COURT FILE NO.: 515/07

DATE: 20080903

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER and SWINTON JJ.

B E T W E E N:

THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER OF THE CORNWALL PUBLIC INQUIRY

Applicant

• and -

PERRY DUNLOP

Respondent

Brian Gover and Patricia M. Latimer for the Applicant

David M. Humphrey and Joanna L. Goldenberg for the Attorney General for Ontario

Self Represented

HEARD at Toronto: September 3, 2008

SWINTON J.: Orally)

1The panel of this Court first hearing the stated case in the proceedings was compromised of Hoilett J., Ferrier J. and Swinton J. Hoilett J. retired on February 5, 2008, while the proceeding had not yet been completed.

2Pursuant 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.

3We are not divided, and we are unanimous in this decision. These are the reasons of the Court.

BACKGROUND

4In Reasons for Judgment released December 6, 2007, in a case stated by the Commissioner of the Cornwall Public Inquiry, this Court found Perry Dunlop guilty of civil contempt for his persistent refusal to answer questions before the Inquiry. The Court ordered Mr. Dunlop to appear before the Commissioner on January 14, 2008, to answer questions asked by Commission counsel and counsel for the parties with standing. It was further ordered that Mr. Dunlop attend before this Court on a date to be fixed to address the issue of punishment for his civil contempt.

5On January 28, 2008, this Court convened for continuation of the stated case. Mr. Dunlop failed to appear either personally or by counsel. Accordingly, the Court directed that a warrant issue for the arrest of Mr. Dunlop to bring him before the Court for sentencing on his civil contempt and to respond to an application by the Commissioner to have Mr. Dunlop found guilty of criminal contempt for disobeying the Court’s December 6th Order. Further, in accordance with the preferred practice and proceedings involving criminal contempt, the Court requested that the Attorney General of Ontario participate in the contempt proceedings.

6This Court re-convened on February 20, 2008 for a continuation of the stated case. Mr. Dunlop appeared before the Court in custody, having been arrested on February 17, 2008, in British Columbia. During the hearing, Mr. Dunlop was offered the opportunity to appear before the Commission to testify on Monday, February 25th. He refused to do so.

7After hearing submissions from counsel for the Commissioner, counsel for the Attorney General of Ontario and for Mr. Dunlop, the proceedings were adjourned to March 5, 2008. On that date, this Court offered one further opportunity to Mr. Dunlop to indicate that he was prepared to give evidence before the Inquiry. Mr. Dunlop maintained his refusal to testify. The Court then proceeded to deliver its Reasons for Judgment. This Court found Mr. Dunlop guilty of criminal contempt of court for his open, continuous and flagrant disobedience of the Court’s December 6th Order. Further, the Court ordered that for his civil contempt, Mr. Dunlop be imprisoned for a period of six months. The sentence allowed Mr. Dunlop to purge his contempt by testifying at the Inquiry, following which he could apply to the Court for immediate release from custody.

8Finally, upon completion of his sentence for civil contempt, Mr. Dunlop was to be brought back before the Court to be sentenced for his criminal contempt. The issue before us today is the appropriate sentence for Mr. Dunlop’s criminal contempt.

THE RELEVANT FACTS

9In determining the appropriate sentence, we have taken into account the facts found in our Reasons delivered March 5, 2008. This Court found that Mr. Dunlop has played a central role in the subject matter of the Inquiry. He was the initial “whistle-blower”, he interviewed alleged victims and gathered information about an alleged clan of pedophiles, he collected information on a conspiracy to obstruct justice with regard to the original police investigation, he delivered his “findings” to other police agencies and to the Attorney General for Ontario and he prepared a “Will State” in anticipation of prosecutions relating to allegations of child sexual abuse.

10This Court found that Mr. Dunlop has knowledge and information that goes to the very heart of the mandate of the Commission and that he has not provided any lawful excuse to justify his failure to testify. Despite the absence of any lawful excuse and despite being ordered by this Court to testify, Mr. Dunlop has maintained his refusal to testify.

11In the proceedings before the Inquiry, Mr. Dunlop was given ample opportunity to obtain legal advice. He consistently maintained his refusal to testify. He variously sought to justify his refusal by saying he has no faith in the Ontario justice system or the mandate of the Inquiry. He said he was forced to appear against his will and he could add nothing to his “Will State”. He claimed the process is a cover-up and claimed that he was made to be a “scapegoat”.

12Mr. Dunlop’s criminal contempt is founded on his defiance of this Court’s Order of December 6th, 2007, directing that he appear before the Commission to testify on January 14, 2008. As we noted in our earlier reasons, rather than quietly maintaining his refusal to testify, Mr. Dunlop “publicized his intention to disobey the order and attacked the integrity of the Commission, bringing the administration of justice into disrepute”. His “open, continuous and flagrant” disobedience of this Court’s Order was reflected in two media interviews, the January 10, 2008 interview with Canadian Press and the January 11, 2008 interview with CBC Radio One, which were quoted in the earlier reasons.

13This Court found as a fact that Mr. Dunlop “had indicated publicly and to the Court directly that he will go to jail rather than testify whether that be three or six months (which was the range submitted by the Commission and the Crown) for the civil contempt”.

14Consistent with his publicly announced intention to defy this Court’s Order, Mr. Dunlop refrained from appearing before the Commission on January 14, 2008. He then refrained from attending before this Court for the continuation of the stated case on January 28, 2008.

15As a result of Mr. Dunlop’s non-attendance before the Court, a warrant issued for his arrest. As the Court noted in its March reasons, the police offered Mr. Dunlop the opportunity to travel voluntarily to Ontario to make the court appearance scheduled for February 20th. Mr. Dunlop refused that offer and insisted that he be arrested.

16This Court reviewed the circumstances surrounding Mr. Dunlop’s arrest and concluded 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”.

17When Mr. Dunlop was brought before the Court on February 20th, he declared to the Court and the full public gallery that he would not testify at the Cornwall Inquiry.

18The Court noted that Mr. Dunlop has not only refused to testify flagrantly and publicly, but he has done so in a manner that has “invited and attracted much public attention”. He has refused to answer any questions at the Inquiry but has announced to the media that he may well write a book in which he will tell Canadians his story.

19Mr. Dunlop was sentenced to six months for civil contempt. The sentence for criminal contempt was deferred to provide Mr. Dunlop with an opportunity to mitigate his contempt and his sentence for criminal contempt by complying with the Court’s Order that he testify before the Commission. Mr. Dunlop still refuses to testify.

SENTENCING PRINCIPLES FOR CRIMINAL CONTEMPT

20Sentencing for criminal contempt involves the application of the principles and procedures ordinarily applied in criminal cases. The sentencing court must consider all aggravating and mitigating circumstances and must tailor the sentence to the circumstances of the individual case. It is a fundamental principle of sentencing that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (see Criminal Code, s.718.1).

21In sentencing a witness for refusal to testify before a Court or an Inquiry, the overriding consideration in determining sentence is deterrence, both personal and general (see Ontario (Royal Commission into Niagara Regional Police Force) v. DeMarco, [1990] O.J. No. 161 (Div. Ct.) at page 2 of the Quicklaw version).

SUBMISSIONS ON SENTENCE

22Counsel for the Attorney General submits that an appropriate sentence for criminal contempt would be in the range of three to six months in order to give effect to deterrence, to denounce the conduct and to vindicate this Court’s authority, subject to factors that may weigh in favour of reducing the sentence. The Attorney General also submits that the sentence should be served consecutively.

23Mr. Dunlop submits that there should be no further period of incarceration. He said that he meant no disrespect to this Court in refusing to testify, that he had paid his debt to society, that he is a peaceful man and that the impact of further incarceration would be very difficult for him and his family. He also described, in moving terms, the difficult circumstances he has faced while incarcerated over the last six months.

THE SENTENCING DECISION

24Consecutive sentences should ordinarily be imposed when offences are committed at different times or when they “constitute invasions of different legally protected interests” (see R. v. Gummer (1983), 1983 5286 (ON CA), 1 O.A.C. 141 (Ont. C.A.) at para. 13). In this case, the civil contempt and the criminal contempt were separated in time, although they are part of a chain of events, and they relate to different legally protected interests. The civil contempt relates to refusal to testify at the Cornwall Inquiry as directed by the Commissioner. The criminal contempt involves the flagrant and public defiance of this Court’s Order that Mr. Dunlop testify before the Commission and that he appear before the Court to address the issue of punishment for his civil contempt. Therefore, we are of the view that the sentence for criminal contempt should be consecutive to the sentence for civil contempt.

25It is a well established principle of sentencing that consecutive sentences should be tempered by the totality principle. The totality principle requires that a Court sentencing an offender to consecutive offences ensure that the cumulative sentence does not exceed the overall culpability of the offender. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (see Criminal Code, s.718.2).

26While Mr. Dunlop submits that there should be no further period of incarceration, we cannot ignore the seriousness of the criminal contempt. He has flagrantly and publicly refused to obey the Court’s Order to testify at the Inquiry. As stated by Blair J., as he then was, in Surgeoner v. Surgeoner (1992), 6 C.P.C. (3d) 318 (Gen. Div.) at 319:

No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts’ orders at their whim because in their own particular view it is right to do so.

Therefore, a further period of incarceration is necessary, both to denounce this defiance of the Court’s Order and to deter others from similar misconduct.

27Nevertheless, in the present case, we must take into account that Mr. Dunlop has served a sentence for six months for civil contempt without any remission. Therefore, taking into account the totality principle, we are of the view that the penalty for criminal contempt would normally be an additional period of incarceration of three months, resulting in a total period of incarceration of nine months for the civil and criminal contempt.

28In addition, there are mitigating factors that we take into account. Mr. Dunlop has been held in protective custody throughout his period of incarceration because of his status as a former police officer. The result is that he has served his sentence in difficult conditions as described by him today and documented in a memorandum, filed as “Exhibit 2”. Similarly, any further period of incarceration would be served in the same circumstances.

29While we take this into account, we also note however, that Mr. Dunlop had the opportunity at any time to testify before the Inquiry and thereby seek a reduction in his sentence for civil contempt. Therefore, his continued incarceration for civil contempt could be said to be of his own doing.

30Finally, Mr. Dunlop was incarcerated for sixteen days before his sentence (from February 17, 2008 to March 5, 2008). In sentencing an offender, the Court may take into consideration any pre-sentence incarceration served. Pre-trial custody is usually recognized as more onerous than serving a sentence, as the offender is not entitled to early release on parole and detention centres do not provide educational and rehabilitation programs. Accordingly, offenders are often given credit for double time in pre-trial custody (see R. v. Rezaie (1996), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.) at page 104).

31This pre-sentence period was not taken into account when Mr. Dunlop was sentenced for civil contempt. Credit should be given to him on a two-for-one basis for the period from February 20, 2008 to March 5, 2008. We would give no credit for the period from February 17 to 19 inclusive, as Mr. Dunlop had been given an opportunity to appear voluntarily and he chose not to accept it.

32Mr. Dunlop, will you please rise. Taking these considerations into account, this Court orders that Mr. Dunlop shall serve a further thirty days incarceration for criminal contempt, consecutive to his sentence for civil contempt, which ends September 4, 2008. He shall serve this sentence in protective segregated custody, and he shall not be entitled to any remission or parole.

SWINTON J.

FERRIER J.

Date of Reasons for Judgment: September 3, 2008

Date of Release:

COURT FILE NO.: 515/07

DATE: 20080903

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER and SWINTON JJ.