Contempt of court for misstating facts

R. v. Devost, 2010 ONCA 459 deals with the concept of contempt in the unusual circumstances of a lawyer unintentionally misstating facts to a court.  The Court of Appeal made it very clear that such contempt can only be found if the accused acted intentionally to mislead – something not the case here.  The Court writes:

[34]          The crime of contempt in the face of the court is unique in many ways.  It is, however,  a true crime requiring proof of prohibited conduct (actus reus) and proof that at the time the accused engaged in the prohibited conduct, he or she had the requisite culpable state of mind (mens rea).  Both elements must be proved beyond a reasonable doubt. 

[35]          The actus reus of contempt in the face of the court consists of conduct that seriously interferes with or obstructs the administration of justice or conduct which causes a serious risk of interference or obstruction with the administration of justice:  R. v. Glasner (1994), 93 C.C.C. (3d) 226 (Ont. C.A.) at pp. 242-43.  A misrepresentation that leads a judge to impose a different sentence than the one intended can constitute the actus reus of a criminal contempt.  As I read the submissions of counsel for the appellant at the contempt proceedings, he virtually admitted that the appellant's misstatement concerning credit for pre-sentence custody did satisfy the actus reus requirements of criminal contempt. 

[36]          The crime of contempt also requires proof of mens rea.  In Glasner, Laskin J.A. described the necessary mens rea in this way:

In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or conduct which demonstrates indifference, which I take to be akin to recklessness.  Nothing short of that will do. 

[37]          On the facts of this case, the appellant could only be convicted of contempt if, at the time she made the submission concerning credit for pre-sentence custody, she intended to mislead the court so that the judge would impose a different sentence than the one intended, or she knew there was a risk that her misleading statement would lead to that result and she was indifferent to that risk in making the submission. 

[38]          The judge referred to the extract from Glasner quoted above in the course of summarizing the relevant case law.  Nowhere in the reasons, however, does the judge address the requisite mens rea as distinct from the required actus reus.  As I read the reasons of the judge, he took the acknowledgement by the appellant that she had made a submission that had misled the judge into imposing a different sentence than the intended sentence as an admission of contempt.  The judge then looked to the contents of the letter for something that would justify a decision to not make a finding of contempt despite the admission that the conduct was contemptuous. 

[39]          The judge never considered whether, on the totality of the evidence, the necessary mens rea had been established beyond a reasonable doubt.  Clearly, the letter was not an admission of the requisite mens rea.  To the contrary, it was an express and emphatic denial of the existence of the mens rea.  In my view, the judge convicted the appellant because she made a misstatement that misled him into imposing the wrong sentence and because she failed to offer an explanation or apology that was "sufficient to negative" that conduct.  This analysis fails to address her state of mind at the relevant time.  Furthermore, it inappropriately places a burden on the appellant to negate a finding of contempt once the actus reus is established.  Both errors are sufficiently serious to require the quashing of the conviction.