Incarceration (Civil Contempt)

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Criminal Code (R.S.C., 1985, c. C-46), s.127

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

[1]

Chiang (Re) , 2009 ONCA 3 (CanLII)[2]

[9] Our law has distinguished between civil and criminal contempt of court. A person who breaches a court order, other than an order for payment of money, commits civil contempt of court: see rule 60.11(1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. The contempt here is breach of orders requiring financial disclosure. Where the breach is accompanied by an element of public defiance or public depreciation of the court's authority, the contempt becomes criminal: see United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37.[3]

[10] The distinction between civil and criminal contempt is not always clear cut. Both have a common root: only by having the ability to exercise the power of contempt can judges maintain respect for our courts and for the rule of law. Moreover, recent case law has recognized that even in purely private litigation, the breach of a court order and the resulting sanction for contempt invariably reflect public disrespect for the authority of the court: see Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79[4] and Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52.[5] Nonetheless, the distinction persists and the case before us is undoubtedly a case of civil contempt of court.

[11] In civil contempt, the court's emphasis is less about punishment and more about coercion -- attempting to obtain compliance with the court's order. Still, civil contempt bears the imprint of the criminal law. Civil contempt must be made out to the criminal standard of proof beyond a reasonable doubt. And, a person found in civil contempt of court may be committed to jail or face any other sanction available for a criminal offence, such as a fine or community service: see Pro Swing, at paras. 34-35. C.

[90] Custodial sentences for civil contempt are rare. Lengthy custodial sentence are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily, the mere conviction for contempt together with a modest fine suffices to obtain compliance and protect the court's authority. Ordinarily, incarceration is a sanction of last resort: see Robert J. Sharpe, Injunctions and Specific Performance, 3rd. ed. (Aurora, Ont.: Canada Law Book, 2000), at para. 6.120.

[91] In the trial judge's view, however, the Chiangs' contempt was not deserving of leniency. Both to denounce their actions and [page507] to deter others by showing that the court will not tolerate this kind of conduct, the trial judge concluded that lengthy periods of incarceration were required [at para. 48]:

This is not a case deserving of leniency. There are no mitigating factors. There has been no genuine apology and no compliance. The contempt has not been purged. The conduct of Mr. and Mrs. Chiang must have concrete consequences in order to 'repair the depreciation of the authority of the court' and to send a message to litigants and the public that this kind of conduct will not be tolerated. Undertakings given to a court are to be fulfilled; apologies tendered to a court are to be genuinely remorseful; court orders are to be obeyed in every respect. Mr. and Mrs. Chiang have made a mockery of the system of justice. The prospect of a short period of incarceration did not deter them in 2003. The strong and denouncing language of the court and the prospect of a lengthier period of incarceration did not deter them in 2005.

[92] But for the terms of the July 16, 2003 consent order and the 2005 proceeding before Farley J., we would agree with the trial judge and with the sentences that she imposed.

(2) Was the trial judge entitled to impose sentences greater than seven days?

[93] The trial judge delivered three excellent and persuasive sets of reasons. We entirely agree with all of her reasons, save on this one issue. Our disagreement has its roots in the terms of the July 16, 2003 order and the court's failure to amend that order in 2005.

[127] We set aside the sentences imposed by the trial judge, and in their place substitute a sentence of seven days' imprisonment for each of Jay and Christina Chiang. We also declare that Jay Chiang has served this sentence. We do so on the sole ground that the terms of the July 16, 2003 consent order did not entitle the trial judge to impose a first sentence of imprisonment greater than seven days. In all other respects, we dismiss the Chiangs' appeal.

[2] [3] [4] [5]

Carr-Carey v. Carey, 2014 ONSC 6764 (CanLII)[6]

[9] In R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, Lamer C.J.C.,[7] for a unanimous court, at para. 29, made it clear that a conditional sentence is a sentence of imprisonment. The sentence of imprisonment is served in the community, subject to conditions. It is intended to be punitive, but also addresses rehabilitative objectives.

[10] At para. 35, Lamer C.J.C. noted that Parliament intended a conditional sentence to be more punitive than a suspended sentence and probation. At para. 39, he stated that where an offender breaches a condition without reasonable excuse, there is a presumption that the offender will serve the remainder of his or her sentence in jail. This is unlike breach of a probation order, which requires a new charge. He stated that the constant threat of incarceration will help to ensure that the offender complies with the conditions.

[6] [7]

Kopyto v. Clarfield, 1999 CanLII 7318 (ON CA)[8]

The final ground of appeal calls into question the validity of the contempt order made by Roberts J. The appellant submits that Roberts J.'s order was a nullity because it prescribed a predetermined penalty of ten days' imprisonment in default of the appellant purging his contempt. In our view, there are two reasons why this argument must fail.

First, we are satisfied that Roberts J. was entitled to make the order he did under rule 60.11(5)(b), which provides as follows:

60.11(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
. . . . .
(b) be imprisoned if the person fails to comply with a term of the order;

The appellant does not suggest that the sanction of imprisonment for civil contempt is unlawful or that it offends against his s. 7 Charter rights. Rather, he submits that predetermined custodial sanctions, envisaged by rule 60.11(5) (b), violate his s. 7 Charter rights because he is deprived of the opportunity of having a hearing and making representations as to the suitability of the penalty.

In our view, this argument is totally misconceived. What the appellant fails to recognize is that the predetermined penalty is the product of a hearing in which the party at risk is afforded all the procedural protections which accord with the fundamental principles of justice: see McClure v. Blackstein (1987), 17 C.P.C. (2d) 242 (Ont. H.C.J.) at p. 248.

Once this is understood, it becomes apparent that the nature of Roberts J.'s order did not work to the appellant's disadvantage but it accrued to his benefit. Having found the appellant in contempt of Master Peppiat's order, Roberts J. could have ordered his immediate imprisonment. As it is, he chose not to, preferring instead to give the appellant one more chance to purge his contempt. There is nothing unconstitutional about Rule 60.1 l(5)(b) and Roberts J. was fully entitled to structure his order as he did.

The second reason for refusing to give effect to this argument arises from the nature of the motion brought before Coo J. The motion before Coo J. was not to enforce the penalty provision of Roberts J.'s order. Rather, it was a free standing motion under rule 60.11(1) to have the appellant found in contempt of Robert J.'s order. Unfortunately, neither the parties nor Coo J. seemed to appreciate this.

With respect to Coo J., in approaching the matter as he did, he misinterpreted his function. As his reasons indicate, Coo J. was under the mistaken belief that he was bound by the penalty provision of Roberts J.'s order. That was not the case. To the extent that he was satisfied of the appellant's contempt in respect of Roberts J.'s order, he was entitled to make any order available under rule 60.11(5) that he deemed appropriate.

Had Coo J. followed the correct approach, he might well have imposed an additional period of custody on the appellant over and above the ten days which Roberts J. had imposed upon him for his contempt of Master Peppiat's order. As it is, Coo J.'s mistake enured to the benefit of the appellant and he ended up receiving one punishment for two separate and distinct contempts.

Under ordinary circumstances, we would remit the matter to Coo J. for disposition. However, this relief was not requested by the respondent and, as we have indicated, Coo J. felt that the period of ten days' imprisonment was appropriate. It follows, in our view, that the appeal should simply be dismissed.

In the result, the appeal is dismissed with costs.

[8]


Trade Capital Finance Corp. v. Cook, 2017 ONCA 281 (CanLII)[9]

[46] The appellants argue that ordering a 90 day custodial sentence is grossly disproportionate for what it describes as a first instance of non-compliance. They further argue that they made massive efforts to comply with the extensive production obligations imposed.

[47] The motion judge did not view the appellants’ conduct as either a first instance of non-compliance or as an imperfect but well-intentioned attempt to comply with an onerous production obligation. He found that the appellants breached the Mareva Order continuously, even after the endorsement of Ricchetti J., service with the contempt motion, and after being found in contempt.

[48] The motion judge was not impressed with the production efforts of the appellants. The appellants’ production obligations under the Mareva Order were not satisfied, in the view of the motion judge, by simply dumping 1,000 boxes of documents on the respondent. These are not the records of an unsophisticated enterprise, but of a financial services corporation. The motion judge made no error, in my view, in requiring the appellants to provide a “comprehensive and detailed written inventory” of the documents contained in the 1,000 boxes.

[49] It is important to note that the appellants made no proposal whatsoever as to how they would proceed to satisfy their obligations, and merely invited the respondent to consult with them. The motion judge found this to be insufficient. What the appellants describe as a mammoth task is hardly novel or unprecedented. At a minimum, the appellants ought to have put before the motion judge a plan from which it could have argued for an extension of time before the penalty hearing. It did little more than argue that the task was a large one, and that the respondent had not provided any assistance. The motion judge was accordingly unimpressed.

[50] The motion judge made no error in principle: he did not, as the appellants argue, overemphasize punishment, or lose sight of the purpose of contempt sanctions, namely to secure compliance. To the contrary, the intermittent nature of the custodial sentence was expressly intended to facilitate compliance with disclosure obligations.

[9]

References

  1. Criminal Code (R.S.C., 1985, c. C-46), <https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html>, retrieved on 2020-09-15
  2. 2.0 2.1 Chiang (Re) , 2009 ONCA 3 (CanLII), <http://canlii.ca/t/22223>, retrieved on 2020-09-10
  3. 3.0 3.1 United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 SCR 901, <http://canlii.ca/t/1fscs>, retrieved on 2020-09-10
  4. 4.0 4.1 Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 SCR 1065, <http://canlii.ca/t/1fs83>, retrieved on 2020-09-10
  5. 5.0 5.1 Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 SCR 612, <http://canlii.ca/t/1q0dw>, retrieved on 2020-09-10
  6. 6.0 6.1 Carr-Carey v. Carey, 2014 ONSC 6764 (CanLII), <http://canlii.ca/t/gfcct>, retrieved on 2020-09-10
  7. 7.0 7.1 R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, <http://canlii.ca/t/527b>, retrieved on 2020-09-10
  8. 8.0 8.1 Kopyto v. Clarfield, 1999 CanLII 7318 (ON CA), <http://canlii.ca/t/1f9cb>, retrieved on 2020-09-10
  9. 9.0 9.1 Trade Capital Finance Corp. v. Cook, 2017 ONCA 281 (CanLII), <http://canlii.ca/t/h311v>, retrieved on 2020-09-10