Imprisonment for contempt rare

Today's Superior Court decision in CIT Financial Ltd. v. Western Waste Recyclers Inc., 2008 CanLII 29104 (ON S.C.) makes it clear that imprisonment for contempt will be rare, if not unknown, for a breach of a civil court order where no public defiance of the court or repeated unrepentant acts of contempt occur.

The Court writes:

[6] The purpose of sentencing in contempt cases is to repair the depreciation of the authority of the court.... According to the Canadian Judicial Council, punishment for contempt in Canada has generally been quite moderate reflecting the courts' usual view that a conviction for contempt and a modest fine is usually sufficient to assert the courts' authority, to protect their dignity and to ensure compliance.... The CJC suggests that imprisonment should be imposed only in cases of serious disobedience, violence or willful interference with the course of justice....

[7] The CJC Contempt Guidelines, published in 2001, adopt the sentencing principles that were set out in Health Care Corp of St. John's.... Chief Justice Green of the Newfoundland Supreme Court listed ten principles that have since been cited by other Canadian courts as well.... Two of these sentencing principles have particular relevance in this case:

* It is the defiance of the court order and not the illegality of any actions which led to the granting of the court order in the first place, which must be the focus of the contempt penalty.

* Imprisonment is normally not an appropriate penalty for a civil contempt where there is no evidence of active public defianceand no repeated unrepentant acts of contempt.

[8] The submission by CIT that this case justifies a long-term custodial sentence is misguided in the extreme. In cases post-dating the CJC Guidelines, where jail terms of six to twelve months were imposed, there was either evidence of public defiance (as for example, in the Cornwall Inquiry...) or there were repeated unrepentant acts of contempt ... In Chiang, for example, the defendants had breached no less than six separate court orders. In breach of these orders, they refused to produce documents, transferred large sums of money to third parties, removed the contents of safety deposit boxes, swore false affidavits and refused to divulge the whereabouts of more than $8 million that they had wrongfully appropriated.