Duhaime's Law Dictionary


Contumacy Definition:

Intentional contempt of court.

"The contemptuous disobedience of an order of court; refusal to submit to authority."

Thus John Ballentine defined contumacy, adding that a contumacious witness was one who:

"... testified in such a manner as to render him guilty of contempt of court. (Also), a witness who refuses to testify or testified falsely."

A term of art in the law of contempt of court as litigants may suggest that as a finding of contempt requires the alleged contemnor to deliberately and wilfully disobey a court order, an intentional breach of the court order must be proven, sometimes referred to as a contumacious intent.

A proper statement of the law is as proposed by Robert Sharpe:

"To constitute contempt, the act or omission which contravenes the injunction must have been intentional but not necessarily deliberately contumacious. It is well established that it is no answer to say that the act was not contumacious in the sense that, in doing it, there was not direct intention to disobey the order. The requirement of intention excludes only casual or accidental acts."

The absence of contumacy is a mitigating factor but not a defence or an an exculpatory circumstance. As stated by Justice Rennie of the Federal Court of Canada in Setanta Sports:

"Although the evidence required to prove contempt is equivalent to a criminal case, and proof must be beyond a reasonable doubt, mens rea is not an element that must be proven. It is not necessary to show that the defendant is intentionally contumacious though contumacious conduct may be a mitigating factor when it comes to penalty."

In 1994, Mine Workers v Bagwell, Justice Blackmun of the United States Supreme Court wrote these words of judicial wisdom:

"Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct. Contumacy often strikes at the most vulnerable and human qualities of a judge's temperament and its fusion of legislative, executive, and judicial powers summons forth the prospect of the most tyrannical licentiousness."

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