Date: 20070117
Docket: A-334-06
Citation: 2007 FCA 52
CORAM: NOËL
J.A.
SEXTON J.A.
PELLETIER
J.A.
BETWEEN:
TOMASZ WINNICKI
Appellant
and
CANADIAN HUMAN RIGHTS
COMMISSION
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
Because
the appellant is again in custody and because this appeal puts into question
the appropriateness of the sentence he is serving. I propose to dispose of this
appeal summarily so that the appellant's status is settled without delay. These
reasons should be read with this in mind.
[2]
The
appellant has appealed against the sentence of nine months incarceration imposed
by the Federal Court on July 12, 2006 the finding that the appellant was found
to be in breach of an injunction ordered by the Federal Court on October 4,
2005.
[3]
The
appellant was the subject of a complaint before the Canadian Human Rights
commission that he posted messages on the internet in which he made derogatory
statements about persons on the basis of their religion or race which were
likely to expose such persons to hatred and/or contempt contrary to subsection
13(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[4]
The
Federal Court granted an interlocutory injunction restraining the appellant
from continuing to post such messages on the internet pending a decision by the
Canadian Human Rights Tribunal on the complaints which had been lodged. The
interlocutory injunction was granted on October 4, 2005. The Canadian Human
Rights Tribunal which heard the complaint against the appellant did not render
its decision until April 13, 2006. The Tribunal decided inter alia that
the appellant had violated subsection 13(1) of the Canadian Human Rights Act.
[5]
The
injunction stated that the appellant was "restrained from communicating,
by means of the internet, messages that are likely to expose persons to hatred
or contempt by reason of race, national or ethnic origin, colour or religion
contrary to subsection 13(1) of the Canadian Human Rights Act."
[6]
The
appellant, in spite of the injunction, continued to publish further messages on
the internet and accordingly the respondent brought a motion for contempt by
the appellant of the Court Order.
[7]
By
judgment dated July 12, 2006 the Federal Court found that the appellant had
continued to post messages in contravention of the injunction and proceeded
then to find the appellant in contempt of court. In the same judgment, the
Federal Court imposed a sentence of nine months imprisonment on the appellant
and ordered the appellant to pay the respondent's costs on a solicitor and
client basis.
[8]
The
appellant has appealed from the judgment of the Federal Court alleging firstly
that the trial judge erred in principle by failing to provide the appellant
with an opportunity to make submissions as to sentence prior to imposing the
sentence and by failing to consider all factors relevant to the sentence.
Secondly, the appellant appeals the sentence of nine months on the grounds that
it was unduly harsh, disproportionate in the circumstances and inconsistent
with other precedents relating to sentencing.
Submissions as to Sentence
[9]
At the show
cause hearing the respondent made submissions to the effect that the appellant
should be found guilty of contempt and also made submissions as to the
appropriate penalty which should be imposed. The appellant, on the other hand,
only made submissions as to whether or not there should be a finding of
contempt and made no submissions as to sentence.
[10]
The trial
judge reserved judgment and eight days later delivered the judgment in which he
both found the appellant in contempt and imposed a prison sentence of nine
months.
[11]
The
appellant submits that principles of natural justice impose a duty on the Court
to permit submissions to be made on sentence after a conviction is registered.
The respondent admits that the appellant had a right to make submissions as to
sentence but says there was a duty on the appellant to make such submissions at
the time of the hearing before the Federal Court. The respondent argues that it
made submissions and that there was no reason for the appellant not to have
made similar submissions. By remaining silent and failing to request the right
to make submissions at a later time that the appellant has waived his rights
and has no valid complaint as a result.
[12]
There is
no dispute, therefore, about the fact that an individual found in contempt has
a right to make submissions as to sentence. The issue for this Court is whether
or not the appellant waived his right to make submissions by failing to make
them at the time of the initial hearing or by failing to reserve the right to
do so in the event there was a finding of contempt.
[13]
It seems
to me that the appellant has not lost this right. It would be very difficult
indeed and perhaps impossible in many cases for counsel to make submissions on
sentence before knowing the findings of the trial judge on the issue of the
guilt of the accused. Submissions as to sentence might well vary depending on
the severity of the findings of the trial judge. Additionally, counsel might
wish to lead evidence as to facts to be taken into account which would suggest
a more lenient sentence. Such facts in and of themselves might implicate the
accused in the offence and therefore counsel could not be expected to lead such
evidence prior to a finding that the accused was guilty of the contempt
alleged. Quite possibly such evidence might be construed as an admission of
guilt. One of the mitigating factors to be taken into account in sentencing is
whether there has been an apology. Obviously an apology by an accused would
constitute an admission. Therefore, such evidence could not safely be adduced
prior to a finding of guilt on the part of the accused.
[14]
The
authorities support this proposition. In R. v. K. (B.), [1995] 4 S.C.R.
186 at 198 the Supreme Court of Canada held as follows:
In addition, upon a
finding of contempt there should be an opportunity to have representations made
as to what would be an appropriate sentence. This was not done and
there was no need to forego all of these steps. [Emphasis added]
The British Columbia Court of appeal expressed a similar
idea in MacMillan Bloedel Ltd. v. Simpson (1993), 106 D.L.R. (4th)
540 (B.C.C.A.):
After convicting the
appellant of criminal contempt of Court the trial judge, through oversight, did
not call upon counsel to make submissions regarding sentence.
[15]
In a very
similar case show cause proceedings were taken following breach of an injunction
against transmitting hate messages. Teitelbaum J. of the Federal Court found
that Liberty Net was in breach of an injunction restraining the communication
of hate messages on the internet. Teitelbaum J. found this to be a serious
breach and then said "it is for this reason that I have ordered the
parties to appear before me today to make representations as to the penalty
that should be imposed." (Canada (Canadian Human Rights Commission) v.
Canadian Liberty Net [1992], F.C.J. No. 723.)
[16]
I find
that the procedure taken by Teitelbaum J. is the appropriate procedure to be
taken after a finding of contempt. As a result of the failure of the trial
judge in the present case to follow this procedure, the appellant was deprived
of his unqualified right to make submissions at the appropriate time. The onus
cannot be on the accused to make or reserve the right to make submissions as to
sentence before a finding of guilt.
Was The Sentence Appropriate?
[17]
The trial
judge said as follows:
I find TW to be in
contempt of Justice de Montigny's order dated October 4, 2005. In order to
determine the appropriate penalty, one must look at the relevant factors. As
discussed by Justice Lemiuex in Lyons Partnership, L.P. v.
MacGregor
(2000), 186 F.T.R. 241, the factors which one must access are:
1. the gravity
of the contempt in the context of the particular circumstances of the case as
they pertain to the administration of justice;
2. whether the
contempt offence is the first offence;
3. presence of
any mitigating factors such as good faith or an apology; and
4. deterrence of
similar conduct.
[18]
While the learned
trial judge properly set forth the factors to be considered, he deprived
himself of the means to properly consider them when he failed to give the
appellant the opportunity to make submissions prior to imposing sentence. Such
submissions would have allowed the judge to properly consider the fact that the
appellant was a first offender.
[19]
Subsequent
to the incarceration of the appellant he made an application for a stay of his
sentence pending appeal having already served some 83 days. On the material
before the judge who granted the stay and released the appellant on certain
conditions was evidence that this contempt finding was the first offence of the
appellant.
[20]
The
authorities are clear that a Court should take special care in imposing a
sentence of imprisonment upon a first offender. The trial judge should have
either a pre-sentence report or some very clear statement with respect to the
accused's background and circumstances. This is particularly true of youthful
offenders such as the appellant. Further it has been recognized that except for
very serious offences and offences involving violence, the primary objective of
individual deterrence can be best achieved by either a suspended sentence or
probation or a very short term of imprisonment followed by a term of probation.
(see R. v. Gladue, [1999] 1 S.C.R. 688). In R. v. Priest, [1996]
O.J. No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:
The duty to explore
other dispositions for a first offender before imposing a custodial sentence is
not an empty formalism which can be avoided merely by invoking the objective of
general deterrence. It should be clear from the record of the proceedings,
preferably in the trial judge's reasons, why the circumstances of this
particular case require that this first offender must receive a sentence of
imprisonment. The trial judge had no material before him from which he could
possibly have made this determination. His reasons are barren of any lawful
justification for such a radical departure from this well-established principle
especially in the case of a youthful first offender.
Even if a custodial
sentence was appropriate in this case, it is a well-established principle of
sentencing laid down by this court that a first sentence of imprisonment should
be as short as possible and tailored to the individual circumstances of the
accused rather than solely for the purpose of general deterrence. …
Likewise,
in R. v. Curran (1973), 57 Cr. App. R. 945 it was noted that,
As a general rule it is
undesirable that a first sentence of immediate imprisonment should be very
long, disproportionate to the gravity of the offence, and imposed as this
sentence was, for reasons of general deterrence, that is as a warning to
others. The length of a first sentence is more reasonably determined by
considerations of individual deterrence; and what sentence is needed to teach
this particular offender a lesson which he has not learnt from the lighter
sentences which he has previously received.
[21]
It is
clear in the present case that because the learned trial judge failed to
appreciate the background and circumstances of the appellant, and failed to
address in his reasons the fact that the appellant was a first offender, this
Court must review the sentence itself.
[22]
Where the
trial judge makes an error in principle or fails to consider a relevant factor
the obligation of this Court is to examine the sentence which was imposed by
the trial judge in order to see whether it was appropriate. (R. v. Rezaie
(1996), 112 C.C.C. (3d) 97 (Ont. C.A.)).
[23]
In similar
fact situations sentences imposed have been in the order of:
1. seven days (R. v. Richard,
[1980] O.J. No. 1507);
2.
two
months, later reduced to two days by the Court of Appeal, (Canada (Canadian Human Rights
Commission) v. Canadian Liberty Net, [1992] F.C.J. No. 723 (F.C.T.D.),
[1996] F.C.J. No. 100 (F.C.A.));
3.
30 to 60
days (MacMillan Bloedel Ltd. v. Blaker, [1994] B.C.J. No. 1458
(B.C.C.A.));
4.
fine (Canada (Minister of National Revenue
– M.N.R.) v. Wigemyr,
[2004] F.C.J. 1123 (F.C.));
5. five weeks (R. v. Priest,
[1996] O.J. No. 3369 (Ont. C.A.));
6.
third
offence for contempt of Court – four months (MacMillan Bloedel Ltd. v.
Simpson (1993), 106 D.L.R. (4th) 540 (B.C.C.A.)).
[24]
Because
the appellant was not given the opportunity to make submissions on sentence in
the Court below it was agreed that this Court would hear the submissions as to
sentence. They were as follows:
1. This was a first offence by
the appellant.
2.
The
appellant is gainfully employed as a computer programmer with the same employer
since 1999. He works 44 hours a week with overtime expected and is considered
to be an excellent employee indispensable to the company's success.
[25]
Having
regard to these factors and to the fact that the appellant has already served
83 days in jail, it is my view that his sentence should be reduced so as to be
equal to the time already served in jail. Accordingly the appeal will be
allowed and the sentence will be reduced to the time already served.
[26]
On the
issue of costs, the appellant submitted that there should be no costs on the
appeal and I agree.
[27]
The order
as to costs in front of a trial judge should remain the same as the finding of
contempt has not been contested.
"J. Edgar Sexton"
"I
agree
Marc Noël J.A."
I
agree
J.D. Denis Pelletier J.A."
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