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SENTENCING - Contempt of court - Particular sanctions

Tuesday, June 11, 2019 @ 6:25 AM  


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Appeals by several accused from sentences of 14 days’ imprisonment for criminal contempt. The appellants pleaded guilty to violating injunction order restraining protestors from obstructing access to Trans Mountain Pipeline work sites. The judge did not accept the appellants’ arguments that custodial sentences would be inappropriate. The appellants argued the custodial sentences were inappropriate. They argued the sentencing judge incorrectly found that the appellants were aware of the Crown position on sentencing before their arrest, gave insufficient weight to the parity principle and overemphasized the principle of general deterrence.

HELD: Appeals dismissed. There was no requirement for the Crown to give notice of its explicit sentencing position prior to the arrest of protestors on a charge of criminal contempt. Proof of knowledge of the Crown’s escalating sentencing position was not required before a court could impose a more onerous sentence. It was difficult for police officers to know at the moment of arrest what the Crown’s position might be at the time of sentencing. Contrary to the appellants’ submissions, they were given significant information about the potential consequences of their actions, including the possibility that they could receive jail sentences. Notwithstanding the information about consequences provided to the appellants before they were arrested, knowledge of the order alleged to be breached was sufficient to establish the offence of criminal contempt. The appellants cited no authority and did not identify any principled basis for extending the mens rea for criminal contempt to require that contemnors also have actual knowledge of the potential sentence for a contemplated contemptuous act. The judge did not treat the appellants’ assumed knowledge of the Crown’s sentencing position as an aggravating fact. The judge did not err in principle, fail to consider a relevant factor or inappropriately weigh the factors in his assessment of an appropriate sentence. His reasons demonstrated consideration of binding jurisprudence, earlier sentences in the same proceedings and the circumstances of each appellant. He was entitled to consider general deterrence as an important factor in crafting the sentences. The appellants did not demonstrate their sentences were grossly disproportionate or demonstrably unfit. Sentence: 14 days’ imprisonment.

Trans Mountain Pipeline ULC v. Mivasair, [2019] B.C.J. No. 852, British Columbia Court of Appeal, S.D. Frankel, R. Goepel and Butler JJ.A., May 9, 2019. Digest No. TLD-June102019004