The Honourable G. Normand Glaude, Commissioner of the Cornwall Public Inquiry v. Dunlop [Indexed as: Cornwall Public Inquiry (Commissioner of) v. Dunlop]
90 O.R. (3d) 524
Ontario Superior Court of Justice,
Divisional Court,
Ferrier and Swinton JJ.
March 5, 2008
Contempt of court -- Disobedience of court order -- Accused refusing to testify before public inquiry into institutional response to allegations of widespread child sexual abuse -- Accused playing central role in subject-matter of inquiry as he was initial "whistleblower" who exposed alleged cover-up of child sexual abuse allegations -- Accused found in civil contempt of court and ordered to appear before Commission -- Accused refusing to do so but speaking to media and stating that he would continue to refuse to testify because he had lost faith in system -- Accused found guilty of criminal contempt of court -- Sentence for criminal contempt to be imposed following completion of sentence for civil contempt. [page525]
Contempt of court -- Refusal to testify -- Accused refusing to testify before public inquiry into institutional response to allegations of widespread child sexual abuse -- Accused playing central role in subject-matter of inquiry as he was initial "whistleblower" who exposed alleged cover-up of child sexual abuse allegations -- Accused speaking to media and stating that he would continue to refuse to testify because he had lost faith in justice system -- Accused sentenced to six months' imprisonment for civil contempt.
D was the initial "whistleblower" who exposed an alleged cover-up of allegations of child sexual abuse in the Cornwall area. He refused to testify before a public inquiry into the institutional response of the justice system and other public institutions to those allegations. He was found guilty of civil contempt and was ordered to appear before the Commission to give evidence. He refused to do so, but spoke to the media, stating that he had lost faith in the justice system. A warrant was issued for his arrest to have him brought before the court for sentencing for the civil contempt and to determine whether he was guilty of criminal contempt of court for failing to comply with the order that he appear before the Commission to give evidence. He arranged to have a large crowd of supporters in front of his residence when he was arrested.
Held, D was sentenced to six months' imprisonment for civil contempt and was found guilty of criminal contempt.
D had deliberately refused to comply with the court's order. He had done so flagrantly and publicly, and in a manner that had invited and attracted much media attention. He was guilty of criminal contempt of court.
That D had refused to testify before a commission of inquiry rather than a court did not reduce the seriousness of his disobedience. Public inquiries are an important part of the Canadian legal and political fabric. D's blatant disregard for the work of the Commission and refusal to participate diminished public confidence in the work of the Commission and ought to be punished accordingly. For the civil contempt, D was sentenced to six months' imprisonment. If, prior to the end of that period, he purged his contempt by testifying before the Commission and answering all proper questions, then he could apply for an order for immediate release from custody. Upon completion of his sentence, he was to be brought before the court to be sentenced for criminal contempt of court.
SENTENCING for civil contempt of court; RULING on whether accused was guilty of criminal contempt of court.
Cases referred to Attorney General v. James, [1962] 1 All E.R. 255, [1962] 2 Q.B. 637 (Q.B.); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101, 130 D.L.R. (4th) 385, 191 N.R. 260, [1996] 2 W.W.R. 1, J.E. 96-63, 68 B.C.A.C. 161, 14 B.C.L.R. (3d) 122, 103 C.C.C. (3d) 225, 44 C.R. (4th) 277, 33 C.R.R. (2d) 123, 59 A.C.W.S. (3d) 199, 29 W.C.B. (2d) 160; Niagara (Regional Municipality) Police Services Board v. Curran (2002), 57 O.R. (3d) 631, [2002] O.J. No. 179, [2002] O.T.C. 48, 16 C.P.C. (5th) 139, 111 A.C.W.S. (3d) 246, 52 W.C.B. (2d) 335 (S.C.J.); Ontario (Royal Commission on Certain Sectors of the Building Industry) (Re) (1973), 1 O.R. (2d) 699, [1973] O.J. No. 2209 (Div. Ct.); Ontario (Royal Commission into the Niagara Regional Police Force - Colter Commission) v. DeMarco, [1990] O.J. No. 161, 38 O.A.C. 140, 19 A.C.W.S. (3d) 616, 9 W.C.B. (2d) 313 (Div. Ct.); Pereira v. Canada (Minister of Manpower and Immigration), [1977] O.J. No. 2547, 33 C.C.C. (2d) 435, 1 W.C.B. 122 (H.C.J.); Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, [1995] S.C.J. No. 36, 124 D.L.R. (4th) 129, 180 N.R. 1, J.E. 95-945, 141 N.S.R. (2d) 1, 31 Admin. L.R. (2d) 261, 98 C.C.C. (3d) 20, 39 C.R. (4th) 141, 28 C.R.R. (2d) 1, 54 A.C.W.S. (3d) 1115, 27 W.C.B. (2d) 9; [page526] Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, [1953] S.C.J. No. 25, [1953] 2 D.L.R. 785, 105 C.C.C. 311, 53 CLLC 145, 17 C.R. 176; R. v. Lamer (1973), 17 C.C.C. (2d) 411 (Que. C.A.); R. v. Rai, [1995] O.J. No. 4391 (Gen. Div.); Surgeoner v. Surgeoner, [1992] O.J. No. 299, 6 C.P.C. (3d) 318, 31 A.C.W.S. (3d) 1247 (Gen. Div.); United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, 89 D.L.R. (4th) 609, 135 N.R. 321, [1992] 3 W.W.R. 481, J.E. 92-658, 1 Alta. L.R. (3d) 129, 125 A.R. 241, 71 C.C.C. (3d) 225, 92 C.L.L.C. Â12118, 13 C.R. (4th) 1, 9 C.R.R. (2d) 29, 32 A.C.W.S. (3d) 910, 16 W.C.B. (2d) 18 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 123(3) Police Services Act, R.S.O. 1990, c. P.15 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 60.11(8)
Brian Gover and Patricia M. Latimer, for Commissioner Glaude. David M. Humphrey, for Ministry of the Attorney General. Perry Dunlop, self-represented.
[1] BY THE COURT: -- This proceeding was first initiated by the Honourable G. Normand Glaude, Commissioner of the Cornwall Public Inquiry, by way of an application for a stated case in reference to the refusal of Perry Dunlop to testify before the Commission.
[2] The panel of this court hearing the stated case in the proceedings referable thereto was comprised of Hoilett J., Ferrier J. and Swinton J. Hoilett J. retired on February 5, 2008, while the proceeding had not yet been completed.
[3] Pursuant to s. 123(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, where a judge has commenced a hearing together with other judges and is for any reason unable to participate in the giving of the decision of the court, the remaining judges may complete the hearing and give the decision of the court, unless the remaining judges are equally divided.
[4] We are not divided, and we are unanimous in this decision.
[5] The accused Perry Dunlop has refused to testify before the Cornwall Public Inquiry. At the hearing held February 20, 2008, this court was asked to sentence him for civil contempt arising from his failure to testify at the Cornwall Public Inquiry, and to make a finding of criminal contempt because of his failure to obey a court order to testify. [page527] Background
[6] The mandate of the Cornwall Public Inquiry (the "Commission") is set out in ss. 2 and 3 of the Order in Council establishing the Commission:
- The Commission shall inquire into and report on the institutional response of the justice system and other public institutions, including the interaction of that response with other public and community sectors, in relation to: a) allegations of historical abuse of young people in the Cornwall area, including the policies and practices then in place to respond to such allegations, and b) the creation and development of policies and practices that were designed to improve the response to allegations of abuse
in order to make recommendations directed to the further improvement of the response in similar circumstances.
- The Commission shall inquire into and report on processes, services or programs that would encourage community healing and reconciliation in Cornwall.
[7] Mr. Dunlop played a central role in the subject-matter of the Commission in that he:
-- was the initial "whistleblower" who exposed an alleged cover-up of child sexual abuse allegations;
-- interviewed alleged victims and investigated many of their claims of alleged child sexual abuse;
-- obtained information about an alleged clan of pedophiles in the Cornwall area;
-- collected information on a conspiracy to obstruct justice in late-summer 1993 by prominent members of the Cornwall community with regard to the original investigation by the Cornwall Police Service ("CPS");
-- delivered his findings to the Chief of the London Police Service, the Ontario Civilian Commission on Policing, the Attorney General and eventually to the Ontario Provincial Police ("OPP"); and
-- prepared a Will State in anticipation of prosecutions arising out of Project Truth, the OPP investigation into allegations of child sexual abuse.
[8] This court has determined, in its reasons for judgment released December 6, 2007, that Mr. Dunlop has knowledge and [page528] information that goes to the very heart of the mandate of the Commission and the questions to be asked of him are clearly relevant. The areas which Commission Counsel intends to canvas with Mr. Dunlop include, inter alia, the following:
(a) Mr. Dunlop's employment background with the CPS;
(b) Mr. Dunlop's involvement with allegations made by David Silmser against Father Charles MacDonald and Ken Seguin;
(c) the investigation of Mr. Dunlop pursuant to the Police Services Act, R.S.O. 1990, c. P.15;
(d) Mr. Dunlop's investigation of allegations of sexual abuse of young people; and
(e) Mr. Dunlop's contacts with the CPS, the OPP and the Crown during Project Truth and the criminal prosecutions;
[9] Mr. Dunlop refused to testify before the Commission on October 9, 2007, and was found guilty of civil contempt in this court's reasons delivered on December 6, 2007.
[10] The record of the proceedings before the Commission shows that Mr. Dunlop was given ample opportunity to obtain legal advice and to consider and reconsider his position. As well he was given the opportunity to testify on several occasions prior to October 9, 2007, but consistently refused to do so.
[11] He has refused to answer questions because he has said that he has no faith in the Ontario justice system or the mandate of the inquiry; he is a "scapegoat"; the process is a cover-up; he was forced to appear against his will; and he could add nothing to his "will state".
[12] As held by this court on December 6, 2007, Mr. Dunlop has provided no lawful excuse for his failure to testify. By order of this court on that date, he was ordered to appear before the Commission on January 14, 2008 to give evidence, and to appear before this court for sentencing on a date to be fixed. Criminal Contempt
[13] Mr. Dunlop failed to appear before the Commission on January 14, 2008, despite offers of assistance from Commission counsel in making travel arrangements for Mr. Dunlop, who lives in British Columbia, and despite offers from said counsel to meet with him in preparation for his testimony.
[14] Mr. Dunlop's failure to comply with this court's order that he appear to give testimony on January 14, 2008 forms the basis for the [page529] position advanced by Commission counsel and the Attorney General, that Mr. Dunlop be found guilty of criminal contempt of court.
[15] Following the order of December 6, 2007, Mr. Dunlop spoke to the media, repeating his reasons for refusing to testify and discussing some of the very things about which he had been summoned to testify.
[16] Mr. Dunlop's disobedience of the order was open, continuous and flagrant. Not only did Mr. Dunlop fail to appear as ordered, he publicized his intention to disobey the order and attacked the integrity of the Commission, bringing the administration of justice into disrepute. On January 10, 2008, a Canadian Press article"Dunlop refuses to testify: He's lost faith in justice system", reported Mr. Dunlop's position as follows:
A former police officer credited with bringing to light explosive allegations of widespread child sexual abuse in eastern Ontario says he is convinced the dark stories that have divided the community are true -- but he says he won't testify before a public inquiry because he says the justice system hasn't listened to him for 15 years.
Perry Dunlop, a decorated former officer from Cornwall, Ont., has been scheduled to testify but he told The Canadian Press in an exclusive interview he won't be there because he's lost faith in the justice system. ...
'I don't have much of a choice, really, so I'll face whatever ... I have a lot of reasons, but I'm not going to testify,' he said.
'I'm saying our judicial system is broken and they haven't listened to me for 15 years, and I have no faith. Absolutely no faith, none.'
[17] In an interview with CBC Radio One, on January 11, 2008, Mr. Dunlop made the following statements about why he would not testify as ordered:
. . . Perry Dunlop: The reason I'm not testifying is that I believe that the commissioner's in a conflict of interest in that he's a current sitting judge and he works of [sic] the AG's office and the A.G. is under question in this . . . on this file and I feel that he's in conflict there and he's also . . . He won't admit to being in conflict but I think considering the church is really heavily involved in this inquiry, it should be obvious that we should have had somebody that wasn't perhaps so tied in with the church or on that side of it.
And I don't think the mandate is right. It's just . . . It's not set up and I've sort of been on the outside since day one, if you look at my involvement, you know, 15 years ago, they came down hard on me and it seems that that's been their attitude and it continues to this day. It's not to look at the pedophile and what they did. It's to hammer the policeman that came forward and I just have no faith. I feel it is very toxic. . . .
And, you know, you walk away from the system and just with your head down saying what's it all about? So I have no faith is a big one and we've been through so much as a family and just to put my girls through this and again, and also the fact that the commission lied to get us there. They said you won't be forced to testify and that. [page530]
It's just really toxic for me. . . .
Adrian Harewood: But do you not think that your input, because you've expressed a lack of faith in Commissioner Normand Glaude, do you not think that your input could be helpful to this inquiry, that perhaps you could push them in another direction?
Perry Dunlop: Yes, well, I don't think this is. . .I don't think this is the vehicle. I've really lost faith as I watch how they rip apart the victims and people coming forward and they're not asking the right questions. They seem to be skirting the issue of the truth and of the bad guys and it's sort of set up in a way sequentially that they should have brought the institutions at the first and said what did you do? And then sort of blended it backwards.
And I will tell my story and Helen will tell her story and we'll perhaps write a book. ...
I just feel that this is not the venue, that I just have no faith in this whole...this whole inquiry. And I am sad that I can't tell my story, but rest assured we will tell our story and we will tell Canadians. . . .
[18] The Commissioner and the Attorney General take the position that Mr. Dunlop knew, or at least was reckless as to the fact that these comments would deprecate the authority of both this court and the Commission and bring the administration of justice into disrepute.
[19] Upon Mr. Dunlop's failure to appear on January 14, 2008, this court issued a warrant for the arrest of Mr. Dunlop to have him brought before the court to deal with the question of penalty for his contempt in refusing to testify on October 9, 2007 before the Commission, and to determine the issue of criminal contempt for failing to comply with the order of this court, dated December 6, 2007, that he appear on January 14, 2008 before the Commission to give evidence.
[20] This court issued the warrant for Mr. Dunlop's arrest on January 28, 2008, and made an order requesting the Attorney General's assistance in making submissions to the court.
[21] On February 20, 2008, the court convened again. Mr. Dunlop was present in police custody.
[22] Following submissions on the two questions, i.e., the issue of criminal contempt and the penalty for the civil contempt in failing to testify on October 9, 2007, the court reserved judgment to this date. Civil and Criminal Contempt
[23] The distinction between civil and criminal contempt was stated by Kellock J. in Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, [1953] S.C.J. No. 25, at p. 522 S.C.R.:
And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of [page531] justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempts in disregarding orders or judgments of a Civil Court, or in not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is committal -- but where the contempt involves a private injury only it is not criminal in its nature. (Emphasis in original) Finding on Criminal Contempt
[24] On December 6, 2007, this court ordered that Mr. Dunlop attend before the Commission on January 14, 2008 to give evidence. He refused to appear, but as noted above, he did speak to the media and discussed matters that would be part of his testimony before the Commission.
[25] Despite his apparent intention to "tell his story" to the public, he continues to refuse to testify at the inquiry. On February 20 in the hearing before this court, he was given another opportunity to testify, on Monday, February 25, but he refused the opportunity.
[26] Mr. Dunlop was aware of the fact that a warrant had been issued for his arrest. The police gave him the opportunity to travel to Ontario voluntarily for the court appearance on February 20, but he refused the opportunity, insisting that he be arrested. On February 17, 2008, he was arrested before a large crowd assembled in front of his residence in Duncan, B.C.
[27] On Saturday, February 16, and Sunday, February 17, 2008, local police officers were in touch with Mr. Dunlop and members of the Dunlop household in Duncan, B.C. concerning the arrest warrant.
[28] In due course, Mr. Dunlop communicated with the local police and he purported to give the officers a one-hour window for his arrest on Sunday, February 17, 2008.
[29] The following is an extract from affidavit evidence filed on behalf of the Commission:
(c) At 1:48 p.m. Sunday afternoon, Mr. Dunlop phoned Cst. Nguyen. He said that he was at home and wanted to be arrested. Cst. Nguyen explained to Mr. Dunlop the proposed arrangement for him to voluntarily travel to Toronto. He indicated that he did not want to proceed in that manner and would not return to Ontario unless he was arrested. Further, he would only be at his home for the next hour and if not arrested before then, he would be 'somewhere else in Canada'.
(d) At 2:20 p.m. Sunday afternoon, Cst.s Nguyen and Power attended Mr. Dunlop's residence to arrest him. They were met by approximately 120 people and local news reporters. The crowd was booing the constables and questioning why they were arresting Mr. Dunlop. The [page532] constables met with Mr. Dunlop and Helen Dunlop, surrounded by the crowd. Cst. Nguyen attempted to arrest Mr. Dunlop but did not have a copy of the Warrant in hand. Mr. Dunlop challenged Cst. Nguyen's authority to arrest him. The constables retreated. They returned about 20 minutes later with a copy of the warrant. The crowd was still present and Helen Dunlop was making loud statements to the crowd to the effect of, 'We want to know why you are arresting an innocent person,' and, 'It's all a cover up.' They arrested Mr. Dunlop.
[30] It is apparent from this evidence that Mr. Dunlop orchestrated the time and place of his arrest so that there could be a large public gathering of his supporters and the media to witness his arrest and for his supporters to publicly express their disapproval thereof.
[31] On February 20, he refused once again to testify. This took place in court, in the presence of a full public gallery.
[32] Mr. Dunlop has not only refused to comply with this court's order, he has done so deliberately and with full intent. He has done so flagrantly and publicly, and he has done so in a manner that has invited and attracted much public attention. Despite refusing to testify, he has discussed matters with the media and has indicated that although he will not testify, he may well write a book and that he "will tell Canadians his story".
[33] He has indicated publicly and to the court directly that he will go to jail rather than testify -- whether that be three months or six months (which was the range submitted by the Commission and the Crown) for the civil contempt.
[34] One must not lose sight of the mandate of the Commission -- to determine what happened in Cornwall, including how institutions responded -- as well as its ultimate purpose, which is surely the protection of children from sexual abuse. Despite this, Mr. Dunlop continues to refuse to testify.
[35] The Supreme Court of Canada has stated that the offence of criminal contempt of court is made out where it has been established, through proof beyond a reasonable doubt, that the accused "defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to deprecate the authority of the court (the mens rea)": United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, 71 C.C.C. (3d) 225, at p. 933 S.C.R., p. 253 C.C.C. The mens rea can be inferred from the circumstances of the case. In particular, the Supreme Court of Canada has held that "when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt": United Nurses, supra, at p. 933 S.C.R. [page533]
[36] Here, it has been established beyond a reasonable doubt, indeed beyond any doubt, that Perry Dunlop is guilty of criminal contempt of this court and we so find. Penalty for Contempt Generally
[37] The power of a court to punish for contempt is essential to the due administration of justice. The rule of law is the bedrock of a democratic and free society. These concepts go far beyond the pragmatic need for a court to be able to enforce its orders per se. Rather, without such powers, individuals would be free to pick and choose which court orders they would obey and which ones they would not, surely with resultant disorder and chaos in the community.
[38] The power of the court to punish for contempt is considered necessary to assert the court's authority and prevent undue interference with the proper administration of justice. As the Supreme Court of Canada stated per McLachlin J. in United Nurses, supra [at para. 50]:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[39] Justice Blair, now a Justice of the Ontario Court of Appeal, put it succinctly when he was a trial judge:
No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its law and its courts' orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice. Surgeoner v. Surgeoner, [1992] O.J. No. 299, 6 C.P.C. (3d) 318 (Gen. Div.), at p. 319 C.P.C.
[40] That Mr. Dunlop refused to testify before a commission of inquiry rather than a court does not reduce the seriousness of his disobedience. Public inquiries have a long history in Canada and are an important part of our legal and political fabric. In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, [1995] S.C.J. No. 36, Cory J. described the history and role of commissions of inquiry in these terms [at paras. 62-65]:
One of the primary functions of public inquiries is fact- finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover the "truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging [page534] investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and hi gh public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole.
They are an excellent means of informing and educating concerned members of the public. . . . . .
The investigative, educational and informative aspects of inquiries clearly benefit society as a whole.
[41] The "status and high public respect for the commissioner" is an integral aspect of commissions of inquiry and is necessary for an inquiry to achieve its mandate of restoring public confidence in the institution or process under review. Mr. Dunlop's blatant disregard for the work of the Commission and refusal to participate diminishes public confidence in the work of the Commission and should be punished accordingly.
[42] The penalty for contempt must take into account all aggravating and mitigating circumstances and be governed by the circumstances of each individual case. The range of penalty in the cases referred to by the Commission counsel and counsel for the Attorney General is 15 days' to 15 months incarceration: Niagara (Regional Municipality) Police Services Board v. Curran (2002), 57 O.R. (3d) 631, [2002] O.J. No. 179 (S.C.J.); R. v. Rai, [1995] O.J. No. 4391 (Gen. Div.); R. v. Lamer (1973), 17 C.C.C. (2d) 411 (Que. C.A.); Ontario (Royal Commission on Certain Sectors of the Building Industry) (Re) (1974), 1 O.R. (2d) 699, [1973] O.J. No. 2209 (Div. Ct.); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101; Ontario (Royal Commission into the Niagara Regional Police Force - Colter Commission) v. DeMarco, [1990] O.J. No. 161, 38 O.A.C. 140 (Div. Ct.). [page535]
[43] Mr. Dunlop, in his submissions, did not refer to any circumstances which one could consider to be mitigating. However, this court takes note of the fact that Mr. Dunlop, on the record before us, appears to have otherwise been a law- abiding citizen.
[44] The Crown submits that the following circumstances ought to be considered in arriving at an appropriate sentence for Mr. Dunlop: (i) The Inquiry serves an important public purpose; (ii) Mr. Dunlop is a significant witness in the Inquiry; (iii) Mr. Dunlop has repeatedly refused to testify; (iv) The need to give effect to the principles of deterrence and denunciation; and (v) The impact of Mr. Dunlop's failure to testify on the Inquiry's mandate to inquire into issues of public concern openly.
[45] We agree.
[46] As noted by Quinn J. in Niagara Police Services Board, supra, the range of penalty for contempt can be no penalty (usually where the contempt has been purged), a suspended sentence perhaps conditional on some act or event occurring, a fine or incarceration. We add another possibility -- both a fine and incarceration.
[47] Quinn J. also had this to say in Niagara Police Services Board [at para. 28]:
It is trite of me to observe that a sentence, to be fit, must be proportionate to the gravity of the wrongdoing. Although the mere finding of contempt carries with it the recognition that the conduct of the contemnor was deliberate and wilful, nevertheless, contempt can reflect degrees of wrongdoing. In other words, not every instance of contempt is equally blameworthy: all are serious, but some are more serious than others. Here, it must be remembered that the defendant has, repeatedly, thumbed his nose at the Licensing By-law and the Judgment.
[48] Deterrence, both specific and general, is the most important aspect of a contempt penalty. Nevertheless, proportionality must be considered and applied when imposing a penalty.
[49] A contemnor who has been incarcerated for civil contempt may be released before the end of the period upon the purging of the contempt. See rule 60.11(8) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194].
[50] On the other hand, a penalty for criminal contempt cannot be alleviated despite the contemnor having purged his contempt. If a period of incarceration is ordered, it must be served in its [page536] entirety. Once ordered, the court is functus officio: Attorney General v. James, [1962] 1 All E.R. 255, [1962] 2 Q.B. 637 (Q.B.). See also Pereira v. Canada (Minister of Manpower and Immigration), [1977] O.J. No. 2547, 33 C.C.C. (2d) 435 (H.C.J.).
[51] For the civil contempt as found in this court's ruling of December 6, 2007, we order that Mr. Dunlop be imprisoned for a period of six months. If, prior to the end of that period Mr. Dunlop purges his contempt by testifying at the Commission and answering all proper questions, then, upon conclusion of such testimony, he may apply to this court for an order for immediate release from custody, pursuant to rule 60.11(8) of the Rules of Civil Procedure. Upon completion of this sentence, Mr. Dunlop shall be brought before this court to be sentenced for criminal contempt of court.
[52] The committal warrant shall be endorsed that this sentence is not subject to remissions of any kind unless further ordered by this court. Counsel for the Commission shall forthwith forward a copy of these reasons to the Superintendent of the Correctional Facility where Mr. Dunlop is being held.
[53] Mr. Dunlop shall be held in segregated, protective custody.
[54] Approval of this court's order as to form and content by Mr. Dunlop is dispensed with.
[55] For Mr. Dunlop's criminal contempt, the court defers imposition of penalty until the completion of the aforesaid term of imprisonment for civil contempt.
[56] The Warrant of Committal shall be endorsed that upon completion of the aforesaid term of imprisonment he shall remain in custody until he is brought before this court to be sentenced for criminal contempt of court.
Order accordingly.