A. Introduction
In Paramount Fine Foods v Johnston,[1] the Ontario Superior Court of Justice (the “Court”) sentenced the defendant, Kevin J. Johnston (“Johnston”), to 18 months in prison for six acts of contempt arising from his breaches of a permanent injunction. This decision demonstrates that Ontario judges are not reluctant to impose severe penalties for contempt and that there is no reluctance to sentence first-time contemnors to prison. Moreover, this decision also demonstrates the serious consequences of a party breaching an injunction preventing him from making defamatory publications about another party.
B. The Underlying Action
In the underlying action, the plaintiffs, Mohamad Fakih and his company, Paramount Fine Foods (“Paramount”), sued the defendants for defamation. They sought damages and a permanent injunction due to xenophobic and other hateful statements published by Johnston on, among other things, the website and co-defendant, Freedomreport.ca.
The plaintiffs moved for summary judgment on their claims. On May 13, 2019, the Superior Court held Johnston and Freedromreport.ca liable for defamation and awarded damages of $2.5 million. The Court also granted a permanent injunction (the “Permanent Injunction”) against Johnston and Freedomreport.ca, restraining them from, among other things, making defamatory statements about the plaintiffs.
C. The Contempt Finding
Despite the Permanent Injunction, Johnston continued to publish xenophobic and other hateful statements about the plaintiffs, including that Mr. Fakih is a baby killer and terrorist funder, on social media and his internet broadcast show. The plaintiffs brought a contempt motion. The Court found that Johnston’s conduct constituted breaches of the Permanent Injunction and held him liable for six acts of contempt.
D. The Sentencing Decision
The Court sentenced Johnston to prison for a consecutive term of 18 months (three months for each act of contempt). Johnston was ordered to return to Court after 15 months of his sentence to allow the Court to consider varying Johnston’s sentence based on Johnston’s acts to purge his contempt between the date of the sentence and the expiration of the 15-month prison term.
The Court applied the traditional civil contempt sentencing principles in fashioning its sentence, which principles overlap with criminal law sentencing principles. The Court determined that the case called for a significant sentence proportional to the harm inflicted on the plaintiffs and society by Johnston’s repeated and intentional defiance of the court order. In arriving at its decision, the Court emphasized the following factors: (1) Johnston’s repeated and deliberate defiance of court orders, including his continuing failure to comply with the Permanent Injunction or pay judgments and costs awarded against him; (2) Johnston’s failure to show contrition; (3) Johnston’s failure to purge his contempt by removing the offending material from the internet; (4) the need to protect the public from Johnston’s conduct; and (5) Johnston’s use of hate speech and his statements undermining the rule of law called for significant general deterrence.
E. Conclusion
An 18-month sentence for contempt, particularly for the first breach of an order, is a severe sentence. Traditionally, prison sentences for first contempt findings were rare. However, in the past ten years, Ontario courts have demonstrated a willingness to impose prison sentences in egregious cases of contempt, even for first-time offenders. Nonetheless, 18 months is very lengthy for a prison sentence for contempt, regardless of the context. Prison sentences for contempt more commonly range from three to six months. The ruling in this case reflects Johnston’s outrageous conduct and defiance of court orders.
This decision also shows the benefit of a plaintiff obtaining a permanent injunction against a defendant found liable for defamation. While there is a very high threshold to obtain an injunction before trial in a defamation matter, and such injunctions are rarely granted, it is easier to obtain an injunction after trial once a finding of defamation has been made. The plaintiff is required to demonstrate that the defendant will likely continue to publish defamatory material or will be unable to pay the damages awarded. In this case, obtaining an injunction was important because Johnston would not stop his defamatory campaign. Although the plaintiff has to expend the time and money to enforce the injunction, it gives the plaintiff, as demonstrated in this case, the ability to have serious and significant punishment imposed to stop the defamation.
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About the Authors:
Brian Radnoff is a Partner in Dickinson Wright’s Toronto office. He can be reached at 416-777-4046 or bradnoff@dickinsonwright.com.
David Seifer is an Associate in Dickinson Wright’s Toronto office. He can be reached at 416-646-6867 or dseifer@dickinsonwright.com.
