Court of Appeal for Ontario
Directv Inc. v. Boudreau
Echostar Satellite Corp. v. Boudreau
Date: 2005-08-05
Court File Nos. C43813; M32719
Charles Wagman, for appellant, William Boudreau (a.k.a. Billy Boudreau), William Boudreau c.o.b. as <www.emulatorl.com>, William Boudreau c.o.b. as WCT WEBHOSTING.
Ira Nishisato, for respondents, Directv, Inc., Echostar Satellite Corp. and Echostar Technology Corp.
No one appearing for appellants, Techlords Online Inc., 1556186 Ontario Inc., John Doe, Jane Doe and other persons unknown who have conspired with the named defendants.
No one appearing for respondent, Nagrast LLC.
Endorsement
[1] Blair J.A. (orally):—Mr. Boudreau was committed for civil contempt by Spence J. on March 24, 2005 [2004 ONSC 9191, 31 C.P.R. (4th) 286] and sentenced to imprisonment for nine months (three months for contempt and six months for prejudice caused to the plaintiff) on June 20, 2005.
[2] He appeals the sentence, but not the finding of contempt. In this motion he seeks an order staying the sentence pending disposition of his appeal.
[3] The motion is granted subject to the terms outlined below, for the reasons that follow.
[4] As this is a civil proceeding, and Mr. Boudreau has been ordered committed for civil contempt, the parties have approached this motion from a civil perspective, notwithstanding that Mr. Boudreau has now been sentenced to imprisonment, and Mr. Wagman seeks a stay in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the principles outlined by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994 SCC 117, [1994] 1 SCR 311, 54 C.P.R. (3d) 114]. Is there a serious question to be determined? Will there be irreparable harm if the stay is not granted? Where does the balance of convenience lie? No authority was cited on the subject, but I would have thought the better approach to be through the provisions of s. 679(1) of the Criminal Code, R.S.C. 1985, c. C-46, dealing with judicial release pending determination of the appeal, since Mr. Boudreau has now been ordered imprisoned and it is that order which is the subject of the appeal. Is the appeal frivolous? Will Mr. Boudreau surrender in accordance with the terms of any order made? Is his detention necessary in the public interest? It is not necessary to decide this issue, however, since I am satisfied, on either approach, that Mr. Boudreau should not have to serve his term of imprisonment pending the disposition of the appeal.
[5] Mr. Wagman will raise a number of grounds on appeal, including the argument that the sentence imposed is unduly harsh and outside the acceptable range in the circumstances, the submission that the motion judge did not have the authority to sentence Mr. Boudreau to six months imprisonment for "prejudice", and the contention that a conditional sentence was not considered. Without commenting on the merits of these arguments, I cannot say they do not raise a serious question to be determined. Clearly, Mr. Boudreau will suffer irreparable harm if he succeeds on the appeal but the stay is not granted because, for practical purposes, by the time the appeal is heard, he will have served his sentence. From a public policy perspective, this tips the balance of convenience in his favour.
[6] Similarly, I cannot say that the proposed sentence appeal is frivolous. If leave is necessary I grant it.
[7] I do have some concerns about whether Mr. Boudreau would surrender himself into custody if the sentence were simply stayed without any terms, however. The record establishes clearly that he has a very troubling attitude towards the obedience of court order. Spence J. found that his contempt of the Anton Pillar order was "egregious". Notwithstanding he was ordered to be imprisoned immediately at the sentencing hearing he did not surrender. Nor did he surrender after a warrant for his arrest was issued (the execution of that warrant was stayed by Justice Labrosse pending this hearing, without prejudice, on July 14, 2005).
[8] In the end, however, I am satisfied that these concerns can be met by conditions imposed. I do not believe Mr. Boudreau's detention pending appeal is necessary in the public interest.
[9] An order will therefore issue staying the sentence imposed and directing that Mr. Boudreau not be detained pending the disposition of his appeal, subject to the following terms and conditions. He shall:
provide his personal undertaking to surrender and he shall surrender into custody at the Hamilton Jail by 6:00 p.m. on the day prior to the hearing of the appeal or on February 6, 2006, whichever is the earlier;
acknowledge that failure to surrender into custody in accordance with the terms of this order will be deemed to constitute an abandonment of the appeal;
pursue the appeal with all due diligence;
keep the peace and be of good behaviour;
advise the court Registrar of any change in residence within twenty-four hours of any such change;
remain in the Province of Ontario;
report to the officer in charge at the Hamilton Police Service on Monday, August 8, 2005, and thereafter at least once a week as directed by the police pending the appeal;
deposit his passport, if any, with the officer-in-charge;
continue to attend school;
refrain from communication or association with any person known to him to be engaged in the "grey market" or "black market" satellite business, or with any person known by him to have a criminal record.
[10] The appeal is to be perfected no later than October 14, 2005 and to that extent the transcript of the sentencing hearing is to be expedited if necessary.
Motion granted.