COURT FILE NO.: CV-17-1539-00
DATE: 2022 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Henry Poulie, Richard Galas, Bernard McEvoy, Tolin Enterprises Ltd., Tony Gargaro, Lina Gargaro, Connie Annetta and Dan Miller
H. Mackenzie, for the Plaintiffs
Plaintiffs
- and -
Kevin J. Johnston
I. McCuaig, for the Defendant
Defendant
HEARD: June 21, 2022
REASONS FOR JUDGMENT
LEMAY J
[1] The personal Plaintiffs in this case are all owners of residential properties and/or cottages on the same beach in Tiny Township. The Corporate Plaintiff is a company owned by one of the personal Plaintiffs. The Defendant, Mr. Kevin J. Johnston, holds himself out as a journalist and broadcasts his views and reports on various websites. I understand that he has been a candidate for Mayor in both Mississauga and Calgary.
[2] The interactions between the Plaintiffs and Mr. Johnston began on a beach in Tiny Township. Part of this beach is an area that the Plaintiffs assert is private property. Mr. Johnston asserted that this property is public property. As a result of the altercation between the parties, Mr. Johnston was criminally charged. He subsequently entered into a peace bond.
[3] That peace bond was not the end of the matter. Mr. Johnston began a campaign vilifying the various personal Plaintiffs. This action, a defamation action, was brought against Mr. Johnston and he was noted in default. Around the same time, Mr. Johnston brought an action against some of the Plaintiffs (as well as a significant number of other individuals) relating to the beach and the events that had taken place on the beach in the summer of 2015. Mr. Johnston’s action was dismissed by Ricchetti J. (as he then was) in the summer of 2017 (see 2017 ONSC 4310).
[4] Since the summer of 2017, the Plaintiffs in this action have been attempting to have Mr. Johnston comply with the findings in the defamation action. Various Court orders have been issued requiring Mr. Johnston’s compliance and requiring Mr. Johnston to take various steps.
[5] In June of 2018, a motion was brought before me to find Mr. Johnston in contempt of the Orders that were made against him. After numerous days of hearing spread over more than a year, I found the Defendant, Mr. Johnston, to be in contempt of Court for violating orders made by Shaw J., Price J. and Seppi J. That decision was released on September 19th, 2019 (see 2019 ONSC 5425). The parties have since made submissions on sentencing and my reasons for sentence follow.
[6] I should note that the actual sentence was imposed in Court on Monday. A synopsis of my reasons was given to the parties. However, the reasons that follow govern.
Background
a) The History of the Litigation
[7] The conflict between the parties began in 2015 with events on the beach in Tiny Township. Everything flows from those events, which have been described in detail in other decisions, particularly my September 2019 decision finding Mr. Johnston in contempt. I will review some of the key points that are necessary to understand my disposition of the sentencing decision.
[8] On December 21st, 2016, Mr. Johnston brought an action against approximately fifty (50) defendants, almost all of whom were personal defendants. Some of the Defendants in the action that Mr. Johnston started are Plaintiffs in this case. No cause of action was actually pleaded by Mr. Johnston, although the claim itself reviewed some of the events that Mr. Johnston claimed he saw on the beach. Mr. Johnston sought damages in the sum of $500,000.00.
[9] A Rule 21 motion was brought by the Defendants and granted by Ricchetti J. Mr. Johnston was denied leave to amend his claim. After releasing his reasons, Ricchetti J. issued a costs endorsement which states, in part:
Mr. Johnston engaged in a public campaign of humiliation and intimidation against a number of the personal defendants before and after the motion.
It is one thing to commence litigation to deal with factual and legal issues. However, where the Plaintiff engaged in such conduct to support his claim and used such conduct for his media organization, such conduct is deserving of sanction by this court. A punitive award is warranted in these circumstances for this outrageous conduct (not only before the claim, before the motion ubt also after the motion hd been dealt with by the Court).
Substantial indemnity costs are awarded in favour of the Defendant.
[10] Two important points flow from this endorsement. First, as far back as 2017, Mr. Johnston was engaged in a campaign in which he was vilifying the Plaintiffs and misusing the Court system to advance his positions. Second, this costs order has never been paid. There is no prospect that it ever will be paid.
[11] In February of 2017, the Plaintiffs sent Mr. Johnston a letter telling him that certain postings he had placed on-line were defamatory and needed to be removed. No satisfactory response was received from Mr. Johnston or his representative. Therefore, the Plaintiffs began this action by way of a Statement of Claim on April 20th, 2017. No Statement of Defence was ever served by Mr. Johnston and he was noted in default. No motion was ever brought to set the noting in default aside.
[12] The Plaintiffs then sought a series of Orders from the Superior Court to restrain Mr. Johnston’s defamatory comments about them. These Orders were all breached by Mr. Johnston. I now turn to those Orders.
b) The Orders Breached by Mr. Johnston
[13] There were three Orders that Mr. Johnston regularly breached between the summer of 2017 and the summer of 2018. Those Orders were as follows:
a) The Order of Shaw J. dated August 3rd, 2017, which was an interim Order.
b) The Order of Price J. dated November 30th, 2017. This Order flowed from a motion brought by the Plaintiffs to enforce the Order of Shaw J. and was consented to by Mr. Johnston.
c) The Order of Seppi J. dated April 25th, 2018.
[14] All of these Orders had some of the same key provisions, as follows:
a) Mr. Johnston was required to remove all defamatory broadcasts including videos, articles and other content from everywhere.
b) The removal Order applied to any broadcast that addressed an issue involved in the Plaintiffs’ action against Mr. Johnston.
c) Mr. Johnston was prohibited from broadcasting further defamatory materials about the Plaintiffs or about any issue involved in this action.
[15] In addition, there are a couple of provisions from specific Orders that are relevant to my sentencing determination, as follows:
a) Price J.’s Order provided a specific and detailed list of all of the websites where defamatory content had been posted and/or was still found. This is particularly important given Mr. Johnston’s failure to remove postings without direct intervention from Mr. Mackenzie, counsel for the Plaintiffs.
b) Seppi J.’s Order was a permanent and mandatory Order.
[16] There was no real dispute that all of these Orders were served on Mr. Johnston.
c) The Proceedings Before Me
[17] As noted in my decision of September 19th, 2019, this matter came before me in June of 2018. There was a lengthy procedural history that is described in my reasons and that I do not need to repeat here. It is, however, worth noting that Mr. Johnston failed to appear before me on at least one occasion. I was required to issue a bench warrant (with discretion) to compel Mr. Johnston’s attendance. It is beyond any doubt that at least part of the delay in the contempt proceeding before me was deliberately caused by Mr. Johnston.
[18] When I delivered my reasons for finding Mr. Johnston in contempt on September 19th, 2019, a further date was scheduled to timetable the contempt issues. Given that the Plaintiffs were seeking a period of incarceration for Mr. Johnston, I determined that an adjournment for him to obtain legal aid was necessary.
[19] There was an appearance on January 13th, 2020. At that time, Mr. Johnston advised that he had been successful in obtaining a legal aid lawyer to assist him in the penalty phase of the contempt hearing. A further hearing for timetabling purposes was scheduled for February 12th, 2020.
[20] At that time, Mr. Johnston was in custody and appeared without the lawyer that he had allegedly retained. However, the matter had been marked peremptory to Mr. Johnston. Therefore, a full day hearing for the sentencing issues was booked for April 16th, 2020, again peremptory to Mr. Johnston. That date was vacated as a result of the COVID-19 Pandemic. Mr. Mackenzie’s office contacted my judicial assistant in December of 2020 to confirm a new date for the contempt hearing.
[21] By way of an endorsement dated December 20th, 2020, I set both a timetable for the exchange of materials in this matter and a full-day hearing for February 4th, 2021. On February 4th, 2021, Mr. Johnston advised that he had not received the materials that Mr. Mackenzie, counsel for the Plaintiffs, had attempted to serve on him. After providing the parties with an opportunity to make submissions on whether Mr. Johnston had been served, I determined that Mr. Johnston had been deliberately evading service and I validated service. I was not left in any reasonable doubt that Mr. Johnston was evading service.
[22] At the hearing on February 4th, 2021, Mr. Johnston was not present. Instead, he sent Mr. McCuaig. At that point, Mr. McCuaig had not been retained by Mr. Johnston but it was proposed that he would be as an application had been made to Legal Aid Ontario (“LAO”) in order to fund Mr. Johnston’s defence of this and at least one other contempt proceeding that Mr Johnston was defending.
[23] I set an appearance approximately a month later, on March 10th, 2021. At that time, counsel for the Plaintiffs did not attend due to a misunderstanding over the date. However, I was advised by Mr. McCuaig that the Legal Aid matter was progressing. I set another date of April 7th, 2021 for an update and advised the parties that I expected any application that was being brought by Mr. Johnston to proceed promptly.
[24] On April 7th, 2021, I was advised that LAO had not yet made a decision on whether it would fund Mr. Johnston’s counsel. At that point, I released a further endorsement setting a date of May 3rd, 2021 and directing that, if LAO had not yet made a decision, that they were to send appropriately briefed counsel to advise why a decision had not yet been made.
[25] On May 3rd, 2021, I was advised that LAO had denied Mr. Johnston’s appeal at the second level and that it was now with the Office of the President. I was advised that those appeals take a couple of weeks. As a result, I set a further appearance of May 25th, 2021 and advised the parties that I expected that Mr. McCuaig would already have served his Rowbotham application. I also asked that counsel from Crown Law Civil attend this appearance.
[26] At the May 25th, 2021 appearance, I was advised that LAO had asked Mr. Johnston for more information. As a result, a decision had not been made. I then directed that the matter return on June 21st, 2021. I directed that, if LAO had not made a final decision, then the General Counsel or President was to attend and commit to a date when a decision would be made. I also directed that counsel from Crown Law Civil attend to discuss the scheduling of the proposed Rowbotham application.
[27] On June 21st, 2021, I was advised that LAO had denied Mr. Johnston’s request for funding. Although Mr. Johnston had been detained in Calgary, Mr. McCuaig committed to a timetable for the Rowbotham application. Counsel from Crown Law Civil also attended and agreed to the timetable. A date to hear the Rowbotham application was set for 10:00 a.m. on September 27th, 2021.
[28] Ultimately, no materials were filed for the Rowbotham application. The contempt hearing was scheduled to be heard on its merits on January 10th, 2022. A few days prior to that hearing, Mr. Johnston was arrested while attempting to cross the U.S. Border. As a result, Mr. McCuaig asked that the matter be adjourned. Mr. Mackenzie, on behalf of the Plaintiffs, did not take significant issue with that request. As a result, an adjournment was granted.
[29] The sentencing hearing was set for May 9th, 2022 for a half-day. The Plaintiffs’ materials had already been filed. A timetable for Mr. Johnston to file materials was set, and the parties advised me that it was unlikely that there would be viva voce evidence.
[30] Shortly before the May 9th, 2022 appearance, Mr. McCuaig wrote to my judicial assistant to advise that there might be a conflicts issue. Specifically, at points during the contempt hearing, Mr. Johnston had been assisted by Mr. Edward Wallerstein, a paralegal. However, Mr. Wallerstein had also been involved in proceedings with the Law Society and had been represented by Mr. Mackenzie, counsel for the Plaintiffs’ in at least part of that proceeding. The May 9th, 2022 hearing was adjourned so that counsel could consider their positions.
[31] Ultimately, Mr. McCuaig was instructed not to proceed with any applications in respect of Mr. Mackenzie’s representation of Mr. Wallerstein. The sentencing hearing proceeded on June 21st, 2022. At that time, the parties provided me with factual and legal submissions. No additional evidence was tendered although Mr. Mackenzie did make reference to statements on the impact that Mr. Johnston’s continuing contempt had had on his clients. I view those statements as akin to victim impact statements.
Positions of the Parties
[32] The Plaintiffs argue that Mr. Johnston engaged in a deliberate and lengthy campaign to vilify the Plaintiffs. This campaign had a significant impact on the well-being of the Plaintiffs and continued in spite of Court orders that Mr. Johnston cease and desist. Further, Mr. Johnston agreed to be bound by an order that required him to proactively remove various posts from the internet but failed to comply with that Order. Finally, Mr. Johnston has failed to pay any of the costs orders that have been made against him. Given all of this conduct, the Plaintiffs argue that Mr. Johnston should be incarcerated for a period of sixteen (16) months.
[33] Counsel for Mr. Johnston acknowledges that he has breached Court orders and does not seriously challenge the argument that the Court should impose some sort of penalty given the facts of this case. However, counsel for Mr. Johnston argues that Mr. Johnston’s contempt has ultimately been purged (although very late) and that, therefore, a conditional sentence and a period of community service should be ordered. In support of this position, counsel points to a distinction in the sentencing cases between contemnors who have interfered with the functioning of the Court (e.g. Cornwall Public Inquiry v. Dunlop, (2008) 2008 10382 (ON SCDC), 90 O.R. (3d) 524) and cases where the contemnor sees the Court process out but doesn’t like the outcome and doesn’t follow it. Counsel argues that Mr. Johnston fits into the latter category and is at the lower end of contemnors.
[34] In reply, counsel for the Plaintiffs argues that Mr. Johnston is not someone who is doing the right thing, although belatedly. Instead, counsel argues that Mr. Johnston has not taken proper steps to purge his contempt and has deliberately injured the Plaintiffs. Counsel also argues that Mr. Johnston’s conduct does not put him on the lower end of the cases that I have been provided with.
Analysis and Decision
a) What Is the Extent of Mr. Johnston’s Contempt?
[35] At this point, everyone acknowledges that the defamatory statements and publications have been taken down. From this fact, it can be inferred that Mr. Johnston has purged his contempt. However, the events leading to the removal of the publications must be remembered.
[36] First, during the time when the Orders were in effect, including the consent Order of Price J., Mr. Johnston continued to publish defamatory statements about the Plaintiffs. A sampling of these additional defamatory statements is detailed at paragraphs 57 to 70 of my September 19th, 2019 decision. I do not intend to review those items in detail again. I will simply sketch out some of the key points for the purposes of sentencing.
[37] The Order of Price J., which was issued on consent, was only necessary because Mr. Johnston had continued to breach the original order of Shaw J. After the Order of Price J. was made, Mr. Johnston made some limited efforts to remove some of the defamatory posts. However, an additional posting was made by Mr. Johnston in February of 2018. This posting was not removed in spite of efforts by the Plaintiffs to have Mr. Johnston remove it.
[38] The matter returned before Seppi J. in late April of 2018. At that hearing, a permanent Order was granted. However, Mr. Johnston continued to post defamatory statements even after the Order of Seppi J. was made. These defamatory statements (as detailed at paragraphs 64, 65 and 70 of my September 19th, 2019 decision) were focused more on Ms. Annetta than any of the other Plaintiffs. They were also quite defamatory.
[39] In addition, in a May 28th, 2019 e-mail to Mr. Mackenzie, Mr. Johnston made a number of concerning statements. When that e-mail is read as a whole, it suggests that Mr. Johnston was continuing his campaign of vilification long after he had been ordered to cease and desist.
[40] Even after Mr. Johnston stopped publishing defamatory statements about the Plaintiffs, he did not comply with the Orders that had been made. Those Orders required Mr. Johnston to proactively remove all of the subject videos from various platforms. The Order of Price J. even provided a list of their locations. Mr. Johnston, however, took the position that he would remove videos when they were identified for him by Mr. Mackenzie. As I found in my September 19th, 2019 decision (at para 101), Mr. Johnston deliberately ignored the direction that he remove and/or cause to be removed the defamatory postings. He remained in contempt for more than two years after the Orders of Shaw J. were made. It was only earlier this year that the last posting was removed from the internet.
[41] In considering the extent of Mr. Johnston’s contempt, I should also note that I provided him with his right of allocution. I believe it was provided both at the sentencing hearing in June and before I imposed sentence earlier this week. Mr. Johnston stated that he had no interest in Mr. Mackenzie or his clients and that they would not be hearing from him anymore. However, Mr. Johnston did not apologize or acknowledge, in any meaningful way, that he had violated Court orders.
[42] With this background in mind, I now turn to the question of what the appropriate sentence for contempt is in this case.
b) What Legal Principles Apply to a Sentence for Contempt?
[43] In fixing a sentence for contempt, I start with the fact that Rule 60.11(5) of the Rules of Civil Procedure provides that, in disposing of the contempt motion, “the judge may make such order as is just”. The Rule goes on to enumerate a number of sanctions that the Court may impose.
[44] While there are theoretically a wide range of sentences that the Court may impose, practically the list is far smaller. The Court can impose no penalty, a suspended sentence, a conditional sentence or a period of incarceration. See Niagara Regional Police Services Board v. Curran, (2002) 2002 49405 (ON SC), 57 O.R. (3d) 631 (Ont. S.C.J.) at para 20.
[45] In imposing a sentence for contempt, it is important to remember that the rule of law is central to a consideration of contempt of Court. As McLachlin J. (as she then was) noted in United Nurses of Alberta v. Alberta (Attorney General), 1992 99 [1992] 1 S.C.R. 901:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[46] It is also important to remember the distinction between criminal contempt and civil contempt. In a case of criminal contempt, the penalty is designed to punish, while the penalty in a civil contempt case is coercive and or persuasive. It is designed to enforce the rights of a party. Mercedes-Benz Financial v. Kovacevic, 2009 9423 (ON SC), [2009] O.J. No. 888 at para. 7 and Frontenac Ventures v. Ardoch Algonquin First Nation, (2008) 2008 ONCA 534, 91 O.R. (3d) 1 (C.A.) at para. 37.
[47] Sentencing for contempt of court is done using many of the same principles that apply in regular criminal cases. Indeed, even in cases of civil contempt of court, the sentencing principles in section 718 of the Criminal Code apply. Chiang (Trustee of) v. Chiang, (2007) 2007 82789 (ON SC), 85 O.R. (3d) 425 at para. 23.
[48] One of the key principles that should be applied in a sentence, even for civil contempt, is deterrence. As Lax J. noted in Chiang (at para. 25):
[25] The primary purpose of sentencing in contempt proceedings is deterrence. It should serve as a disincentive to those who might contemplate the breach of court orders. The courts do not have an army to enforce their orders. If large numbers of litigants were to disobey court orders, the court system would soon break down. Courts expect parties to voluntarily comply with its orders and in the vast majority of cases, they do. This may explain why contempt cases are somewhat rare and incarceration for civil contempt is even rarer. There would appear to be only a handful of reported cases in the commercial law context where custodial sentences have been imposed. I will return to these later in considering the appropriate sentence. I turn now to the sentencing factors to be considered as they apply to the Chiangs' conduct.
[49] A number of cases have discussed the factors that the Court should consider when imposing a sentence for civil contempt. Three of the most relevant are Estate of Paul Penna, 2010 ONSC 6993, Duncan v. Buckles, 2021 ONSC 5567 and Astley v. Verdun, 2013 ONSC 6734.
[50] In Duncan, Goldstein J. sets out a series of principles that apply in sentencing for contempt cases as follows (at 44):
[44] The whole point of punishing a contemnor is to maintain the rule of law: United Nurses of Alberta v. Alberta, 1992 99 (SCC), 1992 1 S.C.R. 901 at p. 931. As Justice Watt put it in College of Optometrists of Ontario v. SHS Optical, 2008 ONCA 685 at para. 106: “The underlying purpose of contempt orders is to compel obedience and punish disobedience.” In Astley v. Verdun, 2013 ONSC 6734 (affirmed 2014 ONCA 668) at para. 16 I attempted to summarize the principles of sentencing in contempt cases:
• 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 (Ont. S.C.J.) 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 Ltd. v. Fangeat, [2003] O.J. No. 3348, 42 C.P.C. (5th) 274 (Ont. S.C.J.) 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 Ltd. 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 Ltd. v. Sylvester, 2002 27188 (ON SC), [2002] O.J. No. 4350, 62 O.R. (3d) 123 (Ont. S.C.J. [Commercial List]) at paras. 80-82.
[51] In applying these principles, the Court must also be mindful of the mitigating and aggravating factors in each individual case. At this point, I now turn to the application of the principles to this case.
c) What is the Appropriate Sentence for Mr. Johnston?
[52] In this case, the following are aggravating factors:
a) The length of the contempt. It was ongoing for years before it was finally ended.
b) The deliberate ignoring of Court orders, especially after the consent Order of Price J.
c) The nature of the statements that were made. For example, referring to a teacher as a child molester who screamed at children is a very serious and damaging allegation.
d) The fact that there was intimidation used against some of the Plaintiffs in some of Mr. Johnston’s encounters with them.
e) Mr. Johnston’s attempts to avoid Court processes.
[53] The type of factors that could be mitigating factors are such things as personal circumstances, character, current lifestyle, promises to change behavior and the effect of imprisonment on the contemnor’s family. See Law Society of Alberta v. Beaver, 2021 ABCA 163 at para. 85. In this case, virtually none of those mitigating factors are present. Indeed, the only mitigating factor I see in this case is the fact that the contempt is now purged.
[54] Given the scope and duration of Mr. Johnston’s contempt, as set above, his counsel did not seriously argue that I should not impose some sort of sanction on Mr. Johnston for his conduct. The question becomes what should the sanction be?
[55] I start with a fine or other monetary penalty. As I have noted above, the costs award made by Ricchetti J. has not been paid in nearly five years. I do not see any prospect of it being paid. In addition, Mr. Johnston has been embroiled in litigation with Paramount Fine Foods. As a result of that litigation, Mr. Johnston was ordered to pay $2.5 million in damages (see 2019 ONSC 2910) and costs in the sum of $226,816.50 (see 2021 ONSC 8065). I have no evidence to suggest that these amounts have either been paid or will ever be paid. Although I will be making a further costs order in this matter, I see no prospect that it will be paid either.
[56] As a result, ordering Mr. Johnston to pay a fine would be ordering him to do something that he is not going to be able to do. It is a penalty that will have no practical effect on him. In other words, a fine would be pointless. The only options available in this case are a conditional sentence, a suspended sentence or some period of incarceration. Counsel for Mr. Johnston seeks a conditional sentence. Counsel for the Plaintiffs seeks a period of incarceration.
[57] The fact that Mr. Johnston has purged his contempt could be grounds for not imposing any sentence at all on Mr. Johnston, but (as discussed in the next paragraph) that is not a realistic option in this case. It could also be grounds for imposing the type of conditional sentence and community service that counsel for Mr. Johnston seeks. I certainly have the jurisdiction to impose such a sentence on Mr. Johnston. See Curran, supra and Airst v. Airst [2000] O.J. No. 2461 (Ont. S.C.J.) at paras. 16 to 18.
[58] However, in both this decision and in my decision released September 19th, 2019, I have set out the history of Mr. Johnston’s conduct both before and after the Orders were made. That history illustrates the following points:
a) Even after the contempt Orders were made, Mr. Johnston continued to deliberately flout the Orders by continuing to make defamatory statements about the Plaintiffs.
b) Mr. Johnston demonstrated a history of deliberately delaying this proceeding in order to avoid the consequences of his contempt.
c) Mr. Johnston has, on numerous occasions, avoided or minimized his responsibility for the breach of Court orders. He has done this, in part, by refusing to attend at Court proceedings.
d) While the contempt has ultimately been purged, it required a years-long proceeding to obtain Mr. Johnston’s compliance.
[59] When this history is reviewed, it demonstrates a continuing and deliberate attempt to flout the authority of the Court. The purpose of a contempt proceeding is, as set out at paragraph 45, to uphold the authority of the Court and punish the contemnor. Given this history and the purpose of a contempt hearing, it is clear that a meaningful sanction must be imposed on Mr. Johnston.
[60] As Blair J. (as he then was) put it in Surgeoner v. Surgeoner, [1992] O.J. No. 219, (1992) 6 C.P.C. (3d) 318:
No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its law and its courts' orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice.
[61] Permitting Mr. Johnston to escape this proceeding with a conditional sentence or community service would be supporting his efforts to minimize his responsibilities in this case. Given that Mr. Johnston has engaged in a continuing and deliberate attempt to flout the authority of the Court, there must be meaningful consequences.
[62] The only penalty that will make it clear to Mr. Johnston that there are consequences to his conduct is a period of incarceration. As I have set out above, there are significant aggravating factors in this case and there are very few, if any, mitigating factors in this case. Indeed, the only significant mitigating factor is the fact that the contempt is now purged.
[63] This brings me to a review of the sentences in similar cases. Counsel for Mr. Johnston points to the decision in Cornwall Public Inquiry v. Dunlop, supra as an example of a case where the contemnor’s conduct was that of someone who was interfering with the functions of the Court. When Dunlop is considered in its entirety, it is clear that it is actually a case of criminal contempt. In those circumstances, Mr. Dunlop was sentenced to a period of incarceration of six months.
[64] Counsel argues that Mr. Johnston’s conduct is substantially less serious. He suggests that Mr. Johnston is in the category of people who see the Court process out but do not like or follow the decision. In that respect, he argues that Mr. Johnston is closer in terms of the seriousness of his conduct to the case in Astley v. Verdun, supra.
[65] In Verdun, Goldstein J. was faced with a contemnor who had continued to make defamatory statements even after an injunction had been granted at trial. Through the contempt process, the contemnor (Mr. Verdun) apologized to the Court and Goldstein J. concluded that Mr. Verdun needed rehabilitation to understand that he was “not a prisoner of conscience engaged in legitimate civil disobedience” (para. 37) but was, instead, a person who had undermined the rule of law. In short, a corrective sanction would be sufficient in Mr. Verdun’s case.
[66] Goldstein J. also observed (at para. 36) that:
[36] The circumstances that will warrant a jail sentence will depend on the facts of any given case, but I think it obvious that the more wilful, flagrant, ongoing and damaging the contempt the more likely it is that a jail sentence will be imposed. In other words, proportionality continues to be an important principle.
[67] In this case, as I have noted the conduct has been quite flagrant. It required three trips to Court to get Mr. Johnston to stop publishing the defamatory comments and it required further trips to Court in order to get him to comply with the other parts of the Order. In addition, Mr. Johnston has not offered any apology or explanation for his conduct. In other words, when the principles of deterrence and proportionality are considered, this case is nearer the top end of the breaches of Court orders rather than the bottom end.
[68] A period of incarceration for civil contempt is a sanction of last resort and is rarely used, especially when the contempt has been purged by the time the sentence has been imposed. However, in the circumstances of this case, I see no other choice. Mr. Johnston has led the Plaintiffs through the Court process for years. He has flagrantly and deliberately breached Court orders and it took a great deal of time, effort and Court resources to bring Mr. Johnston into compliance.
[69] If Mr. Johnston were to escape without a period of incarceration, then the Court would be sending other potential parties the message that they could flout Court orders, delay matters and misuse the Court’s processes while avoiding any real sanction by making sure that they stopped their conduct before a sentence was imposed. That type of outcome would make it more likely that people would think that they could disobey Court orders. In other words, both specific and general deterrence are important factors in this case. Further, the sentence in this case must fit what Mr. Johnston has done and act as a deterrent to others who might be tempted to do the same things that he has done.
[70] I was provided with a series of cases by both counsel. In particular, counsel for the Plaintiffs included a detailed chart of the sentences imposed in various cases. Those cases cover a significant range of facts and penalties. I have reviewed all of those cases in reaching my decision. However, two stand out as illustrating where the sentence in this case should land.
[71] First, there is Sussex Group v. Sylvester (2002) 2002 27188 (ON SC), 62 O.R. (3d) 123 (S.C.J.). In that case, the Defendant was the Director of a business which had gotten into difficulties. He was ordered to cooperate with the interim manager but refused to provide business records over several months in spite of a number of Court orders to comply. Mr. Sylvester was found in contempt. A sentence of six months was imposed on Mr. Sylvester.
[72] Second, there is GM Textiles v. Sidhu 2016 ONSC 2055. The underlying facts involved a franchise business. The Defendant ran the franchises, while the Plaintiffs were investors. A settlement of outstanding issues was reached in 2012, and a series of Court orders flowed from that settlement. There was ongoing contempt of various orders on the part of Mr. Sidhu for a period of a number of years. Ultimately, the enforcement of the Orders became moot because the businesses lost all of their value. The Plaintiff was sentenced to a total global sentence of approximately eighteen months, which was varied down to 12 months with some compliance (see 2017 ONSC 5813 and 2017 ONCA 969).
[73] Both cases involve contempt that is more serious than that of Mr. Johnston. However, both cases demonstrate that in the rare case where there is a continuous and flagrant breach of Court Orders, a period of incarceration may be ordered. In some cases such as Sidhu, that period may be quite lengthy.
[74] The penalty imposed on Mr. Johnston must be serious enough to serve the purposes of deterrence but not so serious that it is disproportionate to what he has done. For these reasons, I have determined that a period of incarceration of four months is appropriate for Mr. Johnston.
Conclusion
[75] For the foregoing reasons, I am sentencing Mr. Johnston to a period of incarceration of four months.
[76] Section 6(1) of the Prisons and Reformatories Act, R.S.C. 1985, c. P-20 as incorporated into section 28 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M-22 apply to the sentence that I have imposed. In other words, there is to be no remission of Mr. Johnston’s sentence. He is to serve the full four months.
[77] I understand that Mr. Johnston was serving a jail sentence in Alberta. I also understand that Mr. Johnston has a sentence to serve in Ontario as a result of the decision of Myers J. in Paramount, supra. The sentence I have imposed is to be served immediately after the sentence imposed in Paramount. There is to be no break in between the two sentences and Mr. Johnston is to remain incarcerated at the end of the Paramount sentence.
[78] If Mr. Johnston has not surrendered himself to police or the Court to serve his sentence in the Paramount case in accordance with the directions of Myers J., then a warrant for Mr. Johnston’s arrest is to be issued. That warrant is to be specifically brought to the attention of the RCMP and the Canada Border Services Agency.
[79] A costs outline has already been filed by the Plaintiffs. If there are any additions to that outline, or the Plaintiffs wish to make any further submissions on costs, those are to be served and filed within ten (10) calendar days of today’s date. Those submissions are to be no more than five (5) double-spaced pages.
[80] Mr. Johnston shall have ten (10) calendar days from the delivery of the Plaintiff’s further submissions, if any, to serve and file his submissions on costs. Again, those submissions are to be no more than five (5) double-spaced pages. If the Plaintiffs do not deliver any additional submissions on costs, then Mr. Johnston’s submissions must be served and filed by October 2nd, 2022.
[81] There are no reply submissions without my leave. The deadlines for the delivery of costs submissions may not be extended, even on consent, without my leave.
LEMAY J
Released: September 14, 2022
COURT FILE NO.: CV-17-1539-00
DATE: 2022 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Henry Poulie, Richard Galas, Bernard McEvoy, Tolin Enterprises Ltd., Tony Gargaro, Lina Gargaro, Connie Annetta and Dan Miller
Plaintiffs
- and -
Kevin J. Johnston
Defendant
REASONS FOR JUDGMENT
LEMAY J
Released: September 14, 2022