COURT FILE NO.: 06-CV-311034PD3

DATE: 20141003

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert M. Astley, Plaintiff

AND:

J. Robert Verdun, Defendant

BEFORE: R. F. Goldstein J.

APPEARANCE:

Brian N. Radnoff, for Robert Astley

Mary L. Biggar, for Robert Verdun

ENDORSEMENT RE: allegation of conditional sentence breach

[1] On May 23 2013 I found Mr. Verdun guilty of contempt of court: Astley v. Verdun, 2013 ONSC 2998, [2013] O.J. No. 2356 (Sup.Ct.). On October 29 2013 I sentenced Mr. Verdun to a conditional sentence of imprisonment for 90 days followed by 18 months probation: Astley v. Verdun, 2013 ONSC 6734, [2013] O.J. No. 4942, 118 O.R. (3d) 43 (Sup.Ct.). Mr. Verdun appealed both his conviction and his sentence. Hourigan J.A. stayed the effect of my order pending appeal. The Ontario Court of Appeal dismissed Mr. Verdun’s appeal on September 24 2014: Astley v. Verdun, 2014 ONCA 668. The stay was lifted by that Court on September 29 2014.

[2] On September 29 2014 Mr. Radnoff, counsel for Mr. Astley, wrote to me requesting an urgent appearance. Mr. Radnoff indicated that he had information that Mr. Astley was already in breach of my conditional sentence order.

[3] This endorsement is written to provide guidance for the parties.

[4] A conditional sentence of imprisonment a relatively unusual sanction for civil contempt. The Court has very wide discretion as to the manner in which contempt orders are enforced: Rule 60.11 of the Rules of Civil Procedure; Chiang (Trustee of) v. Chiang, 2009 ONCA 3, [2009] O.J. No. 41, 93 O.R. (3d) 483, 305 D.L.R. (4th) 655 (C.A.).

[5] The question I am faced with is how to proceed where it is alleged that there has been a breach of my conditional sentence order. In my view, there are two possible routes: the traditional civil route, and, by analogy, the criminal route.

The Traditional Civil Route

[6] A conditional sentence order is a court order like any other. Subrule 60.11(5) deals with the content of an order where someone is found in contempt. That subrule gives a judge the authority to:

• impose a sentence of imprisonment;

• impose a fine;

• order a person to do or refrain from doing an act; or,

• do anything that the judge considers necessary in the circumstances.

[7] In other words, a judge has a wide power to do such things as are required in the interests of justice to enforce a court order. My conditional sentence order was made under that very broad authority.

[8] Where a person fails to do something when ordered to do so under Rule 60.11(5)(d) or (f) he or she may be guilty of a further contempt. Thus, if Mr. Verdun has breached my conditional sentence order, it is a further contempt.

[9] The opposing party may then move, supported by proper evidence, for an order of further contempt. Since the breach of the conditional sentence order is a new contempt, it is, in effect, a new offence.

[10] The fresh contempt may bring fresh sanctions. In my view, those sanctions should be informed by those set out in the breach of conditional sentence provisions in the Criminal Code.

The Criminal Route By Analogy

[11] Section 742.6 of the Criminal Code sets out a complete code for dealing with allegations of breach of a conditional sentence. Where there has been an allegation of breach of a conditional sentence the offender may be brought back before the court pursuant to the provisions in the Criminal Code for compelling appearance. The analogous civil procedure is for a judge to issue an arrest warrant if it appears that the contemnor will not appear voluntarily: Rule 60.11(4).

[12] The allegation of breach of a criminal conditional sentence must be supported by the report of a conditional sentence supervisor: s. 742.6(4). My order contemplates that Mr. Verdun report to a conditional supervisor (in reality, usually a probation officer employed by the appropriate provincial ministry). I would expect that the Criminal Code provisions apply to a civil contemnor to this extent: if there has been an allegation of breach the conditional sentence supervisor will transmit a report to the Court. That report is admissible as evidence provided that the offender has reasonable notice and a copy of the report: s. 742.6(5). The conditional sentence supervisor should also provide a copy of the report to counsel for the plaintiff.

[13] Pursuant to s. 742.6(9) of the Criminal Code the Court need only be satisfied on a balance of probabilities that an offender has breached his or her conditional sentence. That, however, is where the analogy stops. Parliament has chosen to reverse the burden in a breach situation and to lower the legal burden on the Crown. The Crown need only prove that breach on a balance of probabilities. Additionally, the burden is on the offender to prove that he or she has not breached.

[14] In my respectful view it would be wrong to import that aspect of the conditional sentence provisions of the Criminal Code into the civil contempt process.

[15] Thus, in a civil contempt, where a contemnor has been sentenced to a conditional sentence of imprisonment, or for that matter to a probation order, a fresh breach of the order must be proven beyond a reasonable doubt. I say that because the policy reasons behind the use of a conditional sentence in criminal matters are different from the policy reasons behind the use of a conditional sentence in civil contempt. Briefly, in criminal matters the criminal law sentencing goals of denunciation, deterrence, rehabilitation may be furthered by using sanctions other than jail. The purpose of civil contempt orders is to compel obedience and punish disobedience: College of Optometrists of Ontario v. SHS Optical Ltd, 2009 ONCA 3, [2009] O.J. No. 3933, 93 O.R. (3d) 483 (C.A.).

[16] Thus, a breach of a conditional sentence order in a contempt matter must be proven beyond a reasonable doubt, just like any other breach of a civil contempt order.

[17] That said, the remedies available to a judge upon finding a breach found in s. 742.6(9) would be available. The discretion afforded to judges under Rule 60.11 is wide enough to encompass the remedies contemplated by s. 742.6(9). These remedies could include directing that a portion of the unexpired sentence be served in custody; changing some of the conditions; or terminating the conditional sentence order and committing the offender to custody until the sentence expires.

Conclusion

[18] Mr. Radnoff, for the Plaintiff, is free to follow the traditional route and bring a fresh motion for contempt, supported by evidence, before me. He is to work with counsel for Mr. Verdun to obtain a mutually agreeable date for the return of the motion. Counsel should then contact my assistant for my dates.

[19] Alternatively, there is nothing to prevent the Plaintiff from contacting Verdun’s conditional sentence supervisor to report a breach. The conditional sentence supervisor will then investigate whether there has actually been a breach. If there has been, then a report will be made to the Court. Counsel for the Plaintiff is obviously free to supplement that report (and may need to, in fact, with further evidence) for the purposes of a fresh motion.

[20] In either case I will then hear that motion and determine whether there has been a fresh contempt, and, if so, what to do about it.

R. F. Goldstein J.

Date: October 3, 2014