Contempt of Court (Offence)

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Contempt of Court
s. 708 of the Crim. Code
Election / Plea
Crown Election Summary
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum fine or 90 days incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to contempt of court are found in Part XXII of the Criminal Code relating to "Procuring Attendance".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 708 [contempt of court] Summary Offence(s) N/A No

Offences under s. 708 are straight summary conviction offence. The trial must be held in provincial court.

Release
When charged under s. 708, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Contempt
708. (1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.
Punishment
(2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or to both, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any.
...
R.S., 1985, c. C-46, s. 708; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Proof of the Offence

Proving contempt of court under s. 708 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused's conduct seriously interferes with or obstructs the administration of justice or causes a serious risk of interference or obstruction with the administration of justice.[2]
  5. the culprit intended or was reckless in committing the conduct
  1. R v Devost, 2010 ONCA 459 (CanLII), [2010] O.J. No. 2611 at paras 34 to 36
  2. R v Glasner, 1994 CanLII 3444 (ONCA)

Interpretation of the Offence

A person who fails to comply with an order under s. 605 to release an exhibit for testing is also guilty of contempt.(see s. 605(2))

A witness who gives evidence from outside of Canada by way of video will be deemed to having given it in Canada for the purpose of a charge of contempt. (s. 714.6)

Counsel's failure to appear in court may amount to contempt of court.[1]

The actus reus of the offence is "conduct which seriously interferes with or obstructs the administration of justice or which causes a serious risk of interference or obstructions".[2]

The mens rea requires deliberate or intentional conduct, or conduct which demonstrates indifference which is akin to recklessness.[3]

  1. R v Watkins, 2000 CanLII 16975 (ONCA) at para 11
    see R v Glasner (1994), 1994 CanLII 3444 (ON CA), 19 O.R. (3d) 739, 93 CCC (3d) 226 (C.A.)
    R v Anders (1982), 136 D.L.R. (3d) 316, 67 CCC (2d) 138 at p. 157 (Ont. C.A.)(*no link)
    R v Danson (1981), 57 CCC (2d) 519 (Ont. C.A.)(*no link)
    R v Kopyto (No. 1) (1981), 1981 CanLII 1899 (ON CA), 32 O.R. (2d) 585, 60 CCC (2d) 85 (C.A.)
    R v Jones (1978), 42 CCC (2d) 192 (Ont. C.A.)(*no link)
  2. R v Glasner (1994), 19 ).R. (3d) 739 (Ont. CA) per LaskIn J at para 24
    R v Devost, 2010 ONCA 459 (CanLII) at para 35
  3. Glasner, supra at para para 29
    Devost, supra at para 36

Appellate Review

Appeal
10 (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.

Idem
(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.

Part XXI applies
(3) An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XXI apply, with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 10; R.S., 1985, c. 27 (1st Supp.), s. 203.


Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 708 [contempt of court] N/A $100 fine and/or 90 days jail

Offences under s. 708 are straight summary conviction offences. The maximum penalty is $100 fine and/or 90 days jail.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 708 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Denunciation is one of the most influential factors in sentencing for contempt of court.[1]

General deterrence is a primary objective when dealing with cases of contempt for refusing to testify.[2] The sentence needs to send a message to the community about the breach of the public's duty to testify.[3]

However, rehabilitation does not play a significant role in sentencing for contempt.[4]

The use of this offence is essential for maintaining the rule of law as well as upholding the dignity and process of the courts.[5]

  1. R v Omar, 2017 ONSC 1833 (CanLII) at para 44
    DaSilva, [1986] O.J. No. 3090 (H.C.), at para. 6
  2. R v Jacob, 2008 MBCA 7 (CanLII), at paras 25 to 26
  3. DaSliva, supra at para 6
  4. Omar, supra at para 50
  5. United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at para 20

Ranges

see also: Contempt of Court (Sentencing Cases)

In Ontario, the top end of the range of sentence is 3 years for a first offender who commits the offence on the most serious cases such as murder.[1]

  1. R v Omar, 2017 ONSC 1833 (CanLII) at para 54

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

  • None

General Sentencing Orders

Order Conviction Description
Non-communication order under s. 743.21 any while offender in custody.
Restitution Orders any a discretionary Order on application under s. 738, for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay if before.

General Forfeiture Orders

  • None

See Also

References