ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-460830-00
DATE: 20130927
BETWEEN:
GREGORY DONOHUE and EXCLUSIVE ADVERTISING INC.
Plaintiffs
– and –
JOHN PIERCE also known as JOHN HOLLYWOOD PIERCE, CITY OF TORONTO and TORONTO PUBLIC LIBRARY
Defendant
Riaz S. Ahmed, for the Plaintiffs
John Pierce, in person
T. Mcewen j.
reasons for DECISION
1On June 21, 2013, I found Mr. Pierce to be in contempt of the Order of Justice Roberts and scheduled the sentencing hearing to take place on August 28, 2013. On that date Mr. Pierce sought an adjournment so he could retain counsel. I adjourned the hearing to today subject to terms.
2Mr. Pierce has not filed any additional documentation with respect to the issue of sentencing. The plaintiffs have filed two affidavits of Ting Cao setting out ongoing postings by Mr. Pierce in July and August 2013.
3The plaintiffs have asked me to impose a three to six month period of incarceration upon Mr. Pierce.
4Mr. Pierce has submitted that if he is incarcerated he will not be able to pay his bills and will become homeless. Following questioning by me he undertook and promised to comply with the Order of Justice Roberts. He apologized to the Court.
the law
5With respect to the law, as Cumming J. stated in Sussex Group Limited v. Fangeat (2003) 42 C.P.C (5th):
“It is integral to a free and democratic society like Canada that citizens act pursuant to and under the rule of law. Court orders in force must be respected and followed. The deliberate failure to obey a court order strikes at the very heart of the administration of justice”.
6Insofar as sentencing itself is concerned the purpose of a sentence for civil contempt is coercive or persuasive and is designed to enforce the rights of a private party: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008) 2008 ONCA 534, 91 O.R. (3d) 1 (C.A.).
7In determining the appropriate sanction, the court must give consideration to the sentencing principles set out in section 718 and 718.1 of the Criminal Code of Canada. These include deterrence, denunciation, proportionality, rehabilitation, the presence of mitigating and aggravating factors, and the promotion of a sense of responsibility and the acknowledgement of the harm done to victims and the community: see: Sussex Group Ltd. v. Fangeat, [2003] O.J. No. 3348 (Sup. C.J.), at para. 67.
8Mitigating factors include the absence of contumacious intent, a sincere apology offered to the court, a contemnor’s remorse, an admission of or consent to a finding of contempt, purging of the contempt, and the age and health of the contemnor. Factors such as the intentional violation of a court order and continued defiance may be considered as aggravating factors. See: Sussex Group Ltd. v. Fanget, supra, at para. 55.
9The principle of proportionality dictates that a sentence for civil contempt should be proportionate to the seriousness of the offence. The least restrictive sanction, that would ensure compliance and accord with the principles of fundamental justice, should be imposed.
10Rule 60.11(5) of the Rules of Civil Procedure gives a judge disposing of a contempt motion the power to make such order as is just and, where a finding of contempt is made, the judge may order, among other things, that the person in contempt be imprisoned, that he do an act, pay such costs that are just, and comply with any other order that the judge considers necessary.
11Costs of a successful motion should, in the ordinary course, be on a substantial indemnity basis because the moving party should be indemnified for having to bring its motion and incur the costs to compel the contemnor’s compliance with the breached order. See: Canadian Copyright Licensing Agency v. U-Compute, 2007 CarswellNat 771 (Fed. C.A.), at paras. 38-40; and West Lincoln (Township) v. Chan, 2001 CarswellOnt. 1885 (Ont. Sup. C.J.), at para. 43.
12In this case Mr. Pierce’s breach of Justice Robert’s Order is a very serious matter. Not only did he email Mr. Pare, a former business colleague of Mr. Donohue, but he also provided personal information about Mr. Donohue to Mr. Pare. More significantly, he contacted the media to attempt to persuade them to publish a negative story about Mr. Donohue’s alleged stalking of Mr. Pierce. Further, in July and August of this year, notwithstanding Justice Roberts’ Order and my finding of contempt, Mr. Pierce repeatedly breached Justice Roberts’ Order by posting multiple, derogatory comments about Mr. Donohue on the Internet. He has not apologized to Mr. Donohue. More troubling are his efforts to justify his behaviour as evidenced by his emails to Mr. Ahmed. As a result of the contempt, Mr. Donohue’s uncontradicted evidence is that he has suffered from anxiety and is genuinely concerned for his safety and that of his family.
13In my view, this is one of those cases in which it is appropriate to impose a serious penalty even though it is the first offence. Mr. Pierce’s defiance of Justice Roberts’ Order has been obvious, unrepentant and ongoing.
sentence
14I have found that you have deliberately and wilfully breached the Order of Justice Roberts and that you have demonstrated that you believe that you are above the law. In such a case general deterrence and denunciation are important factors. Our judicial system cannot permit people to willingly violate court orders.
15By the same token you have now apologized to the Court and promised to comply with the Order of Justice Roberts from this point forward. That being said, however, you have made such undertakings in the past and have not complied with them.
16In all of the circumstances, in my view, it will be reasonable to afford you one last chance before a penalty of incarceration results in your loss of liberty. Accordingly, you shall not be imprisoned at this time but in the future if you fail to comply with the provisions of the Order of Justice Roberts of September 12, 2012, you shall be sentenced to a terms of 90 days in jail unless you can show cause why incarceration should not at that time be enforced against you.
17If there is a further breach, the plaintiffs may move on two day’s notice to bring the sentencing hearing back before me and can serve Mr. Pierce by email at johnhollywoodpierce.gmail.com which Mr. Pierce has confirmed to be an operating email address. If this occurs, the parties can file their materials, to my attention, at Judges’ Administration and I will provide the parties with an immediate date for sentencing.
costs
18The plaintiffs shall have their costs sought of $8,678.40 which are reasonable and shall be paid with 60 days.
T. McEwen J.
Released: September 27, 2013
COURT FILE NO.: CV-12-460830-00
DATE: 20130927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY DONOHUE and EXCLUSIVE ADVERTISING INC.
Plaintiffs
– and –
JOHN PIERCE also known as JOHN HOLLYWOOD PIERCE, CITY OF TORONTO and TORONTO PUBLIC LIBRARY
Defendant
REASONS FOR DECISION
T. McEwen J.
Released: September 27, 2013