Contempt of Court (Offence)

Contempt of Court
	s. 708 of the Crim. Code
Election / Plea
Crown Election	Summary; summary proceedings must initiate within 12 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.
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;

< Criminal Law/Sentencing
< Offences

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 appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Publication Bans
For all criminal or regulatory prosecutions, 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.

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Proof of the Offence

Proving contempt of court under s. 708 should include:^[1] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) 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] the culprit intended or was reckless in committing the conduct

↑ R v Devost, 2010 ONCA 459 (CanLII), [2010] O.J. No. 2611, per Doherty JA (3:0) at paras 34 to 36
↑ R v Glasner, 1994 CanLII 3444 (ONCA), per JA

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 judge may convict a person of contempt where there has been a clear refusal to testify.^[1]

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.^[2]

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".^[3]

The mens rea requires deliberate or intentional conduct, or conduct which demonstrates indifference which is akin to recklessness.^[4]

The Superior Court's power to cite a person in contempt of court is "a very important power but it is to be used with restraint".^[5]

"Contempt" requires a "conduct that is calculated to obstruct or interfere with the due course of justice of the lawful process of the courts." It consists of conduct "that seriously interferes with, or obstructs, the administration of justice".^[6] It is not sufficient that there was merely a "misunderstanding".^[7]

↑ R v Aragon, 2018 ONCA 124 (CanLII), per curiam at para 1
↑ R v Watkins, 2000 CanLII 16975 (ONCA), per curiam (3:0) at para 11
see R v Glasner (1994), 1994 CanLII 3444 (ON CA), 19 O.R. (3d) 739, 93 CCC (3d) 226 (C.A.), per Laskin JA
R v Anders (1982), 136 DLR (3d) 316, 67 CCC (2d) 138, 1982 CanLII 3320 (ON CA), per Howland CJ at p. 157 (Ont. C.A.)
R v Danson (1981), 57 CCC (2d) 519 (Ont. C.A.), 1981 CanLII 3310 (ON CA), per Martin JA
R v Kopyto (No. 1) (1981), 1981 CanLII 1899 (ON CA), 32 O.R. (2d) 585, 60 CCC (2d) 85 (C.A.), per JA
R v Jones (1978), 42 CCC (2d) 192 (Ont. C.A.), 1978 CanLII 2466 (ON CA), per Martin JA, per Martin JA
↑ R v Glasner (1994), 19 O.R. (3d) 739 (Ont. CA), 1994 CanLII 3444 (ON CA), per JA, per Laskin J at para 24
R v Devost, 2010 ONCA 459 (CanLII), per Doherty JA (3:0) at para 35
↑ Glasner, supra at para para 29
Devost, supra at para 36
↑ R v Elliott, 2003 CanLII 24447 (ON CA), per curiam (3:0), at para 144
↑ Elliott, ibid. at para 144
↑ Elliott, ibid. at para 144

Form

708...
Form
(3) A conviction under this section may be in Form 38 and a warrant of committal in respect of a conviction under this section may be in Form 25.
R.S., 1985, c. C-46, s. 708; R.S., 1985, c. 27 (1st Supp.), s. 203.

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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.

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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

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]

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

↑ R v Omar, 2017 ONSC 1833 (CanLII), per J 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	A discretionary order prohibiting the offender from communicating with named persons while he is 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 (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

None