Incarceration (Civil Contempt)

Carr-Carey v. Carey, 2014 ONSC 6764 (CanLII)

[9] In R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, Lamer C.J.C., for a unanimous court, at para. 29, made it clear that a conditional sentence is a sentence of imprisonment. The sentence of imprisonment is served in the community, subject to conditions. It is intended to be punitive, but also addresses rehabilitative objectives.

[10] At para. 35, Lamer C.J.C. noted that Parliament intended a conditional sentence to be more punitive than a suspended sentence and probation. At para. 39, he stated that where an offender breaches a condition without reasonable excuse, there is a presumption that the offender will serve the remainder of his or her sentence in jail. This is unlike breach of a probation order, which requires a new charge. He stated that the constant threat of incarceration will help to ensure that the offender complies with the conditions.

Kopyto v. Clarfield, 1999 CanLII 7318 (ON CA)

The final ground of appeal calls into question the validity of the contempt order made by Roberts J. The appellant submits that Roberts J.'s order was a nullity because it prescribed a predetermined penalty of ten days' imprisonment in default of the appellant purging his contempt. In our view, there are two reasons why this argument must fail.

First, we are satisfied that Roberts J. was entitled to make the order he did under rule 60.11(5)(b), which provides as follows:

60.11(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

. . . . .

(b) be imprisoned if the person fails to comply with a term of the order;

The appellant does not suggest that the sanction of imprisonment for civil contempt is unlawful or that it offends against his s. 7 Charter rights. Rather, he submits that predetermined custodial sanctions, envisaged by rule 60.11(5) (b), violate his s. 7 Charter rights because he is deprived of the opportunity of having a hearing and making representations as to the suitability of the penalty.

In our view, this argument is totally misconceived. What the appellant fails to recognize is that the predetermined penalty is the product of a hearing in which the party at risk is afforded all the procedural protections which accord with the fundamental principles of justice: see McClure v. Blackstein (1987), 17 C.P.C. (2d) 242 (Ont. H.C.J.) at p. 248.

Once this is understood, it becomes apparent that the nature of Roberts J.'s order did not work to the appellant's disadvantage but it accrued to his benefit. Having found the appellant in contempt of Master Peppiat's order, Roberts J. could have ordered his immediate imprisonment. As it is, he chose not to, preferring instead to give the appellant one more chance to purge his contempt. There is nothing unconstitutional about Rule 60.1 l(5)(b) and Roberts J. was fully entitled to structure his order as he did.

The second reason for refusing to give effect to this argument arises from the nature of the motion brought before Coo J. The motion before Coo J. was not to enforce the penalty provision of Roberts J.'s order. Rather, it was a free standing motion under rule 60.11(1) to have the appellant found in contempt of Robert J.'s order. Unfortunately, neither the parties nor Coo J. seemed to appreciate this.

With respect to Coo J., in approaching the matter as he did, he misinterpreted his function. As his reasons indicate, Coo J. was under the mistaken belief that he was bound by the penalty provision of Roberts J.'s order. That was not the case. To the extent that he was satisfied of the appellant's contempt in respect of Roberts J.'s order, he was entitled to make any order available under rule 60.11(5) that he deemed appropriate.

Had Coo J. followed the correct approach, he might well have imposed an additional period of custody on the appellant over and above the ten days which Roberts J. had imposed upon him for his contempt of Master Peppiat's order. As it is, Coo J.'s mistake enured to the benefit of the appellant and he ended up receiving one punishment for two separate and distinct contempts.

Under ordinary circumstances, we would remit the matter to Coo J. for disposition. However, this relief was not requested by the respondent and, as we have indicated, Coo J. felt that the period of ten days' imprisonment was appropriate. It follows, in our view, that the appeal should simply be dismissed.

In the result, the appeal is dismissed with costs.