from the beach to be let out as they had been locked in.

[39]        The experience on July 3, 2011, was similar.

[40]        This is not unencumbered or unrestricted access.  It is not only cumbersome but the requirement of booking an appointment with Mr. Lapointe is nothing else if not a restriction.

[41]        Accordingly, even if the text of the order is broad enough to include a security man in possession of a key or electronic device as "another means necessary to open the permanent fences", the person would have to be posted at the gate permanently, between 8 a.m. and 8 p.m. to at least argue credibly that the arrangement provided access that was not encumbered or restricted.

[42]          Accordingly, in the Court's opinion, the actus reus has been proven beyond any reasonable doubt.

Mens Rea

[43]        Defendant's counsel argues that the proof shows that Mr. Chamandy's efforts to provide access demonstrates that "he did not want to be in contempt".  Unfortunately, as a matter of law, this is a misinterpretation and not a defence.  It is the intention to commit the act and not the intention to commit contempt of court which is in issue [7].

[44]        Defendant's counsel is incorrect when he pleads that providing some access rebuts the intention to commit contempt of court.  This is not the issue.  The issue is whether Defendant Chamandy intended to commit the positive act or the omission of not giving the remote control or the key or any other means to provide unrestricted access.

[45]        The intention of Mr. Chamandy is clear from the evidence including particularly the exchange of letters of the attorneys, as well as his testimony in Court.  He is not willing to give a key or the elecronic device, or the unrestricted access stipulated by the judgment.  He explained before the undersigned the problem of unauthorized people using the land and the beach which caused him to build the fence.  He obviously seeks to continue to maintain the same control over access to the land subject to the servitude, notwithstanding the Larouche JCS judgment.

[46]        Accordingly, intent has been proven beyond a reasonable doubt. 

SUMMARY

[47]        Since both the act and the intention have been proven beyond reasonable doubt, the Court has no alternative but to reach a guilty verdict.

[48]        Both Defendants are subject to the orders in the Larouche JCS and Léger JCA judgments.  However, the acts and instructions forming the actus reus and the mens rea are that of Defendant Chamandy.  It would be redundant and disproportionate to find the Defendant Trust guilty of contempt.  Accordingly, Defendant Chamandy only will be found guilty of contempt of court.

[49]        Plaintiff pleaded that the proceedings and proof disclosed five instances of the commission of contempt of court.  There are the three occasions, June 27, July 2 and 3, 2011 when Plaintiff and her family were denied appropriate access, as well as the two letters from Defendants' counsel (Exhibits P-11 and P-14).  The letters are a declaration of intent made by Defendants' attorney on behalf of Defendants.  They do not by themselves constitute the act of not providing access.  Accordingly, the Court will find Defendant Chamandy guilty of contempt on three occasions, as stated above (June 27, July 2 and 3, 2011).

[50]        As indicated to the attorneys during the hearing given the guilty verdict, the parties and their attorneys will be summoned to a sentencing hearing.

CONCLUSIONS

FOR ALL THE FOREGOING REASONS, THE COURT :

[51]        GRANTS, in part, Plaintiff's "Requête de la demanderesse/requérante pour qu'une ordonnance spéciale de comparaître d'une accusation d'outrage au tribunal soit rendue" and finds Defendant Gregory Chamandy guilty of contempt of court for having failed on three (3) occasions (June 27, July 2 and 3, 2011) to respect the order of the Honourable Mr. Justice Larouche, j.s.c., issued on April 11, 2011 as modified by the order of the Honourable Mr. Justice J. Léger, j.c.a. on May 27, 2011.

[52]        ORDERS Defendant Gregory Chamandy and summons counsel of the parties to appear to adduce evidence, if any, and make representations regarding sentence on July 18, 2012 at 9:15 a.m. or such other date as the Court may order.

THE WHOLE WITH COSTS AGAINST DEFENDANT GREGORY CHAMANDY.