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BRANDON HASTINGS
Failure to Obey Court Orders When civil contempt becomes criminal
T
here are various mechanisms available in the Rules of Court to compel compliance with court orders. But, what happens if these are ineffective? The Criminal Code delineates two types of contempt: (1) contempt “in the face of the court” (in facie) and (2) contempt not in the face of the court (ex facie). Contempt ex facie is our subject. In addition to being codified in s. 127 of the Criminal Code, criminal contempt is also, and more expansively, a criminal offence under common law — the power to punish for civil or criminal contempt is part of the court’s “core” inherent jurisdiction. That jurisdiction was enshrined as part of the Constitution Act (by reference to the law of England), and as such it cannot be limited by legislation.1 So, despite references to contempt in the Rules of Court and the Criminal Code, those sections are not exhaustive. Judges, it would seem, can get creative, though common penalties for both civil and criminal contempt include fines and imprisonment. As you might expect, the latter comes with a criminal record, and generally more severe penalties.2 Because of its heritage, prosecution for criminal contempt is begun by indictment (according to the law of England), but is apparently not subject to the procedure under the Criminal Code for indictable offences.3,4 Penalties for contempt may also be levied by an inferior
court or tribunal, but that’s a bit paradoxical, because it seems those common law powers must first be enabled through legislation.5 Whether breach of an order is civil or criminal depends on the “the nature and quality of the conduct involved,”6,7 because the drivers of criminal and civil contempt are distinct. Criminal contempt is aimed at avoiding or preventing “public injury,” whereas civil contempt aims primarily at obtaining compliance with the order (i.e., to “remedy the breach”). Generally before criminal contempt is considered, a finding of civil contempt will first be made. The test for contempt of a court order essentially amounts to proving an order was intentionally breached, beyond a reasonable doubt, and with direct evidence only. Proving intent has its challenges of course, and the court exercises its powers of contempt with restraint.8 As well, proving a lack of compliance sometimes requires proving a negative. In some cases, therefore, the onus may be reversed by court order, giving a significant opportunity for the alleged contemptor to prove compliance, or provide reasonable excuse, failing which their conduct may be assessed for contempt. Usually only then, if the civil contempt continues, may the court wish
to consider criminal contempt. The correct procedure appears to rest on a motion that (1) asks the court to “review the allegations … to ascertain whether those allegations, if true, would constitute criminal contempt,” (2) notifies the Attorney General, and (3) asks the court to invite the Attorney General to proceed with criminal contempt.9 One should consider notifying the local Crown,10 and I would urge significant consideration vis-a-vis motivations of such a motion as they relate to ethical duties. At some point, principles of denunciation and deterrence take precedence over gaining compliance with the original order. Criminal contempt is thus fundamental to the rule of law: “the gravamen of the offence is not actual or threatened injury … [it] is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.”11 Rule of law in the private realm cannot exist if citizens are allowed to endlessly flaunt court orders. Thus, this peculiarly commonlaw-based criminal offence serves as an important and fundamental organizing force of relationships between private citizens, and thus of our society. Footnotes for this article may be found on BarTalk online. 1-11
Brandon Hastings [bhastings.com] (he/him) is a civil and family litigator and mediator, who regularly conducts appeals, and practices with Cassady & Company on the traditional territory of the Qayqayt first nation. DECEMBER 2021 / BARTALK 13
