LAW SOCIETY OF ALBERTA v BEAVER, 2021 ABCA 163
WATSON, PENTELECHUK AND FEEHAN JJA
10.52: Declaration of civil contempt
The Applicant disbarred lawyer appealed a Judgment and a sanction for civil contempt. A Chambers Judge had found him in civil contempt of Court for breaching an Injunction prohibiting him from providing legal services. In a separate Decision, the Applicant was imposed a sanction of one year in jail.
The Court noted that determining the appropriate sanction for civil contempt involves the exercise of discretion and that the standard of review is reasonableness. Civil contempt is quasi-criminal in nature and must be proven beyond a reasonable doubt. However, an Appellate Court should not find a verdict unreasonable simply because, on its own review of the evidence, it has a reasonable doubt. It is not the role of an Appellate Court to reweigh the evidence and retry the case.
The Applicant had two arguments on Appeal of the Judgment: 1) that the Injunction was interlocutory and expired when his status changed from suspension to disbarment such that his actions post-disbarment were not in violation of the Injunction; and 2) the Chambers Judge’s findings on credibility were unreasonable. The Court found that the Applicant was not prejudiced by the Injunction being in effect permanent. The Applicant’s status change from suspended to disbarred did not affect his legal authority to practice law. The Court also found that the Chambers Judge’s findings on credibility were reasonable and well supported by the evidence.
The Applicant asked that the Court consider the issue of proportionate sanction and review the aggravating and mitigating factors for the reasonableness of the sanction imposed upon him. The Court found that the Chambers Judge’s findings that the Applicant was deliberately and repeatedly engaging in contemptuous conduct was deserving of deference. However, it was an error in principle to wholly reject the mitigating factors of the Applicant’s personal circumstances, character, current pro-social lifestyle, evidence of a changed attitude, realization of a need to change his behaviour, and effect of imprisonment on his family. The Court noted that these mitigating factors are considered during sentencing in the criminal Courts and cannot be wholly rejected.
The Court dismissed the Appeal from the finding of civil contempt, but allowed the Appeal from the sanction. The original jail sentence was replaced with a sentence of 90 days to be served intermittently on weekends plus a period of probation.View CanLII Details