What is criminal contempt of court?
Criminal contempt of court is when someone publicly defies a court injunction, which has the effect of bringing the administration of justice into disrepute. An injunction is a court order that forbids someone from doing something.
Criminal contempt of court proceedings mostly occur as the government’s response to public protests. First, a superior court judge will issue an injunction forbidding protesters from obstructing controversial economic activity.
For example, protesters might block roads to prevent a logging company from accessing an old growth forest that the company intends to clear cut. The logging company will ask the court to issue an order that the protesters can’t block the roads (i.e. to issue an injunction). Assuming the logging company had properly obtained permission from the government to cut down the forest, the court might grant the injunction.
If protesters then publicly defy the court injunction, they might be liable for criminal contempt of court. Note that they must defy the injunction publicly. Otherwise, they’re only liable for civil contempt of court.
What are some examples of high-profile protests that have led to criminal contempt of court charges?
In the 1990’s, the forestry company MacMillan Bloedel obtained a permit to log old growth forest in Clayoquot Sound. Protesters passionately opposed this. The police arrested hundreds of protesters, and the government prosecuted them for criminal contempt of court. The courts ended up sentencing some of these protesters to months of jail.
Other protests in BC where the government prosecuted protesters for criminal contempt of court include the Eagle Bluffs protests during the construction of the Sea-to-Sky highway (i.e. the road from Vancouver to Whislter) and, more recently, the protests against the expansion of the Trans Mountain Pipeline in Burnaby.
What’s special about criminal contempt of court?
There are two versions of contempt of court. One is in the Criminal Code and applies when a witness fails to attend court or leaves court when they’re legally required to testify. The other contempt of court is the only offence not found in the Criminal Code. It applies when someone publicly defies the court such that their conduct brings the administration of justice into disrepute.
Because Canada is a constitutional monarchy, we say that prosecutors act on behalf of the Queen. That means the parties to the prosecution are “the Queen versus the accused”. When a prosecutor charges someone with criminal contempt of court for defying a court injunction, the opposing party to the accused is the party that obtained the injunction (usually a company). However, the prosecution is still pursued by the government, not the aggrieved company.
Why is criminal contempt of court such a serious offence?
The courts hate it when members of the public defy their orders. If the media publicizes protesters’ defiance of a court order, it can encourage more defiance from more protesters. In essence, the government pursues criminal contempt of court proceedings to shut down civil disobedience.
Courts begin imposing low sentences on early protesters. As protests continue, the courts impose harsher and harsher sentences to discourage further protests (i.e. “restore the rule of law”). Eventually, courts can impose lengthy jail sentences, even on people with no criminal history and very pro-social personal histories.
What are some defences to criminal contempt of court?
Much like with breaches of court orders, there’s usually no defence to a criminal contempt of court charge. In fact, sometimes the whole point of a protest is to publicly defy a court order so that the police arrest you for it. That increases the visibility of the cause.
When there’s no way to beat a criminal charge, a defence lawyer’s focus must shift to mitigation. If a criminal lawyer can keep their client out of jail for criminal contempt of court, that’s a win.
You can find some of the firm’s case results for criminal contempt of court HERE.