COURT OF APPEAL FOR ONTARIO

CITATION: Astley v. Verdun, 2015 ONCA 543

DATE: 20150721

DOCKET: C59749

Doherty, Lauwers and Huscroft JJ.A.

BETWEEN

Robert M. Astley

Plaintiff

(Respondent)

and

J. Robert Verdun

Defendant

(Appellant)

Charles M. Campbell and Safia J. Lakhani, for the appellant

Brian N. Radnoff, for the respondent

Heard and released orally: July 3, 2015

On appeal from the order of Justice Robert Goldstein of the Superior Court of Justice, dated November 18, 2014.

ENDORSEMENT

[1] The appellant appeals from the motion judge’s order and the warrant of committal for civil contempt. The motion judge sentenced the appellant to seven months of house arrest, 24 months of probation, and 300 hours of community service and required the appellant to deliver his passport to the court.

[2] The appellant argues that the motion judge did not have jurisdiction to hear the motion with respect to the alleged breach of the conditional sentence. Instead, the appellant argues that the motion should have proceeded before the court in Kitchener-Waterloo where the appellant resides and where the sentence was being supervised. In the alternative, the appellant argues that the motion judge failed to consider all of the evidence before him and issued a sentence that was inappropriate and unduly harsh.

[3] This process started as a civil contempt process and retains that character. The discretion of a judge in civil contempt is governed by rule 60.11 of the Rules of Civil Procedure. A judge is free to use s. 742 of the Criminal Code for guidance in imposing a conditional sentence as penalty for a contempt. However, that does not subject the judge to the constraints of s. 742. It was open to the motion judge to levy a new penalty for the appellant’s breach of the sentencing order for the first contempt regardless of the requirements of s. 742 in the context of criminal contempt.

[4] As to the penalty, we see that the functions of general and specific deterrence were adequately met by the extension of the conditional sentence by seven months, as the motion judge fully explained in his reasons. However, we see no utility in the additional sentence of 300 hours of community service, which we find to be simply unreasonable. That part of the order is set aside.

[5] The appeal is dismissed, subject to the variation noted in paragraph 4.

[6] The appellant’s passport will be held by the Superior Court under the terms of the warrant of committal.

[7] The appellant shall pay the respondent costs in the amount of $10,000, inclusive. These costs are to be paid out of the security presently deposited with the court in relation to this proceeding.

“Doherty J.A.”

“P. Lauwers J.A.”

“Grant Huscroft J.A.”