Don’t Make Idiots into Martyrs

The Double Aspect view on why an Alberta judge was wrong to order that pandemic deniers promote the expert consensus

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media)” the defendants

must indicate in [their] communications the following:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

 Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.

The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill  ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ―  and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ);  R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now  come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor …  resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.