COURT FILE NO.: CV-21-88228
DATE: 2022/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Esther Post
Plaintiff
– and –
Chelsea Hillier
Defendant
Andrea Baldy, for the Applicant
Douglas Treilhard, for the Defendant
HEARD: Submissions heard September 23, 2022, oral decision given October 24, 2022
REASONS FOR SENTENCE FOR CIVIL CONTEMPT
sOMJI J
[1] This decision addresses the sentence to be imposed on Chelsea Hillier for civil contempt for breach of a court order.
Facts
[2] In November 2021, Chelsea Hillier commenced a defamatory online campaign on Twitter against Esther Post, a professor at Carleton University, because she disagreed with Ms. Post’s political views on government polices and measures related to COVID. Ms. Post attempted, as a civil and reasonable person would, to have Ms. Hillier stop her disparaging and untruthful remarks. Ms. Hillier not only refused, but made clear she would continue to defame Ms. Post online until Ms. Post was economically depleted. Ms. Hillier tweeted to Ms. Post at that time: “You are poor. I cant [sic] wait for you to hire a lawyer and sink yourself doing so.”
[3] In order to protect both her personal and professional reputation, Ms. Post was left with little choice but to bring a defamation lawsuit against Ms. Hillier. As will be addressed in due course, this lawsuit resulted not only in a significant financial cost to Ms. Post as predicted by Ms. Hillier, but in tremendous mental and physical distress. If Ms. Hillier believed her online remarks about Ms. Post were true, she certainly never provided an explanation for why. Ms. Hillier neither filed materials in response to the defamation lawsuit nor did she attend the court hearing.
[4] On June 24, 2022, the Honourable Justice Gomery issued a default judgment against Ms. Hillier for defamation and ordered Ms. Hillier to one, remove any content about Ms. Post from her social media accounts; two, refrain permanently from communicating any further false or disparaging statements about Ms. Post; and three, post a retraction that her online statements regarding Ms. Post were false (“Order”): Post v Hillier, 2022 ONSC 3793 (“Hillier”). In addition, Justice Gomery ordered Ms. Hillier to pay to Ms. Post $84,000 in damages and $12,483 in costs none of which has yet been paid.
[5] The matter should have ended there. Sadly, it did not. On the same day the decision was released, Ms. Hillier doubled-down and tweeted ten defamatory comments about Ms. Post. Ms. Post’s lawyer, Ms. Baldy, put Ms. Hillier on notice that she had knowingly breached the Order and should she not comply, a contempt motion would be brought against her. Ms. Hillier did not comply and consequently, a motion for contempt was filed. On September 16, 2022, I found Ms. Hillier in contempt for breaching all three directives in Justice Gomery’s Order. The reasons for my decision are set out in Post v Hillier, 2022 ONSC 5253, and I will not repeat them here.
[6] Even the contempt order I issued did not appear to have been sufficient for Ms. Hillier to fully understand the seriousness of her misconduct, the damaging effect of defamation, and the need to comply with both the written terms and spirit of Justice Gomery’s Order which can be summarized in three words: stop the defamation. While to her credit Ms. Hillier did take steps to finalize the removal of the defamatory content from Twitter and post an online retraction in accordance with the terms of the Order, she did absolutely nothing to end a crowdfunding campaign launched by her online friend Shandi on GiveSendGo to support her (“campaign”). The campaign was entitled “Justice for Chelsea Hillier” with a half-page picture of Ms. Hillier below which were statements that undermined Justice Gomery’s Order, perpetuated the myth that what Ms. Hillier had said about Ms. Post was true, and falsely suggested Ms. Hillier’s representations were not addressed at the contempt proceedings. As explained below, I do not accept that Ms. Hillier was unaware of the campaign content or that she was powerless to do anything about it. As soon as her new lawyer Mr. Treilhard was alerted to the issue by opposing counsel, he instructed his client to take steps to have it taken down. Within an hour, the campaign was deleted and its content removed.
[7] After a year of mental distress for Ms. Post, two legal actions, approximately $38,000 in legal fees, five court hearings, and a finding of contempt, Ms. Hillier has finally ended, one hopes, her nasty and unjustifiable defamatory conduct against Ms. Post. On September 20, 2022, four days before the contempt sentencing hearing, Ms. Hillier removed the last of the defamatory tweets from Twitter and posted that her online statements about Ms. Post were false and defamatory. Ms. Hillier also apologized at the sentencing hearing to Ms. Post and this court and for her conduct.
Position of the Parties
[8] Ms. Baldy submitted that a wide range of sentencing options are available to sanction Ms. Hillier for contempt, including custody. Ms. Baldy argued that the aggravating factors in this case would warrant a custodial sentence, but left the determination of the form and quantum of sentence at the court’s discretion. Ms. Post seeks an order for her legal costs for the contempt proceedings.
[9] In her affidavit dated September 22, 2022, Ms. Hillier requested the clemency of the court with respect to the sentence imposed. Her counsel, Mr. Treilhard, argued that a custodial sentence would be unprecedented and that a fine is the standard punishment for civil contempt. Mr. Treilhard proposed a fine in the range of $1500 to $5000. He also stated that Ms. Hillier would be agreeable to a court order requiring her to stay off Twitter. Mr. Treilhard did not dispute that costs should be ordered.
Analysis
A. Legal Principles that apply to a sentence for contempt
[10] The effectiveness of the judicial system requires respect for court orders. When court orders are breached, it reflects a person’s disregard for the rule of law which both governs and protects individuals in our society. As succinctly stated by Justice Brown:
…When a person deliberately fails to obey a court order, he shows disregard for the obligations which he owes to others in his community, disrespect for his community’s system of justice which enforces those obligations, and disdain for the fundamental principle that all persons live in our community do so subject to the rule of law. By disobeying a court order, a person seeks to place himself above and beyond the law of his community. His disobedience also creates conditions of gross inequality, rewarding those who turn their backs on the law, while placing burdens on those who follow the law…Mercedez-Benz Financial v Ivica Kovacevic 2009 ONSC 9423 at para 5 (“Kovacevic”).
[11] The Superior Court of Justice has as a court of inherent jurisdiction broad common law powers to enforce and punish violations of court orders: R v Vermette, 1987 SCC 51, [1987] 1 S.C.R. 577 at para 13; Boily v Carleton Condominium Corp., 2014 ONCA 574 at para 89; Astley v Verdun, 2013 ONSC 6734 at para 14. A contemnor can be committed to jail or subject to any other sanction available for a criminal offence: Swing Inc. v Elta Golf Inc., 2006 SCC 52, 2006 2 S.C.R. 612 at para 35; Astley at para 40.
[12] The court’s power to sanction for civil contempt is also governed by R. 60.11(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which provides the Court with the following sentencing powers:
Content of Order
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property : R.R.O. 1990, Reg. 194, r. 60.11 (5).
[13] While Rule 60.11(5) lists some available sanctions, in determining the sentence to impose, the court is guided by the principles of sentencing in the criminal law which are set out in ss. 718, 718.1, and 718.2 of the Criminal Code; see also Astley at para 16; Kovacevic at para 11; Chiang (Trustee of) v Chiang, 2009 ONCA 3 at para 86. Those principles require a sentence:
- To be proportionate to the gravity of the offence and the degree of the responsibility of the offender;
- To be increased or decreased to account for aggravating or mitigating factors surrounding the contempt or the contemnor;
- To be similar to sentences imposed on similar contemnors, commonly referred to as the parity principle;
- to denounce unlawful conduct, commonly referred to as the principle of denunciation;
- to promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders, commonly referred to as the principles of specific and general deterrence;
- to assist in the rehabilitation of the contemnor;
- to provide reparation for harm done to victims to the community; and
- to be reasonable keeping in mind that all available sanctions other than imprisonment should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e); Astley at para 16; Boily at para 90; Chiang (Re) at para 86; Kovacevic at para. 12.
[14] While the principles of sentencing are similar, civil contempt differs from criminal contempt. For criminal contempt, the sentence is designed to punish the offender whereas with civil contempt, the court’s focus is on obtaining compliance so as to enforce the rights of a private party: Poulie v Johnston, 2022 ONSC 5186 at para 46. The distinction is not always clear because the breach of a court order made in the context of private litigation also reflects disrespect for the court’s authority: Chiang (Re) at paras 9-10; Duncan v Buckles, 2021 ONSC 5567 at para 43. Nonetheless, general and specific deterrence are emphasized as the paramount principles in sentencing for civil contempt: Cornwall (Public Inquiry) v Dunlop, 2008 ONSC 10382 at para 48; Astley at para 19; Duncan at para 47.
[15] This does not mean, however, that sentences for civil contempt are necessarily more lenient: Kovacevic at para 10. While in many cases, a fine and costs award can be a sufficient sanction to meet the objectives of sentencing and ensure continued compliance with court orders, in circumstances where the conduct has been wilful, flagrant, ongoing and damaging, a jail sentence is more likely: Astley at para 36; Kovacevic at para 10;
[16] The following are examples of sentencing decisions where, as in this case, there was a finding of contempt for breach of a court order after a defamation judgment was issued.
[17] In Zhong v Wu, 2022 ONSC 4288, the sentencing judge ordered a conditional discharge with 12 months probation and costs for contempt. Mr. Wu defamed the plaintiff and was ordered not to make further defamatory remarks. He breached the terms of the court order by engaging in further defamation and failing to publish an apology on social media chat sites as required. In arriving at the sentence for contempt, the judge considered it aggravating that it had taken three court hearings to get Mr. Wu to comply and that he would not accept that he acted in contempt of court. That the contempt had ultimately been purged constituted a principal mitigating factor. The judge noted that the $115,000 in unpaid damages and costs award did not constitute a basis for incarceration emphasizing that such awards must be enforced through other civil remedies.
[18] In Astley v Verdun, Justice Goldstein sentenced Mr. Verdun to a custodial sentence of 90 days to be served as a conditional sentence in the form of house arrest followed by 18 months of probation and 200 hours of community service. Mr. Verdun was a governance activist who disagreed with the business policies of Mutual Life of Canada, as a result of which he accused Mr. Astley, the company president, with all manner of misdeeds and circulated inflammatory comments about him. Mr. Astley successfully sued Mr. Verdun for libel. Mr. Verdun was ordered to pay $650,000 in damages as well as costs, none of which was paid. He was also ordered to refrain from making defamatory comments about Mr. Astley to others and online. Mr. Verdun breached the order by making disparaging remarks about Mr. Astley to a Member of Parliament and was found to be in contempt. In arriving at his sentencing decision, Justice Goldstein found that Mr. Verdun’s actions were wilful warranting a custodial sentence. However, he noted the contempt did not involve financial gain and Mr. Verdun had apologized. In those circumstances, Justice Goldstein found that a conditional sentence could be crafted that was sufficiently punitive to denounce the contempt, meet the needs of general and specific deterrence, and promote the rehabilitative goals of sentencing.
[19] In contrast, the court found in Duncan v Buckles, that a conditional sentence was not sufficient to deter the conduct of the contemnor, Mr. Lepp, and ordered him to serve 21 days in jail. Mr. Lepp became involved in a dispute between two neighbours over a fence and made disparaging online statements about the plaintiff. The plaintiff sued and, as in this case, a default judgment was issued for defamation in favour of the plaintiff. The defendants were ordered to remove all online content about the plaintiff, but Mr. Lepp failed to comply with the order and was found in contempt. In sentencing Mr. Lepp, the judge found that it was aggravating that Mr. Lepp violated a court order “before the ink was even dry on it”, delayed purging the contempt, did not provide a sincere apology, had previously breached court orders, and failed to make any payments towards the fines, costs, and damages awarded against him. Although Mr. Lepp was elderly, 72 at the time, and with deteriorating health, the judge found that a custodial sentence of 21 days was warranted to meet the principles of general and specific deterrence. The sentencing judge noted that the jail time would have been higher but for Mr. Lepp’s health issues and the fact that there is no earned remission in contempt matters and Mr. Lepp would have to serve the full jail term.
[20] Finally in Poulie v Johnston, 2022 ONSC 5186, a very recent decision of this court, the judge sentenced Mr. Johnston to four months in jail and costs of $11,917. Mr. Johnston was the plaintiff’s neighbour and began a campaign vilifying him as a result of a property dispute. The court issued a defamation judgment along with a number of orders requiring Mr. Johnston to remove his online defamatory comments and refrain from making more. Mr. Johnston continued his defamatory conduct and was found in contempt of several court orders.
[21] Justice Lemay found that a fine would have no practical effect on Mr. Johnston given he had not paid his fines and damages from his previous contempt orders. The judge also found Mr. Johnston’s conduct was flagrant, that he had not offered an apology or explanation, and that he continued to minimize responsibility for the breaches. While Justice Lemay recognized that a period of incarceration for civil contempt is considered a sanction of last resort, especially when contempt has been purged, he found Mr. Johnston’s flagrant and deliberate breaches of court orders, the delay in compliance, and his history of prior breaches warranted a jail term of four months consecutive to jail terms Mr. Johnston was already serving in Ontario for other matters.
B. Aggravating and Mitigating Factors
[22] Before reviewing the aggravating and mitigating factors, I summarize below the contemptuous conduct for which Ms. Hillier is to be sentenced.
Ms. Hillier published ten further defamatory tweets within eight hours of Justice Gomery’s decision which had directed her to permanently refrain from communicating statements about Ms. Post.
Ms. Hillier failed to publish a retraction that her online statements about Ms. Post were false within 10 days of the Order.
Ms. Hillier failed to remove from social media all online statements she had made about Ms. Post within 10 days. Five tweets remained publicly available for the world to see up until September 20, 2022, when her Twitter account was finally disabled.
Wilful nature of the breaches
[23] There are several aggravating factors in this case, a significant one being the wilful nature of the breaches.
[24] Ms. Hillier’s posting of ten defamatory tweets within eight hours of Justice Gomery’s decision can only be considered a willful and flagrant breach. As indicated in my contempt decision, I do not accept Ms. Hillier’s explanation that she was unaware at the time she issued the tweets of Justice Gomery’s directive to refrain from further defamation.
[25] Furthermore, Ms. Hillier’s refusal to post a one-sentence retraction indicting that her online statements about Ms. Post were false until after a finding of contempt was made demonstrates her deliberate disregard for the Order. As indicated in my contempt decision, I found Ms. Hillier’s explanation that she was awaiting feedback from a paralegal on a draft of a retraction that was effectively spelled out for her by Justice Gomery to be dubious. When confronted about why her initial retractions failed to clearly state that her statements about Ms. Post were false, Ms. Hillier responded with words to the effect of “I had trouble with that part of Justice Gomery’s Order” suggesting she did not initially have any genuine desire to right the wrongs against Ms. Post.
[26] I also find that Ms. Hillier’s conduct in posting the June 24th tweets demonstrated she cared little for the court consequences. In this regard, it was a breach. Until Ms. Baldy informed Ms. Hillier on June 25th that she could be found in contempt and face a jail term if she did not comply with the Order and remove the tweets of the previous day, Ms. Hillier seemed to believe that the only consequences that could flow from court sanctions were monetary. This was reflected not only in the November 2021 tweet described at the outset where she threatened to financially deplete Ms. Post, but also in another tweet in 2022 referred to by Justice Gomery in her decision. In that tweet, Ms. Hillier derided Ms. Post for setting up a GoFundMe account to raise money for her legal fees, and suggested the lawsuit was pointless because she had no assets against which a judgment could be executed: Hillier at para 14.
[27] Furthermore, I find the nature of the remarks made on June 24th is an aggravating factor. As noted in my contempt decision, some of the baseless and disparaging remarks made by Ms. Hillier on that day were similar to the remarks that were the subject of the defamation suit. Ms. Hillier continued to maliciously and falsely suggest that Ms. Post was a predator and that by the end of all this she would have a criminal conviction. As stated clearly by Justice Gomery, it is hard to conceive of more damaging accusation for a teacher than an allegation that she is a sexual predator who drugs her students: Hillier at para 18.
[28] It is also aggravating that Ms. Hillier did not completely purge her contempt until September 20, 2022, four days before the sentencing hearing. Ms. Hillier delayed having Twitter disable her account so that the defamatory posts could be removed. While I appreciate that Ms. Hillier was frustrated by the loss of access to her @WieglerMarissa Twitter account, she failed to exhaust all avenues by which she could regain access to the account and was not diligent in taking the necessary steps to disable this account on Twitter in a timely manner.
[29] Finally, Ms. Hillier only published the retraction ordered in accordance with the wording directed on September 20, 2022, 78 days after the requisite time period. Ms. Hillier was active on Twitter throughout the summer and tweeted 2000 times after the Order was issued. In short, she had 2,000 opportunities to issue the retraction but failed to do so until a contempt order was issued.
Impact on Ms. Post
[30] I have considered Mr. Trielhard’s arguments at the sentencing hearing regarding the use of victim impact statements in contempt proceedings. I find there is authority for me to consider the impact of the contemptuous conduct on Ms. Post as a factor in sentencing: Paramount Fine Foods v Johnston, 2021 ONSC 6558 at paras 59-61.
[31] Ms. Hillier’s contempt in breaching the Order has impacted Ms. Post financially, mentally, and physically. In addition to the legal expenses of the defamation suit, Ms. Post incurred further costs in having her counsel attempt to get Ms. Hillier to comply and ultimately, launching contempt proceedings. The costs on the contempt motion alone are just over $17,000. As Ms. Post explains, the overall costs of both the defamation and contempt proceedings are now more than her annual income. Ms. Hillier’s deliberate conduct has imposed a significant financial burden on Ms. Post.
[32] The contempt proceedings have also caused Ms. Post mental, physical, and emotional distress. As Ms. Post explains in her affidavit of September 21, 2022, the relief she felt when she received Justice’s Gomery’s decision was completely undermined and replaced by heightened anxiety and stress upon seeing the June 24th tweets. Those tweets caused her to re-experience the same level of mental distress, anxiety, and panic attacks she experienced when Ms. Hillier published her initial libellous tweets in November 2021. In both her affidavit and Victim Impact Statement which she read out in court and under oath, Ms. Post explained how the stress has impacted her health and work.
[33] Similarly, any relief Ms. Post expected to feel after the issuance of the contempt decision was also undermined by the launch of a crowdfunding campaign by Ms. Hillier’s friend Shandi Micel. Mr. Treilhard argues that Ms. Hillier cannot be held responsible for the conduct of others on Twitter. While that may be the case generally, I disagree it is the case in these particular circumstances. Ms. Hillier had the means to bring the campaign to an end, or at minimum, request the defamatory conduct contained in it to be removed. She did neither until, once again, Ms. Post’s counsel, alerted her to the issue. Within an hour, the campaign was deleted.
[34] The GiveSendGo campaign was out through a Twitter link by 11:00 am on Friday September 16, 2022, an hour after my contempt decision. Some of which it stated is as follows:
Although she did make a mistake by posting “mean tweets” about the plaintiff, nothing she said was untrue.
The court is expecting Chelsea to lie, and say those weren’t true.
Chelsea has admitted what she did was wrong, and has submitted documents proving it was an equal battle between the two – but the judge did not read the documents.
Chelsea has received an unfair trial, being broadcast by a bias source.
The judge who condemned her is bias, and has no compassion for her not being able to do things in a timely matter due to losing her beloved husband.
No defamation was made to the plaintiff. If anything, she has been made known by this and gained a lot of followers.
[35]
[36] The content perpetuates the defamation by suggesting the online statements about Ms. Post were true and undermines Justice Gomery’s defamation finding. While Ms. Hillier did not produce the content, she certainly could have discouraged it in accordance with the spirit of the Order which required Ms. Hillier “to refrain from making further defamatory, false or disparaging statements or encouraging any other person to publish such statements”: Hillier at para 45.
[37] Ms. Hillier testified before me that she was aware of the campaign but had not read its content because she does not like to read things about herself. Therefore, she did not know about the defamatory content until her lawyer alerted her to it.
[38] I do not accept Ms. Hillier’s evidence for many reasons, some of which are set out in Ms. Post’s affidavit. First, the very purpose of the GiveSendGo campaign was to collect funds for Ms. Hillier. For this reason alone, I find it hard to believe, particularly given her financial circumstances, that Ms. Hillier would not read a post entirely about her and made to collect funds for her, even if just to check the accuracy of its content as it relates to her. Second, the campaign contained a half-page picture of Ms. Hillier. The content at issue was not tucked away in fine print in the back pages, but directly below the photo in plain view. Third, Ms. Hillier and Shandi follow each other on Twitter and interact regularly on social media. They have both indicated they know each other and most recently, Shandi indicated that she is Ms. Hillier’s friend. Fourth, the campaign tweet was liked, commented on, and retweeted numerous times. Shandi tagged individuals to increase the visibility of tweets including to accounts of right wing media and politicians which Ms. Hillier also follows on Twitter. Fifth, Ms. Hillier is a daily Twitter user and was tagged multiple times in tweets discussing the GiveSendGo campaign.
[39] Furthermore, Ms. Hillier testified that while driving home from court following the contempt decision of September 16th, she told her friend Sean that she didn’t believe the judge read her documents. Ms. Hillier acknowledged in court that her remarks to Sean may have been disseminated to others thereby making there way into the campaign page. Ms. Hillier also testified that what she said to Sean was untrue and that she had, in fact, never provided the court, opposing counsel, or myself the documents to read that she was referring to. While I agree with Mr. Treilhard that Ms. Hillier cannot be responsible for drafting the campaign content, she certainly had a role in disseminating untrue information contained in it and which undermined the court’s processes and authority.
[40] Finally, I note that this is not the first time Ms. Hillier has tried to explain away her conduct by suggesting she did not read information. Ms. Hillier previously stated she issued the June 24th defamatory tweets in contempt of the Order because she had not read Justice Gomery’s decision even though some of her tweets on that day referenced the damages awarded against her. I did not accept that explanation either.
[41] While Ms. Hillier’s failure to take steps in removing the defamatory content on the campaign does not form part of the contemptuous conduct for which she is being sentenced, I do find it an aggravating factor because it reflects Ms. Hillier’s persistent failure to recognize the perpetuation of harm against Ms. Post when false statements are made. Ms. Post explained that in the three days following the release of the campaign, she had several panic attacks and heightened anxiety which impacted her ability to work.
[42] The impact on Ms. Post as described by her makes clear that words can harm emotionally, mentally, and physically. The old schoolyard adage “sticks and stones can break my bones, but names shall never hurt me” no longer applies. In the modern world of social media where a person’s words can be disseminated almost instantaneously to thousands of people compounded by the long-term staying power of online statements that are not easily erasable once in circulation, untrue and defamatory words can inflict very real and severe harmful consequences on others. Court orders that attempt to control the dissemination of untrue and defamatory statements so as to minimize harm to individuals must be taken seriously. For this reason, the principles of denunciation and specific and general deterrence remain the paramount principles to be considered in sentencing Ms. Hillier for civil contempt.
[43] In sentencing Ms. Hillier, I must also consider the following mitigating factors.
Personal circumstances of the offender
[44] Ms. Hillier does not have a prior criminal record or record for breaches of court orders.
[45] She is a mother of two school-age children. Ms. Hillier testified that in October 2021, she reconciled with her late husband and he returned to live with her and the children until his tragic death in a car accident in May 2022. During this time, her late husband was the sole income earner for their family. Ms. Baldy questioned Ms. Hillier that if this was the case, why did Ms. Hillier post tweets in February 2022 that her husband was an ex convict and that she was a “single mom” and twice again in April 2022 that she was a “single mom” who lost her job over Covid and that she is “a single mom = no other income.”
[46] In response to Ms. Baldy’s questions, Ms. Hillier acknowledged that she was not a single mom in that period. When Ms. Baldy then asked her if what she had stated publicly was a lie, Ms. Hillier responded: “I’m sorry. Am I under oath on Twitter? I’m under oath here and yes, I was not fully honest on Twitter, but very few people are.”
[47] Ms. Hillier explained that she did not want to publicly disclose that she had reconciled with her late husband because he had previously violently assaulted her, and she lived in a small town and did not want the whole world knowing that he was back living with her and the children. Following his death, Ms. Hillier and the children moved back in with her parents where she presently lives rent free. Ms. Hillier claims she has had difficulty finding work and believes her employment prospects are limited because of the animosity towards her from her former political activism. Ms. Hillier presently works as a bartender two nights a week and testified she has no other source of income other than the Child Tax Benefit. Ms. Hillier also acknowledged she filed for bankruptcy because she could not pay the damages or costs ordered against her from the defamation lawsuit. I find her limited financial circumstances is a mitigating factor for consideration in sentencing.
[48] Ms. Hillier also stated in her affidavit of September 22, 2022, and in her testimony before me that the deterioration of her mental health since the fall of 2021 caused her to act in a manner that has been out of character. Ms. Hillier’s counsel fairly argued that while her mental health does not excuse her conduct, it does provide an explanation for her behaviour and should be considered as a mitigating factor in sentencing.
[49] In particular, Ms. Hillier explained that during the COVID pandemic, she became involved in a heated political debate on Twitter and that it was in this context that she made the defamatory statements against Ms. Post. She was also subject to large amounts of bullying, abuse, harassment, and threats from those who disagreed with her online. By March 1, 2022, her mental health had declined to the point where she was hospitalized for psychiatric assessment connected with ongoing suicidal ideation. She was released the following day with prescription medication including anti-depressants. Her mental distress was compounded by the death of her late husband on May 31, 2022. She discontinued some of the prescription medication in July 2022 as she felt it was making her worse rather than better.
[50] Unfortunately, Ms. Hillier has not provided any medical evidence to support her claims. Her counsel indicates that he had limited time to gather medical exhibits having been retained only after the contempt decision. However, I did ask at the outset of the sentencing hearing, given Mr. Treilhard had just come on board, whether he was prepared to proceed to sentencing and he indicated he was. Furthermore, Mr. Treilhard did not offer to provide me with any medical evidence after the hearing and before I rendered my sentence.
[51] Finally, while I appreciate that counsel had limited time to prepare, Ms. Hillier has had ample time to gather the necessary documents in support of her position. The contempt suit was issued in July 2022, and if her mental health was a factor in explaining her conduct, she had plenty of time to gather medical evidence to file with the court for both the contempt and sentencing hearings. In the absence of supporting medical evidence, the court is entitled to place less weight on her mental health claims: Duncan at paras 39-40.
[52] There are also other concerns with respect to Ms. Hillier’s claims. For example, the toxic Twitter campaign she was engaged in and which resulted in her mental distress occurred between the fall of 2021 and the spring of 2022. While it might have been relevant to explain her conduct in relation to the defamation judgment, it does not entirely explain her contemptuous conduct between June and September 2022 for which I am sentencing her.
[53] Furthermore, during the sentencing hearing, I asked Ms. Hillier that if her engagement with this Twitter political debate had been so toxic that it led her to the point of suicidal ideation, with potentially serious consequences to her health, life, and care of her children, why would she simply not exit Twitter. Ms. Hillier responded that she did in fact get off Twitter. She testified that when she exited the hospital in March 2022 after her one day visit, she was off Twitter for several months until her husband died. At that point, she resumed her Twitter activity because this online community does provide her some emotional support.
[54] Initially, this came across to me as a meaningful and sincere response. However, less than five minutes later, it became readily apparent that Ms. Hillier lied to the court. Counsel were both provided an opportunity to further examine Ms. Hillier following my questions. Ms. Baldy very quickly established that Ms. Hillier never stopped tweeting between March and May 2022, and if one reviews the defamation record before Justice Gomery, one will see about 50 tweets from that time period. When confronted with this, Ms. Hillier’s reply was that in her own mind, she recalled having thrown away her telephone after she left the hospital and therefore believed she had stopped tweeting. However, she readily acknowledged that if there was evidence of her tweeting in that period, she would accept that she did. Her own counsel had no further questions for her.
[55] Notwithstanding Ms. Hillier’s lack of credibility and the failure to provide medical evidence in support of her position, I have considered Ms. Hillier’s mental health in the last 10 months, including the loss of her late husband, as a mitigating factor of some weight in arriving at my sentencing decision today.
Contempt was purged
[56] I must also consider Ms. Hillier did ultimately purge the contempt, and this does constitute a mitigating factor in civil contempt, particularly because the objective in such cases is to bring about compliance of the court order. Ms. Post can at least be assured that Ms. Hillier does not intend to further defame her and has removed all defamatory tweets that she was responsible for.
[57] The court is still entitled and required to sentence for contempt even after the contempt is purged. Otherwise persons could flagrantly disobey court orders and delay purging until just prior to sentencing: McLean v Sleigh, 2019 NSCA 71 at para 77. I have considered as a mitigating factor that Ms. Hillier purged the contempt, albeit after considerable delay, several court proceedings, and at significant cost to Ms. Post. As explained in my contempt decision, Ms. Baldy corresponded with Ms. Hillier immediately after the contempt began on June 24th and made persistent efforts to elicit Ms. Hillier’s cooperation notwithstanding that in at least one instance, Ms. Hillier made rude and threatening remarks to counsel.
Apology
[58] Ms. Hillier has apologized both in her affidavit and in her testimony before the court. Ms. Baldy and her client question the sincerity of that apology given she only started to take her misconduct seriously when informed by Ms. Baldy that her contempt could result in a jail term, was not diligent in fully complying until a contempt order was issued against her, and continued to remain passive when the GiveSendGo campaign posted content that continued the defamation and undermined the court’s authority.
[59] While these factors certainly suggest a lack of genuine remorse, having heard directly from Ms. Hillier, I accept that at this time Ms. Hillier is sincere in her apology and that this should be given some weight as a mitigating factor in sentence.
C. The Appropriate sentence in this case
[60] While Mr. Trielhard and Ms. Baldy both proposed that a fine could form part of an appropriate penalty in this case, I find a fine would be meaningless. Even if a fine would be exempt from the bankruptcy proceedings, and Ms. Hillier would have to pay it to the court, the reality is that Ms. Hillier has no present ability to pay a fine. Furthermore, should she come into any funds, I find that the priority should be to pay the damages and costs awarded to Ms. Post so that Ms. Post can recoup her financial losses.
[61] As noted at the outset, the rule of law and effectiveness of the justice system require that court orders be respected. Upon consideration of the aggravating and mitigating factors as well as the applicable sentencing principles, I find that Ms. Hillier’s wilful and flagrant breach of the Order is an aggravating factor that warrants a custodial sentence. However, I also accept as mitigating factors that Ms. Hillier comes to the court with no prior history of breaching criminal or civil court orders, has purged the contempt, and has issued an apology. I have also attributed some weight to her mental health which, as already noted, was not supported by medical evidence.
[62] The principles of sentencing require that I consider all available sanctions other than imprisonment that are reasonable in the circumstances. In exercising my inherent jurisdiction to craft an appropriate remedy for civil contempt, I find that one reasonable sentencing option would be a sentence that is akin to a conditional sentence. This would allow Ms. Hillier to serve, what would otherwise be a custodial sentence, in the community under strict conditions of house arrest: Astley at paras 45 to 48; see also Astley v Verdun, 2014 ONCA 668 and Astley v Verdun, 2015 ONCA 543. I find serving the sentence in this manner would not endanger the safety of the community and is consistent with the principles and objectives of sentencing for civil contempt. I find that in the circumstances of this case, a 75 day order akin to a conditional sentence to be served in the community in the form of house arrest followed by a nine month order akin to a probation order with 120 hours of community service sufficiently denounces Ms. Hillier’s conduct, meets the objectives of specific and general deterrence, and respects the rehabilitative goals of sentencing.
[63] Ms. Hillier will be subject to a 75 day order akin to a conditional sentence under the following terms and conditions:
You will be under house arrest for 75 days. You are not allowed to leave your home except for:
a. your own or your children’s medical and dental appointments and emergencies;
b. for work purposes;
c. to drop off and pick up your children from school for a total of 1 hour a day;
d. to shop for groceries twice a week for no more than 2 hours each trip, and
e. to see your counsel.
You will remain at all times in the province of Ontario.
You will comply with Justice Gomery’s Order.
You will not make any online statements about Ms. Post or about the legal proceedings involving yourself and Ms. Post.
You will not make any defamatory statements about Ms. Post when speaking to others.
If you are outside your home for work purposes, you must travel straight to work and return directly home after work save for stopping for gas.
You will at all times when you are outside the home, carry a copy of my sentence order.
[64] Upon the expiry of the above 75 day order, you will be on an order with terms and conditions akin to a probation order for a period of nine months, the terms and conditions of which are as follows.
You will complete 120 hours of community service.
You will work with your counsel to determine an appropriate plan for community service.
Upon completion of the community service, you will file an affidavit with the court and send it to my attention attesting that you have completed the community service and the nature of that service.
You will comply with Justice Gomery’s Order.
You will not make any online statements about Ms. Post or about the legal proceedings involving yourself and Ms. Post.
You will not make any defamatory statements about Ms. Post when speaking to others.
[65] Furthermore, while I have ordered you to abide by Justice Gomery’s Order, you must remember that she has issued a permanent injunction against you from further defamation of Ms. Post. That Order applies well beyond the sentence I impose on you today. I urge you to read it properly and review it with your counsel so you understand the words and spirit of the Order.
Costs
[66] Ms. Baldy submitted a bill of costs. Counsel seeks full recovery costs in the amount of $17,798.
[67] Costs are in the discretion of the court. The overriding principle is that costs should be fair and reasonable: Boucher v Public Accountants Council for Ontario, 2004 ONCA 14579, [2004] OJ No 2634 (QL).
[68] Substantial indemnity costs are generally awarded in cases of contempt particularly where the conduct is egregious and demonstrates a deliberate attempt at frustration: Einstoss v Starkman, 2003 ONSC 2304, [2003] OJ No 96 (QL) at para 14: Astley at paras 52 and 56. In some instances, costs may be awarded on a full recovery basis: Zhong v Wu at para 34.
[69] Having considered that Ms. Post was the successful party on the contempt motion, the wilful and flagrant nature of the breaches, Ms. Hillier’s delay in purging the contempt and apologizing, the time spent by counsel to prepare and attend multiple hearings, the reasonableness of the rates, the complexity of the issues, as well as Ms. Hillier’s ability to pay which can be given some weight in a costs awards, I find that substantial indemnity costs in the amount of $16,115.98 is fair and reasonable in this case.
[70] Ms. Hillier will pay Ms. Post costs in the amount of $16,115.98 within 30 days.
[71] Counsel shall draft an order consistent with the terms and conditions of the sentence and costs ordered. Should there be any discrepancy in the wording of the oral and written decision, the written decision shall prevail.
Somji J.
Released: October 25, 2022
COURT FILE NO.: CV-21-88228
DATE: 2022/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Esther Post
Plaintiff
– and –
Cheslea Hillier
Defendant
REASONS FOR SENTENCE FOR CIVIL CONTEMPT
Somji J.
Released: October 25, 2022