Criminalizing the Key Witness: Contempt of Court Sentencing and R v Lavallee - Heather Peterson

Introduction

Section 708(1) of the Criminal Code states that “a person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.”[1] The Supreme Court of Canada (‘the SCC’) ruled in 1992 that “criminal contempt power should be used sparingly, with great restraint and only when required to protect the rule of law.”[2] As a result, criminal contempt charges have been historically rare,[3] although they have recently increased in frequency. Criminal contempt is differentiated from civil contempt by the “element of public defiance”[4] which “publicly depreciates the authority of the court and the administration of justice.”[5] This public defiance is punishable by fine or imprisonment.[6]

The “fundamental principle of sentencing is to protect society and to contribute…to respect for the law and the maintenance of a just, peaceful and safe society.”[7] Sentencing aims to accomplish these goals by “imposing just sanctions” meant to “deter the offender and other persons from committing offenses”[8] and “to promote a sense of responsibility in offenders.”[9] Sentencing must “be proportionate to the gravity of the offense and the degree of responsibility of the offender.”[10] Appropriate sentencing should be considered in the context of a number of mitigating factors, including a “significant impact” of the offense on the offender,[11] and the offender’s personal characteristics, such as indigeneity and trauma.[12]

These principles are particularly relevant in R v Lavallee, heard at the Manitoba Court of Appeals (MBCA) in September, 2022.[13] This blog submits that Ms. Lavallee’s appeal should have been allowed on the basis that her sentence was (1) disproportionate to the gravity of her offense and (2) did not consider any mitigating factors of her personal circumstances.

Background

At the time of her appeal, Ms. Lavallee was a 28-year-old Indigenous woman living in Winnipeg, who the MBCA acknowledges “has lived a difficult and traumatic life.”[14] Ms. Lavallee is unhoused, substance-dependant, and struggles to meet her basic needs. She is the victim of multiple instances of violence, and has a history with the criminal justice system.[15] In 2018 Ms. Lavallee “was an eyewitness to a brutal beating and stabbing murder”[16] and reluctantly agreed to help the police detain and charge several individuals related to the matter. When it became known that she had assisted authorities, Ms. Lavallee was the recipient of several threats against her life, and a brutal physical assault, after which she was robbed of her few possessions.[17] In the summer of 2020, Ms. Lavallee was subpoenaed to testify at the murder trial, which would begin in September of that year. Before the trial started, Ms. Lavallee told authorities that she was terrified to testify, and would not do so, even if the consequence was jail time.[18] When the trial began on September 14, 2020, Ms. Lavallee did not attend, although after being arrested for a different matter, she testified on September 28, 2020.[19] Although Ms. Lavallee ultimately testified, and apologized for her initial unwillingness to do so, she was charged with criminal contempt of court and sentenced to ten months’ imprisonment.[20] Ms. Lavallee plead guilty to the charge, so the Crown was not required to prove that she had committed the crime.[21] The fact that Ms. Lavallee apologized to the Court and explained that she was frightened of the potential repercussions of testifying is very relevant. Contemnors are permitted to attempt to remedy their contempt through a process known as purging, which typically involves an apology and the performance of the act they initially refused to do.[22]

Ms. Lavallee appealed her conviction on the basis that “the trial judge made errors as to the legal standard he applied in deciding whether the contemnor had purged her contempt and that his finding was unreasonable.”[23] Although the Court of Appeal came to a different conclusion, I submit that Ms. Lavallee’s appeal should have been allowed and her sentence should have been reduced or revoked entirely.

Disproportionality of Sentence

Proportionality of sentencing is determined by both the gravity of the offense committed, and by considering sentences other offenders received in similar circumstances.[24] The Criminal Code prescribes that criminal contempt sentences should be no longer than ninety days of imprisonment,[25] but R v Asselin established that longer sentences can be suitable.[26] The MBCA cited Asselin in its evaluation of whether Ms. Lavallee’s sentence was appropriate in the face of the gravity of her offense[27] but the cases reviewed in Asselin do not match Ms. Lavallee’s circumstances. Asselin analyzes criminal contempt cases where individuals were charged for refusing to testify or delaying testimony. In these matters all the contemnors were men and only one of them experienced a physical assault as punishment for cooperating with authorities.[28] The MBCA decision also cites several other cases where contemnors received sixty-day sentences or monetary fines.[29] Most of these contemnors either refused entirely to testify, or successfully appealed their charges.[30] Considering that Ms. Lavallee ultimately wound up testifying and apologizing, it is difficult to reconcile her sentence with case law presented as factually similar.

Ms. Lavallee was absent on September 14, 2020, but testified on September 28, 2020. Therefore, the tangible effect of her contempt was a delay of ten business days in trial proceedings. Because Ms. Lavallee’s testimony facilitated several murder convictions, combined with the fact that she apologized to the court, it is my opinion that 10 months of imprisonment was disproportionate, severe, and unprecedented. Ms. Lavallee survived threats to her person and a violent assault, and still courageously testified. The MBCA notes that Ms. Lavallee refused help offered to her by the Crown. As we will explore, this is a trauma response related to her marginalized identity, and should have been considered in the context of her sentencing.

Indigenous Offenders and the Criminal Code

Pursuant to s. 718.2(e) of the Criminal Code, “all available sanctions other than imprisonment” must be contemplated for offenders “with particular attention to the circumstances of Aboriginal offenders.”[31] The SCC ruling in R v Gladue allows for pre-sentencing reports when courts are sentencing Indigenous offenders.[32] Gladue Reports explore the fact that many Indigenous people have faced profoundly difficult life circumstances that are directly related to the ongoing impact of colonialism. These circumstances partially account for the over-representation of Indigenous people in the carceral system, and may guide courts toward more proportional sentences. These principles were re-affirmed in R v Ipeelee in 2012[33].

In 2008 the Ontario Court of Appeal held that “sentencing principles articulated by the Supreme Court of Canada in R v Gladue are applicable when fashioning a sentence for…criminal contempt on the part of aboriginal contemnors.”[34] Although a reference to a request for a Gladue Report is included in the MBCA ruling, it is unclear if one was completed.[35] Three sentences of the MBCA ruling are dedicated to Ms. Lavallee’s personal circumstances, and very little credence is paid to the fact that she was terrified of her assailants. I cannot emphasize enough how vulnerable unhoused, substance dependent women are, particularly in an economically depressed city like Winnipeg.

The MBCA suggested that Ms. Lavallee only apologized to the court to “potentially mitigate her sentence for criminal contempt.”[36] I think, considering that Ms. Lavallee is marginalized, dispossessed and victimized, expecting her to apologize for any other reason is quite inappropriate. Indigenous people, particularly women, face profound systemic barriers in every aspect of their existence.[37] It is well-established that racism, sexism, and colonialism function to decrease an individual’s sense of belonging in wider society.[38] An individual with Ms. Lavallee’s experiences cannot be expected to respect the justice system as a just and fair institution. This feeling would only have been exacerbated by this sentence; an individual’s apology cannot be rendered less sincere when it is rooted in visceral fear and self-preservation.

Ms. Lavallee’s ‘indifference’ to the help offered to her by the Crown seems more understandable in the context of a marginalized person. Ms. Lavallee was probably offered witness protection, which can be funded by federal or provincial governments.[39] The federal Witness Protection Program Act contains provisions for participants to access counseling and addictions treatment, but these services are not guaranteed, nor are they necessarily trauma-informed or appropriate for Indigenous populations.[40] In addition, Canadian witness protection programs have been criticized for their lack of efficacy, so Ms. Lavallee’s indifference to them is not simply obstinance or disregard.[41] If Ms. Lavallee believed that witness protection could not ensure her safety, her delay in testifying makes sense. The administration of justice cannot and should not depend solely on re-traumatizing a vulnerable person whose historical and personal circumstances are so bleak that the Criminal Code gives them special consideration.

Conclusion

Ms. Lavallee was charged with criminal contempt because the court ruled that her refusal to testify constituted willful and “public defiance” of the legal system, and a disregard for the administration of justice.[42] This is a misinterpretation of Ms. Lavallee’s intent and state of mind. Ms. Lavallee, although a victim of violence, delayed her testimony through fear for her personal safety. In apologizing to the court, and providing it with her integral eyewitness testimony, her contempt should have been considered purged and her appeal should have been allowed. Ms. Lavallee’s treatment by the courts will ultimately disincentivize others from testifying, or testifying truthfully, which is, in itself, a disregard for the administration of justice in Manitoba.

Update: Reconsideration by the MBCA

This blog was prepared and submitted in November, 2022. In a fascinating development the MBCA reconsidered its appellate ruling in December, 2022. It found that the trial judge had, in fact, made several errors in principle which justified further intervention.[43] The court notes in its decision that the re-evaluation took place after Ms. Lavallee had served her full sentence. Ms. Lavallee submitted that its length had had an unjustifiably negative impact on her, and requested that the issues raised by her sentence be formally addressed, lest they be repeated.[44]

The MBCA found that the trial judge did not appropriately assess how Ms. Lavallee’s Gladue factors lessened her moral culpability. The trial judge framed Ms. Lavallee’s presence in a drug house amongst violent people as a “lifestyle choice.”[45] Ms. Lavallee’s life up to the time of her conviction had been extremely difficult. In her 24 years, she had survived “violence, abuse, addiction, parenting deficits, poverty, and lack of education and employment.”[46] Ms. Lavalle had two children, one of which died as an infant, and the other was removed from her care. She reported using crystal methamphetamine to assuage the agony of her circumstances, which is how she came to be present at a brutal and bloody homicide.

The trial judge’s contention that Ms. Lavallee is entirely responsible for witnessing a brutal murder is “antithetical to Gladue principles” and therefore an error that affected sentencing.[47]

The MBCA then submitted that the trial judge had not considered the mitigating factor of Ms. Lavallee’s courageous testimony in the face of very real danger. Immediately after the murder, Ms. Lavallee was forced to mop up the victim’s blood, and was threatened with a similar fate if she cooperated with the authorities.[48] The trial judge minimized and dismissed her (very reasonable) fear, and then disregarded her admission of guilt in the matter. Ms. Lavallee demonstrated remorse by apologizing to the court, testifying, and pleading guilty when charged with criminal contempt.

Finally, the MBCA found that Ms. Lavallee’s situation was factually dissimilar from the cases reviewed in the Asselin decision. None of those contemnors eventually testified, and Mr. Asselin’s refusal to testify resulted in the acquittal of a murder charge.[49]

After balancing the need for deterrence with mitigating circumstances and Gladue factors reducing moral culpability, the MBCA found that five months in prison was an appropriate sentence for Ms. Lavallee. While this reduction is a step in the right direction, the decision is devalued by the MBCA writing that “refusing to testify for this reason [fear] should not be condoned.”[50] Respectfully, I submit that this is a privileged notion, proposed by persons who are accustomed to society’s institutions working in their favour. Every ameliorative institution we possess has failed Ms. Lavallee, therefore the “indifference” she displayed towards the protection offered by the justice system was understandable.[51] The Canadian justice system has created a victimization-criminalization continuum wherein trauma is dismissed as “peripheral and insignificant” and Indigenous women are incarcerated as often as they are mistreated.[52] Reactive appellate intervention is, generally, a positive measure, but a proactive, trauma-informed trial decision would have been far better and in line with the fundamental principles of justice and reconciliation.

[1] Criminal Code, RSC 1985, c C-46, s 708(1). [2] United Nurses of Alberta v Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 SCR 901 at 95 [United Nurses of Alberta]. [3] R v Lavallee, 2022 MBCA 79 (CanLII) at para 11 [Lavallee 79]. [4] Ibid at para 16. [5] CED 4th (online), Contempt of Court (Western), “Classifications of Contempts – Criminal Contempt” (II.2) at § 4. [6] Supra note 1 at s 708(2). [7] Ibid at s 718. [8] Ibid at s 718(b). [9] Ibid at s 718(f). [10] Ibid at s 718.1. [11] Ibid at s 718.2(a)(iii)(1). [12] Ibid at 718.2(e). [13] Lavallee 79, supra note 3. [14] Ibid at para 3. [15] Ibid. [16] Ibid. [17] Ibid. [18] Ibid at para 4. [19] Ibid at para 5. [20] Ibid at para 1. [21] Ibid at para 8. [22] Ibid at paras 15-18. [23] Ibid at para 10. [24] R v Asselin, 2019 MBCA 94 (CanLII) at para 57 [Asselin]. [25] Supra note 1 at s 708(2). [26] Lavallee 79, supra note 3 at para 57. [27] Lavallee 79, supra note 3 at para 1. [28] Supra note 23 at para 57. [29] Lavallee 79, supra note 3 at paras 11-12, 17. [30] Supra note 23 at para 57. [31] Supra note 1 at at 718.2(e). [32] R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 at para 1 [Gladue]. [33] R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433 at para 34 [Ipeelee]. [34]Frontenac Ventures Corporation v Ardoch Algonquin First Nation, 2008 ONCA 534 (CanLII) at 2 [Frontenac]. [35] Lavallee 79, supra note 3 at para 7. [36] Ibid at para 18. [37] Jeff Denis, Canada at a Crossroads: Boundaries, Bridges and Laissez-faire Racism in Indigenous-Settler Relations (Toronto: University of Toronto Press, 2020) at 126. [38] House of Commons, Special Committee on Violence Against Indigenous Women, “Invisible Women: A Call to Action – A Report on Missing and Murdered Indigenous Women in Canada” (March 2014) (Chair: Stella Ambler) at 20. [39] Witness Protection Program Act, SC 1996, c 15. [40] Ibid at s 7(e). [41] Lyne Casavant & Christine Morris, “Legislative Summary of Bill C-51” (2013) at 2, online (pdf): Library of Parliament Legislative Summary <publications.gc.ca/collections/collection_2013/bdp-lop/ls/41-1-c51-eng.pdf>. [42] Lavallee 79, supra note 3 at para 16. [43] R v Lavallee, 2022 MBCA 100 at para 35 [Lavallee 100]. [44] Lavallee 100, supra Note 43 at para 21. [45] Ibid at para 34. [46] Ibid at para 11. [47] Ibid at para 34. [48] Ibid at para 37. [49] Ibid at para 45. [50] Ibid at para 42. [51] Ibid. [52] Elspeth Kaiser-Derrick, Implicating the System: Judicial Discourses in Sentencing Indigenous Women (Winnipeg: University of Manitoba Press, 2019) at 88.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.