If a court believes that there may be evidence to prove the criminal nature of the act, it may order for finding evidence for the same.

On 10-06-2020, the court in the case of Vancouver Fraser Port Authority v Brett, 2020 BCSC 876, held that the defendants (Brett) had to vacate the occupied area within three days with certain other specifications. On 16 June 2020, 45 people along with the defendants were arrested by the police under civil contempt of court and the contempt proceedings were brought by the plaintiff against them in pursuant to the Supreme Court Civil Rules. The question involved in the case was whether this act of contempt by the defendant be tried as a criminal or civil action?

On this, the Honourable Chief Justice Hinkson agreeing to the reasons of trial court, referred to the judgment in case of R. v. Krawczyk, 2009 BCCA 250, whereby the judge had referred to the Fletcher Challenge Canada Ltd. v. Miller, Victoria C915008 (S.C.) case and stated that she believes there is evidence that may prove the criminal nature of the issue, i.e. the case is a case of criminal contempt of court and not of civil contempt. At the same time, Chief Justice also clarified that he does not suggest that the case is prima facie i.e. clearly a case of criminal contempt but that with proper evidence, it can be tried under criminal court.

Therefore, in light of the fact that the matter is of public interest, Justice Hinkson invited the Attorney General to get involved in the matter. He further stated that in case if Attorney General decides not to proceed with the criminal contempt proceedings due to either insufficient evidence or any other reasons, the plaintiff shall proceed with the civil contempt application as filed earlier.

The defendant then pleaded that this order to try the matter under criminal court would be an inefficient use of public resources and therefore, should not be granted. To that the Justice explained that the legislature has been given exclusive jurisdiction to allocate funds from the public purse. Secondly, that defendant cannot by himself decide that the criminal prosecution, in this case, would be a wise or unwise use of public resources. Thereby apprehending that the Attorney General will weigh the matter properly against the importance of the rule of law in the democracy of Canada, the Court didn’t accept this contention of the defendant. Further, the defendant contended that a matter between private parties can be litigated without inviting the crown. But the court was of the view that since the case was regarding the enforceability of the order of this court which upholds its dignity and the rule of law, this matter is not just between the private parties.

Thus, after analysing all the submissions, the court referred the matter to the British Columbia Prosecution Service on behalf of the Attorney General to examine the circumstances surrounding the arrest of the defendants as on 16 June 2020 and to evaluate the nature of the case and eventually determine whether the case should be tried as criminal contempt or as civil contempt.