"Once our laws are flouted and orders of our courts treated with contempt the whole fabric of our freedom is destroyed. We can then only revert to conditions of the dark ages when the only law recognized was that of might. One law broken and the breach thereof ignored is but an invitation to ignore further laws and this, if continued, can only result in the breakdown of the freedom under the law which we so greatly prize."


Justice Farris
British Columbia Supreme Court
Canadian Transport Company v. Alsbury (1952)

No matter where you look: Ballentine, Bouvier, Mozley & Whitley, Black's, Words & Phrases US, Words & Phrases UK, Oxford Dictionary of Law or even the grand-daddy of all legal dictionaries - the ultimate and most respected of all, Duhaime's Legal Dictionary, the news is not good for contemnors.

One Canadian judge wrote:

"Contempt of court is not to protect the tender feelings of the judge or to give him additional protection against defamation other than that which is available to the ordinary citizen by way of the civil action in damages. Rather it is to protect the public confidence in the administration of justice without which the standards of conduct of all those who may have business before the courts are likely to be weakened, if not destroyed, with the result that the public, rather than having recourse to the courts for the settlement of their disputes, will seek other means, legal or illegal. There is an essential public interest in the upholding of the authority of the courts and of the law."5

Contempt of court is a serious matter and one which can turn a housewife (or should I say house-husband?) into an overnight convict, jail cell and all.

What Is It?

contempt definitionsAs birds go, contempt of court is a strange one. Perhaps rather than birds, one should think platypus, that peculiar Australian mammal that lays eggs. That's because contempt of court quacks like a civil duck but walks like a criminal one.

Justice Laskin of the Ontario Court of Appeal admits as much in SNC-Lavalin Profac v Sankar, at ¶14-15:

"Contempt of court for breach of a court order is an offence against the authority of the court and the administration of justice. It does not have, and must not appear to have, the function of a civil action in tort or for breach of contract. A fine for contempt of court, therefore, should not go to the plaintiff in the lawsuit....

"[C]ivil contempt bears the imprint of the criminal law. A person found in civil contempt may face any sanction available for the commission of a criminal offence. A fine is one of those sanctions."

Even as far back as 1868, an English court stated that:

"[C]ontempt of court ... is a criminal offence...."1

Check out the definitions of contempt of court, criminal contempt, scandalizing the courtin facie contempt and ex facie contempt, obstructing justice and purge.

Contempt of court is essentially a matter of any court of law's inherent jurisdiction. They can all punish for contempt in their face (lawyers call that contempt in facie). Don't believe me? Walk into your neighbourhood courthouse and pick the crankiest judge (hint: usually also the oldest). Just jump to your feet and bellow: "Hear ye! Hear ye! I summons together this gathering of people to form the society of a flat earth" ... over and over again. Don't worry if an armed sheriff approaches you and remember to pack your toothbrush. You're about to experience the ride of a lifetime, handcuffs, jail cell and all, or perhaps just a fine if you chicken out and quickly shut your mouth. [Editor's note: please don't mention my name.]

The superior courts can also punish for contempt ex facie. No, that's not a variety of eggs Benedict: that's the name lawyers give to contempt that occurs outside the courtroom - such as parading outside the courthouse with a big sign that reads: "Justice Boo-Hoo is a big Poo-Poo" [Editor's note: again, if you're going to try this, don't mention my name.]

For examples of conduct that constitutes contempt of court, visit the Pulootzer Prize winning article, Contempt of Court: Greatest Hits [Yet another boring Editor's note, PG Warning: viewers of all ages are asked to check with their parents for guidance as the content of the article may contain material which may incite contempt of court.]

There's also a helpful list at page 990 of Halsbury's Laws of Canada, "Civil Procedure II:

  • Picketing a courthouse;
  • Appearing in court in a drunken state;
  • Attempting to prevent a court from making a decision;
  • Deliberately misleading the court;
  • Taking deliberate steps to impoverish oneself so as to be incapable of satisfying an anticipated adverse judgment;
  • Attempting to frustrate the enforcement of an order;
  • Deliberately violating a court-imposed deadline;Justice Boo-Hoo
  • Refusing to answer questions, such as to identify the source of information;
  • Invading the precincts of a court for the purpose of carrying on a demonstration is a contempt of court; and
  • #1 on the all-contempt list, releasing nitrous oxide (laughing gas) into a courtroom in the hope of livening up a boring trial.2

The courts reluctantly entertain contempt applications. As justice Peter Seaton wrote at 24 of Citation Industries v United Brotherhood:

"All proceedings for contempt are dealt with cautiously, even reluctantly. Proceedings with relation to an order deemed to be an order of the court demand the most careful and thoughtful exercise of the Court's power."

And even when the contempt application is laid before the court, as was stated by Justice Laycraft for the majority in the NWTCA's 1979 decision, Northwest Territories Public Services Association, at ¶53:

"A citation for civil contempt is a matter strictissimi juris because it affects the liberty of the subject. The delict must be defined with particularity and proven beyond a reasonable doubt."

Alleged Disobeying a Court Order

Contempt of court is often used to enforce an order. That is done by alleging that a party to the order intentionally disobeyed - defied - the order.

Justice Selya of the United States Court of Appeals wrote, in US v Perry, making a clear distinction between the option of purging in a civil contempt proceeding, as opposed to the irrelevancy of purging actions in a criminal contempt proceeding:

"[T]he paradigmatic civil contempt sanction is coercive, designed to exact compliance with a prior court order."

In Canada, note these words of the authors of Borrie and Lowe on the Law of Contempt, quoted with approval by the Ontario Court of Appeal in Kopaniak v. MacLellan:

"Criminal contempts are essentially offences of a public nature comprising publications or acts which interfere with the due course of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending to deter or frighten witnesses or by interrupting court proceedings or by tending to impair pubic confidence in the authority or integrity of the administration of justice. Civil contempts, on the other hand, are committed by disobeying court judgments or orders either to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other court orders (for example not complying with an order for interrogatories, etc.). Civil contempts are therefore essentially offences of a private nature since they deprive a party of the benefit for which the order was made. The essence of the courts’ jurisdiction in respect of criminal contempts is penal, the aim being to protect the public interest in ensuring that the administration of justice is duly protected. On the other hand, the courts’ jurisdiction in respect of civil contempts is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order, etc. Reflecting this public/private dichotomy it is broadly true that the prime responsibility for prosecuting criminal contempts is that of the Attorney General or the court, but of the parties themselves in the case of civil contempt."

Remember the platypus? Canada's Criminal Code (§127) makes it a crime for anyone who, without lawful excuse, disobeys a lawful order made by a court of justice and is thereupon guilty of an indictable offence and liable to imprisonment for a term not exceeding two years!3

Moreover, it would seem that contempt of court is a strict liability affair, mens rea being irrelevant. In Sheppard v Sheppard, the Ontario Court of Appeal held:

"[I]n order to constitute a contempt it is not necessary to prove that the defendant intended to disobey the order of the Court. The offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance."

Filing an application to find a party in contempt of a court order is a matter of civil contempt - not criminal; an avenue available to enforce a court order between the parties. Again, quoting from Civil Procedure by Linda Abrams and others, under the heading "disobeying a court order":

"Civil contempt is essentially treated as a private matter. It is up to the aggrieved party to decide whether or not to institute a civil contempt proceeding against a disobedient person."

Punishment

A frequent flyer within the contempt judgments of the world is the availability to the defendant to purge himself of the contempt upon taking some specific action, such as, but certainly not limited to, an apology.4

platypus contemptIn Health Care Corp. of St. John’s, Chief Justice Green of the Newfoundland Supreme Court listed a set of ten principles offered to guide the court in setting the proper punishment for contempt. Here is an extract:

"Deterrence, both general and specific, but especially general deterrence, as well as denunciation, are the most important factors;

"The impact that the contemptuous act has had on the general public, particularly in relation to health and safety matters, is a relevant....

"It is the defiance of the court order, and not the illegality of any actions which led to the granting of the court order in the first place, which must be the focus of the contempt penalty;

"Imprisonment is normally not an appropriate penalty for a civil contempt where there is no evidence of active public defiance (such as public declarations of contempt; obstructive picketing; and violence) and no repeated unrepentant acts of contempt;

"Where a fine is to be imposed, the level of the fine may appropriately be graduated to reflect the degree of seriousness of the failure to comply with the court order; (and)

"In ordering payment of a fine, the court may permit, by imposition of appropriate conditions, the contemnor to satisfy the fine in alternative ways, such as payment to a charity or the provision of free services to the persons harmed by the continuance of the contemptuous behaviour."

Here are some sample British Columbia jail sentences for contempt taken from John v Lee where, at ¶16, the relevant legal citations may be found:

  • Repeatedly engaged in the practice of law in violation of an injunction, custodial sentence of one month.
  • In the context of strike activities, because of the severity of the contempt, a lack of apology, and knowledge of the order, a one month suspended prison sentence.
  • Disobeying a court order forbidding him to perform legal services for a fee, incarcerated for 30 days.
  • Blatant disregard and breach of a Mareva injunction, attempt to conceal the contemptuous conduct and despite an apology that the Court found not to be genuine, imprisonment of 21 days.
  • Failure of the defendant to disclose the location of a motor vehicle and the failure of the defendant to purge his contempt: 45 days.

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