SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 06CV-311034PD3

DATE: 20141209

RE: Robert M. Astley v. J. Robert Verdun

BEFORE: Goldstein, J.

COUNSEL: Brian N. Radnoff, Counsel, for the Plaintiff

J. Robert Verdun, representing himself

HEARD: November 18, 2014

REASONS FOR SENTENCE ON SECOND CONTEMPT MOTION

BACKGROUND

[1] On November 18, 2014 I found Mr. Verdun guilty of contempt of court for a second time: Astley v. Verdun, 2014 ONSC 6888. On that occasion I likened Mr. Verdun’s obsession with Mr. Astley to the fictional Captain Ahab’s obsession with the White Whale. Like Captain Ahab, Mr. Verdun displays an unhealthy obsession with Mr. Astley that has blinded him to reason, common sense, and duty. Captain Ahab displayed a hubristic disregard for the power of nature in his hunt for the whale. Mr. Verdun has displayed a hubristic disregard for court orders. Captain Ahab’s refusal to accept reality was his undoing; Mr. Verdun’s refusal may well be his as well.

[2] The first time I found him in contempt, in May 2013, I imposed a relatively rare form of punishment for civil contempt: I sentenced him to a three-month conditional sentence similar to that found in s. 742.1 of the Criminal Code. I also imposed a period of probation of 18 months. See: Astley v. Verdun, 2013 ONSC 4942, 118 O.R. (3d) 43, [2013] O.J. No. 4942.

[3] Mr. Verdun appealed the finding of contempt and the sentence. He obtained a stay of the sentencing order about a month after it was imposed. In January 2014 Mr. Verdun booked a trip for himself and his companion, Nuella Freund. Ms. Freund apparently has back problems. The purpose of the trip was threefold: to investigate therapies in Europe, to engage in therapeutic swimming in France, and to see an osteopath in London. The trip was scheduled to last from September 15 to October 12, 2014. In June 2014 Mr. Verdun’s appeal of my first contempt finding and sentence was set down for hearing on September 24, 2014. The appeal was heard and dismissed from the bench. Mr. Verdun was in France at the time. His counsel asked for the stay to be extended. The Court of Appeal extended the stay of my sentencing order for five days, to September 29, 2014. That meant that Mr. Verdun had to return to Canada no later than September 29, 2014. He had to be back from France because the sentencing order required that he remain within the Province of Ontario.

[4] In fact, Mr. Verdun did not return to Canada until October 12, 2014. He did not vary his trip. He made desultory efforts to change his flight. I found that these were not genuine efforts to return to Ontario. He made no real attempt to comply with the sentencing order. In the absence of a good-faith attempt I found Mr. Verdun in contempt again.

ISSUES

[5] There are three issues to be determined:

(a) What are the positions of the parties?

(b) What are the aggravating and mitigating factors?

(c) What is the appropriate sentence?

ANALYSIS

[6] The purpose of contempt orders is to compel obedience and punish disobedience: College of Optometrists of Ontario v. SHS Optical Ltd, 2008 ONCA 685, [2008] O.J. No. 3933, 93 O.R. (3d) 139, 300 D.L.R. (4th) 548 (C.A.) at para. 106.

[7] I canvassed the principles of sentencing in contempt cases in my reasons for sentence on my first sentencing decision. They are similar to those found in the criminal law: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, [2009] O.J. No. 41, 78 C.P.C. (6th)110, 305 D.L.R. (4th) 655, 93 O.R. (3d) 483, 2009 CarswellOnt 28 (C.A.). I summarized these in my earlier reasons for sentence at para. 16:

• A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1; Chiang, para. 86; Mercedes-Benz Financial v. Kovacevic, 2009 9423 (ON SC), [2009] O.J. No. 888, 308 D.L.R. (4th) 562, 74 C.P.C. (6th) 326 (Sup.Ct.) at para. 12.

• A sentence should be increased or reduced to account for aggravating or mitigating factors surrounding the contempt or the contemnor: Criminal Code, s. 718.2(a); Chiang, para. 24; Sussex Group v. Fangeat, [2003] O.J. No. 3348, 42 C.P.C. (5th) 274 (Sup.Ct.) at para. 67.

• A sentence should be similar to sentences imposed on similar contemnors for similar contempts committed in similar circumstances: Criminal Code, s. 718.2(b); Chiang, para. 24.

• Sentences should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders: Criminal Code, s. 718; Sussex Group at para. 67; Chiang at para. 24.

• The Court should consider sanctions other than jail: Criminal Code, s. 718(2)(d) and (e); Sussex Group v. Sylvester, 2002 27188 (ON SC), [2002] O.J. No. 4350, 62 O.R. (3d) 123 (Sup.Ct.) at paras. 80-82.

(a) What are the positions of the parties?

[8] Mr. Verdun attempted to apologize to the Court and submitted that his apology had purged the contempt. He did not suggest a particular time frame for a conditional sentence but he seemed to understand that he would be required to serve something. His only request was that he be permitted to commence serving his sentence in the spring, after he and Ms. Freund had wintered, as usual, in Barbados. According to Mr. Verdun, Ms. Freund needs to spend the winter in Barbados. The Canadian winters are too difficult for her health. She needs to swim in the sea to soothe her back. Additionally, Mr. Verdun also has some business in Barbados. He indicated that he hoped to be able to participate in hotel development. He said that it was his only hope for paying off his debts.

[9] Mr. Radnoff, for the Plaintiff, argues that Mr. Verdun should be required to serve another three-month conditional sentence. He says that Mr. Verdun should do it all again. He argues that Mr. Verdun has learned nothing. He takes strong issue with Mr. Verdun’s request to commence serving his sentence after he winters in Barbados. Mr. Radnoff’s client is Mr. Verdun’s largest creditor. He has no hope of ever recovering any of what is owed. He says it is unrealistic to expect that Mr. Verdun’s business affairs will ever generate enough money to cover his debts.

(b) What are the aggravating and mitigating factors?

[10] This is the second time that I have found Mr. Verdun in contempt of court. That is obviously the most important aggravating factor. The manner in which the contempt was committed is also an aggravating factor. Mr. Verdun took no steps to mitigate the risk that he would be out of the Province of Ontario when his appeal was heard. When his lawyer obtained a stay of the Court of Appeal’s order for five days, he took no meaningful steps to return to Canada. Indeed, two weeks passed after the stay expired. Mr. Verdun’s cavalier attitude demonstrated a wilful disregard towards of his obligations to the Court. Mr. Verdun’s decision to remain in Europe and finish his vacation shows that he simply does not treat court orders seriously, despite his protestations to the contrary.

[11] I am sorely pressed to find any mitigating factors on this occasion. Certainly, I did not find Mr. Verdun’s attempt to apologize to be a mitigating factor. Unlike his apology on the last occasion, this attempted apology was a self-serving attempt to justify his behaviour. I have used the term “attempted apology” because it was not an actual apology to the Court. His attempted apology on this occasion leads me to strongly suspect that his last attempt at an apology, fulsome though it appeared, was insincere.

[12] Mr. Verdun’s non-apology to the Court is not, obviously, an aggravating factor. That said, it is also not a mitigating factor. I treat it as neutral. He said that his apology purged the contempt. It did no such thing. The contempt was not capable of being purged.

[13] The mitigating factor that was present on the last occasion – the lack of personal or financial gain – is also not present on this occasion. Mr. Verdun’s contempt on this occasion involved deciding to continue his vacation in Europe rather than comply with a court order.

[14] I recognize that Mr. Verdun’s position is that he needed to stay in Europe to assist Ms. Freund. I do not find that persuasive. As Mr. Radnoff correctly points out, there has never been a word of sworn evidence from Ms. Freund herself in this proceeding. All of our information about Ms. Freund’s health comes from Mr. Verdun, either by way of sworn evidence or by way of submissions made in court. Mr. Verdun’s assertion that Ms. Freund requires his assistance is based solely on Mr. Verdun’s evidence alone.

[15] At this point Mr. Verdun’s credibility is in tatters. He has none. I am willing to accept that Ms. Freund’s health is poor and that she has scoliosis. I am willing to accept that Mr. Verdun assists her.

[16] I am not willing to go further. Mr. Verdun and Ms. Freund enjoyed a European holiday that involved long transatlantic flights, significant amounts of driving, and visiting the South of France for “therapeutic swimming”. The holiday also involved a five-day visit to London for a one-hour visit to an osteopath and a visit to Barcelona without any apparent therapeutic reasons – except, as I pointed out earlier, perhaps to enjoy the beauty and culture of those wonderful cities.

[17] There is nothing wrong with a nice European holiday and no need to apologize for taking one. In the absence of evidence other than that coming from Mr. Verdun himself, however, I simply do not accept that Ms. Freund is helpless without him. Accordingly, unlike on the last occasion, I give no weight whatsoever to Ms. Freund’s health issues as a mitigating factor.

[18] Last time I sentenced Mr. Verdun I accepted that he had health problems, as there was some sworn evidence to that effect. I still accept that he has health problems, which is of some mitigation.

(c) What is the appropriate sentence?

There is no doubt that Mr. Verdun’s contempt merits a significantly harsher penalty than the one imposed on the last occasion. I found it particularly striking that Mr. Verdun found the original period of house arrest to be, in his words, no hardship. Obviously a three-month period of house arrest provides no specific deterrence at all to Mr. Verdun. I disagree with Mr. Radnoff that another three-month conditional sentence is required to achieve the principles of specific deterrence, denunciation, and general deterrence. It is obvious to me that three months of house arrest is simply inadequate to drive home the message.

[19] The principles of denunciation, deterrence, and rehabilitation play the key roles in sentencing. General deterrence is the most important factor. Court orders must be obeyed if respect for the rule of law is to be maintained: Sussex Group Ltd. v. Sylvester at para. 80.

[20] In this case, specific deterrence is more important than the other sentencing principles. Mr. Verdun has consistently displayed a wilful disrespect for court orders. A seven-month conditional sentence is the minimum penalty and that is the period of house arrest that I will impose. As well, an extra six-month period of probation will be added to the 18 months that I imposed on the last occasion. He will now serve 24 months probation upon the completion of his conditional sentence, with credit for the short amount of probation that he has already served. As well, I will add a condition that Mr. Verdun is not to leave the Province of Ontario during the first 9 months of the period of probation. During the remainder of the period of probation Mr. Verdun will be permitted to leave the Province of Ontario with the prior written consent of his probation officer. Mr. Verdun’s passport will remain in the custody of the Court until he has completed his seven month conditional sentence and the first 9 months of his period of probation.

[21] At this point, I still see no need to impose a jail sentence. I am hopeful that the sentence this time will bring home to Mr. Verdun that court orders are not optional. Let me be very clear, however, that if Mr. Verdun wilfully breaches this new conditional sentence he will almost certainly find himself serving the remainder in custody. Mr. Verdun should also understand that a fresh contempt will also almost certainly generate a period of custody.

[22] I will not accede to Mr. Verdun’s request that he be permitted to commence his sentence after wintering in Barbados. In addition to demonstrating breathtaking gall, the request shows that he has no insight into his behaviour. The first sentence obviously did nothing at all to bring home to him that he cannot treat court orders in a cavalier manner.

[23] I also wish to be clear that this sentence is not being imposed on Mr. Verdun as punishment or retaliation for any criticism he has made of the courts, judges, or any specific judges. Mr. Verdun retains exactly the same free speech rights that every other Canadian enjoys, except where the specific conditions of Madam Justice Chapnik’s order apply. Criticism of our democratic institutions is part and parcel of our democracy. Courts are not above criticism and judges are not so fragile that they can’t take it. But Mr. Verdun should not confuse the exercise of legitimate, lawful free-speech rights with wilful non-compliance with a Court order.

DISPOSITION

[24] Mr. Verdun will serve a further seven months conditional sentence, to commence immediately. The other terms and conditions will be the same that I imposed on the first conditional sentence. The original period of 18 months probation is suspended, to resume upon the completion of the conditional sentence. A further 6 months probation will be imposed, so that there will be a new blended period of probation of 24 months. Mr. Verdun will receive credit for the short period of probation that he has already served. His probation officer will determine the period of credit. The other terms and conditions will also be the same that I imposed on the first period of probation, with the following amendments:

• Mr. Verdun will be required to complete 300 hours of community service to the approval and satisfaction of his probation officer;

• Mr. Verdun must remain within the Province of Ontario for the first nine months of the period of probation;

• Mr. Verdun is not to leave the Province of Ontario thereafter except with the written consent of his probation officer;

• Mr. Verdun will receive credit for whatever short period of probation that he has already served. His probation officer will, in his or her absolute discretion, determine that period;

• Mr. Verdun’s passport will remain in the custody of the Court until the completion of his conditional sentence order and the first nine months of his blended period of probation.

[25] For greater certainty, the terms and conditions of my sentencing order of October 22, 2013 are referenced at Tab C of the Plaintiff’s Motion Record and apply as I have stated, with such modifications as required.

Robert F. Goldstein, J.

Date: December 9, 2014