Contempt of Court (s. 708) Charges in Canada: Offences, Defences, Punishments

By Last Updated: December 7, 2022

What is Contempt of Court?

Contempt of court charges in canadaContempt of court is covered under s. 708 of the Criminal Code.

Contempt of court encompasses when a person fails to attend court or to remain in attendance while in court. To be charged with contempt of court, a person must be required by law to attend court or to remain in attendance to give evidence. It is up to the discretion of the courts whether they choose to charge a person with contempt.

Contempt of court is a straight summary offence and a person charged is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days. A court can choose to impose both a fine and imprisonment on a person charged with contempt of court.

Examples 

Some examples of contempt of court may include the following:

  • Failure to appear in court;
  • Not complying with a court order;
  • Refusing to testify in court; and
  • Conduct that obstructs or interferes with the process of the courts.

Defences

The defences available to a charge of contempt of court are entirely dependent on the facts of your case.

However, some defences to a charge of contempt of court include:

  • The court order was not sufficiently clear;
  • The accused’s conduct was not in contempt of court; and
  • The accused’s conduct was out of necessity or duress.

Punishment

Contempt of court is a straight summary criminal offence, which entails a possible punishment as follows:

  • A fine of no more than one hundred dollars;
  • Imprisonment for a term, not exceeding 90 days;
  • Both a fine and imprisonment; and
  • Costs of service.

Contempt of court carries a potential punishment of a fine of no more than one hundred dollars, imprisonment not exceeding 90 days, or both a fine and imprisonment. It may be ordered that a person charged with contempt of court be required to pay the costs associated with the service of any process issued to the accused.

Contempt of court may also entail consequences for current and future employment opportunities and immigration status.

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Overview of the Offence

According to s. 708 of the Criminal Code:

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 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.

The Guilty Act (Actus Reus)

The actus reus for contempt of court is established by proof, beyond a reasonable doubt, of the following:

  • The accused is required by law to attend court, following a court order, or give evidence; and
  • The accused’s conduct interfered with or obstructed the administration of justice.

The case of R v Elliot, 2003 CanLII 24447 (ONCA) guided the Crown on what they must prove to secure a conviction for contempt of court. The Crown must be able to demonstrate the accused’s conduct was, “calculated to obstruct or interfere with the due course of justice or the lawful process of the courts. It is conduct that seriously interferes with, or obstructs, the administration of justice” (at para 144). This conduct can include publicly disobeying a court order (United Nurses of Alberta v Alberta (Attorney General), 1992 CanLII 99 (SCC))

R v Devost, 2010 ONCA 459 (CanLII) also stated that the identity of the accused as well as the date and time of their prohibited conduct must be confirmed (at para 34).

The Guilty Mind (Mens Rea)

The mens rea of contempt of court includes proving, beyond a reasonable doubt, that:

  • The accused’s conduct was deliberate or intentional; and
  • The accused’s conduct was calculated to obstruct or interfere with the lawful process of the courts.

R v Devost, 2010 ONCA 459 (CanLII) quoted Justice Laskin in Glasner stating, “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” (para 35).  This means that the Crown must prove that the accused’s conduct was done deliberately or intentionally to obstruct or interfere with the process of the court.

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Contempt of Court Defences

How to Beat a Contempt of Court Charge 

The availability and strength of any defence depend entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a contempt of court charge:

Factual innocence

A strong defence to contempt of court is to maintain that you are factually innocent. If you can show that the facts and the evidence alleged by the Crown do not support your conduct as being in contempt of court, or other basic elements of the offence are not met, then the Crown will not be able to secure a conviction for contempt of court.

The accused’s act was not intentional or deliberate

If the alleged conduct of the accused that was in contempt of court was not intentional or deliberate, then the Crown will not be able to prove the mens rea for contempt of court beyond a reasonable doubt, and you cannot be convicted of criminal contempt.

The accused’s conduct did not seriously interfere with or obstruct the court

You may not be found guilty of contempt of court if your prohibited conduct did not seriously interfere with or obstruct the court. If your conduct did not interfere with or obstruct the administration of justice, then the Crown will not be able to prove the actus reus for criminal contempt of court.

The court order was not sufficiently clear

If an accused is charged with contempt of court for failing to follow a court order, it may be that the order was not sufficiently clear. If the order does not directly describe the prohibited conduct, then an accused may be found to lack the actus reus for contempt of court.

The accused’s conduct was done out of duress or necessity

If the accused’s actions were done out of necessity or because they were under duress, it may be that the Crown will not be able to prove the actus reus for contempt of court.

Identity 

Depending on the circumstances of your case, a possible defence to contempt of court may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator who was in contempt of court. In this case, for this defence to be raised successfully, you will have to prove that you were not the person whose conduct was in contempt of court.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Contempt of Court Punishments

The Criminal Code provides for a possible maximum term of imprisonment of ninety days for those convicted of contempt of court.

As discussed earlier in this article, a person may also be subject to a fine of no more than one hundred dollars, or to both a fine and imprisonment. Contempt of Court is a straight summary offence which means it carries a shorter prison sentence and smaller fine than indictable offences. A summary offence is also always tried in a provincial court.

Persons found guilty of contempt of court are eligible for sentencing entailing a discharge (s. 730 of the Criminal Code), suspended sentence (s.731(1)(a) of the Criminal Code), or a conditional sentence order (s. 742.1 of the Criminal Code).

Specifically, in contempt of court cases, courts have also paid attention to the following non-exhaustive factors for sentencing:

  1. Repeated breaches of an order;
  2. The seriousness of a breach of an order;
  3. The degree of remorse or apology;
  4. Accountability of the offender; and
  5. Deterrence and denunciation of the prohibited conduct.

Frequently Asked Questions

Is contempt of court a criminal offence in Canada?

Yes, contempt of court is a criminal offence in Canada. It is captured by section 708(1) of the Criminal Code. Criminal contempt of court requires the Crown to prove that the accused defied or disobeyed the court and that the accused’s conduct interfered with or obstructed the administration of justice.

Can you go to jail for contempt of court?

Yes, it is possible to go to jail for a contempt of court charge. Under section 708(2), a person charged with contempt of court is liable to imprisonment for a term not exceeding 90 days. Whether one is incarcerated for contempt of court depends entirely on the facts of their case.

What is an example of contempt of court?

An example of criminal contempt of court constitutes any behaviour or action that results in an obstruction to the administration of justice. Examples of this type of action or behaviour include attempting to influence a judge, accusing a court of bias, or trying to bribe a witness or jury member. You may also be charged with contempt of court for failing to comply with a court order.

Published Decisions

MacMillan Bloedel Ltd v Simpson, [1995] 2 SCR 725 (CanLII)

The accused was charged with contempt of court for disobeying an injunction issued by a Superior Court prohibiting protest activities. The accused was a young offender and was sentenced to 45 days imprisonment and a fine.

You can read the full decision here.

R v Canadian Broadcasting Corp., 2018 SCC 5 (CanLII)

The accused was charged with first-degree murder of a person under the age of 18. The Crown issued a publication ban prohibiting the publication, broadcast, or transmission of any information that could identify the victim. The CBC happened to post information revealing the identity of the victim on its website and refused to remove the information. The Crown an order citing CBC in criminal contempt of the publication ban and an injunction to remove the victim’s identifying information.

The SCC held that the Crown failed to establish a case based on the law and evidence presented, that had a strong likelihood that it would be successful in proving CBC’s guilt of criminal contempt of court.

You can read the full decision here.

United Nurses of Alberta v Alberta (Attorney General), 1992 CanLII 99 (SCC)

The United Nurses of Alberta went on strike in January 1998. This was contrary to directives forbidding the strike made under the Alberta Labour Relations Act and filed with the Court of Queen’s Bench. The union was found to be in criminal contempt of the orders and fined $250,000 and $150,000 on successive motions.

The SCC held that the United Nurses of Alberta may be held liable for a criminal offence including criminal contempt.

You can read the full decision here.

 

About The Author

Michael Oykhman

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Michael Oykhman is a senior lawyer and founder of Oykhman Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

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