The “Jump” Principle

A deliberate breach of an injunction restraining illegal practice deserves significant sanction. Such conduct is contempt of court. However, determining the severity of the sanction is challenging as was demonstrated in Law Society of Alberta v Beaver, 2021 ABCA 163 (CanLII),

Despite an injunction, Mr. Beaver continued to practise law for many months. However, he concealed this by using a new lawyer to “front” his actions. When the regulator began investigating his continued practise, he concealed his actions by destroying documents and creating false ones. He also encouraged his “fronting” lawyer to provide false information.

The lower court imposed a sanction of incarceration for one year. Mr. Beaver appealed on several grounds. The Court of Appeal held that the finding of contempt of court was well founded and that the finding that Mr. Beaver was not credible and that his apology was insincere was unassailable.

However, the Court did conclude that the order for a one-year period of incarceration disregarded some mitigating factors and failed to employ the principle of “laddering” sanctions gradually to give the practitioner opportunities to change their behaviour before receiving a very serious sanction:

We conclude that the chambers judge erred in arriving at the sanction of one year incarceration. On assessing mitigating factors it is an error to wholly reject, as opposed to properly weigh, those factors advanced by Mr Beaver. As noted above, these are accepted every day in criminal courts: Mr Beaver’s personal circumstances, character, current lifestyle, promise to change his behaviour, and the effect of imprisonment on his family. Additionally, it is too great a “jump” to impose a first-time incarceration of one year. We conclude that this term of incarceration is out of the range that should be considered reasonable and proper for Mr Beaver’s civil contempt. Taken as a whole, these conclusions constitute an error in principle, and we find they did have an impact on the sanction imposed, such that it was, in context, demonstrably unfit.

The Court ordered a 90-day period of incarceration to be served on weekends, along with 200 hours of community service so that the sanction was more proportional to those ordered in analogous cases.

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