Contempt of Court (Offence): Difference between revisions

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(5) Section 708 (contempt) of the Criminal Code applies in respect of proceedings under this section in youth justice court against adults, with any modifications that the circumstances require.
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Revision as of 11:42, 23 June 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 94729)


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

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

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

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 708 [contempt of court]

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 [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] and to his detention, if any.

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; 2019, c. 25, s. 289(F).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 708(1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"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 contempt of court for failing to attend or remain "... being required by law to attend or remain in attendance for the purpose of giving evidence, did fail, without lawful excuse, to attend or remain in attendance, to wit: [particulars], contrary to section 708 of the Criminal Code."

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 the 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] OJ No 2611, per Doherty JA (3:0), at paras 34 to 36
  2. ↑ R v Glasner, 1994 CanLII 3444 (ON CA), 93 CCC (3d) 226, per Laskin JA (2:1)

Interpretation of the Offence

"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."[1] It is not sufficient that there was merely a "misunderstanding."[2]

Actus Reus

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]

Mens Rea

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

Clear Refusal

A judge may convict a person of contempt where there has been a clear refusal to testify.[5]

Failure to Appear

Counsel's failure to appear in court may amount to contempt of court.[6]

Failure to Release Exhibit

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))

Jurisdiction

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."[7]

Testifying Out of Canada

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)

  1. ↑ Elliott, ibid., at para 144
  2. ↑ Elliott, ibid., at para 144
  3. ↑ R v Glasner, 1994 CanLII 3444 (ON CA), (1994), 19 OR (3d) 739, per Laskin JA, at para 24
    R v Devost, 2010 ONCA 459 (CanLII), 256 CCC (3d) 374, per Doherty JA (3:0), at para 35
  4. ↑ Glasner, supra, at para 29
    Devost, supra, at para 36
  5. ↑ R v Aragon, 2018 ONCA 124 (CanLII), per curiam, at para 1
  6. ↑ R v Watkins, 2000 CanLII 16975 (ON CA), 149 CCC (3d) 279, per curiam (3:0), at para 11
    see R v Glasner, 1994 CanLII 3444 (ON CA), 19 OR (3d) 739, 93 CCC (3d) 226, per Laskin JA
    R v Anders, 1982 CanLII 3320 (ON CA), (1982), 136 DLR (3d) 316, 67 CCC (2d) 138, per Howland CJ, at p. 157 (Ont. C.A.)
    R v Danson, 1981 CanLII 3310, 57 CCC (2d) 519, per Martin JA
    R v Kopyto (No. 1), 1981 CanLII 1899 (ON CA), 32 OR (2d) 585, 60 CCC (2d) 85 (CA), per Brooke JA (3:0)
    R v Jones, 1978 CanLII 2466, 42 CCC (2d) 192, per Martin JA
  7. ↑ R v Elliott, 2003 CanLII 24447 (ON CA), 181 CCC (3d) 118, per curiam (3:0), at para 144

Form

708
[omitted (1) and (2)]

Form

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

– CCC (CanLII), (DOJ)

Note up: 708(3)

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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 10(1), (2) and (3)

Contempt in Youth Criminal Justice

Contempt against youth justice court

15 (1) Every youth justice court has the same power, jurisdiction and authority to deal with and impose punishment for contempt against the court as may be exercised by the superior court of criminal jurisdiction of the province in which the court is situated.

Jurisdiction of youth justice court

(2) A youth justice court has jurisdiction in respect of every contempt of court committed by a young person against the youth justice court whether or not committed in the face of the court, and every contempt of court committed by a young person against any other court otherwise than in the face of that court.

Concurrent jurisdiction of youth justice court

(3) A youth justice court has jurisdiction in respect of every contempt of court committed by a young person against any other court in the face of that court and every contempt of court committed by an adult against the youth justice court in the face of the youth justice court, but nothing in this subsection affects the power, jurisdiction or authority of any other court to deal with or impose punishment for contempt of court.

Youth sentence — contempt

(4) When a youth justice court or any other court finds a young person guilty of contempt of court, it may impose as a youth sentence any one of the sanctions set out in subsection 42(2) (youth sentences), or any number of them that are not inconsistent with each other, but no other sentence.

Section 708 of Criminal Code applies in respect of adults

(5) Section 708 (contempt) of the Criminal Code applies in respect of proceedings under this section in youth justice court against adults, with any modifications that the circumstances require.

– YCJA (CanLII), (DOJ)

Note up: 15(1), (2), (3), (4), and (5)

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1) [SPIO]		 Victim Queried
for Interest in Agreement
s. 606(4.2) [5+ years]		 Victim Notice
for Restitution
s. 737.1		 Victim Notice
of Impact Statement
s. 722(2)
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

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 [contempt of court] 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]

  1. ↑ R v Omar, 2017 ONSC 1833 (CanLII), per Molloy J, at para 44
    R v DaSilva, [1986] OJ No 3090 (H.C.)(*no CanLII links) , at para 6
  2. ↑ R v Jacob, 2008 MBCA 7 (CanLII), 231 CCC (3d) 553, per Scott CJ, 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 SCR 901, per McLachlin J (4:3), 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]

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.[2]

  1. ↑ R v Omar, 2017 ONSC 1833 (CanLII), per Molloy J, at para 54
  2. ↑ R v Krawczyk, 2010 BCCA 542 (CanLII), 264 CCC (3d) 511, per Tysoe JA

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

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".

See Also

References
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