Contempt of Court (Offence)
|Contempt of Court|
|s. 708 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||fine or 90 days incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Contempt in Youth Criminal Justice
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 Record Suspensions and Pardons
- 10 See Also
Offences relating to contempt of court are found in Part XXII of the Criminal Code relating to "Procuring Attendance".
|Crown Election||Defence Election|
|s. 708 [contempt of court]||Summary Offence(s)||N/A|
Offences under s. 708 [contempt of court] are straight summary conviction offence. The trial must be held in provincial court.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 708 [contempt of court]||(summary offence)|
When charged under s. 708 [contempt of court], 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.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 708 [contempt of court]|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|708||"... contrary to section 708 of the Criminal Code."|
Proof of the Offence
Proving contempt of court under s. 708 should include:
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.
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.
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".
The mens rea requires deliberate or intentional conduct, or conduct which demonstrates indifference which is akin to recklessness.
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".
"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". It is not sufficient that there was merely a "misunderstanding".
- 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 Brooke JA (3:0)
R v Jones (1978), 42 CCC (2d) 192 (Ont. C.A.), 1978 CanLII 2466 (ON CA), per Martin JA
R v Glasner (1994), 19 O.R. (3d) 739 (Ont. CA), 1994 CanLII 3444 (ON CA), per Laskin JA, at para 24
R v Devost, 2010 ONCA 459 (CanLII), per Doherty JA (3:0), at para 35
Glasner, supra, at 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
Contempt in Youth Criminal Justice
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. 708 [contempt of court]|
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
- Maximum Penalties
|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
s. 718.3, 787
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.
Denunciation is one of the most influential factors in sentencing for contempt of court.
General deterrence is a primary objective when dealing with cases of contempt for refusing to testify. The sentence needs to send a message to the community about the breach of the public's duty to testify.
However, rehabilitation does not play a significant role in sentencing for contempt.
The use of this offence is essential for maintaining the rule of law as well as upholding the dignity and process of the courts.
R v Omar, 2017 ONSC 1833 (CanLII), per Molloy J, at para 44
R v DaSilva,  OJ No 3090 (H.C.)(*no CanLII links) , at para 6
R v Jacob, 2008 MBCA 7 (CanLII), per Scott CJ, 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),  1 SCR 901, per McLachlin J (4:3), at para 20
- 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.
- Common Law Offence
The common law offence of contempt of court, when prosecuted by summary conviction, is not limited by the statutory ceiling under s. 787.
Ancillary Sentencing Orders
- Offence-specific Orders
- General Sentencing Orders
|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
Record Suspensions and Pardons
Convictions under s. 708 [contempt of court] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".