Jail for Dunlop?; Ex-city cop finds out this month if he'll go behind bars for contempt

Cornwall Standard Freeholder

05 February 2008  

Posted By Trevor Pritchard

It's a little-known legal distinction, and one that some lawyers suggest should be abolished, but it could influence the length of time - if any - that Perry Dunlop spends behind bars.

The former city police officer, who has staunchly refused to testify at the Cornwall Public Inquiry, should learn this month if he will be found guilty for the second time in three months on contempt of court charges.

Inquiry lawyers have argued to the Ontario Divisional Court that Dunlop - who has already been found guilty of civil contempt after he refused to take the stand last fall - should now face criminal contempt charges for publicly stating he had no intention of obeying a court order to return in January.

The commission believes that unless Dunlop agrees to testify, he should serve jail time for the potential damage his refusals have done to the administration of justice in Canada.

"That will be for the court to decide," said Peter Engelmann, lead commission counsel. "It really depends on . . . whether there are aggravating factors, whether there are mitigating factors."

As the man who launched his own investigations into historical abuse allegations in the Cornwall area, Dunlop is considered by many to be one of the inquiry's most sought-after witnesses.

After he refused to take the stand in September and October 2007, a panel of three divisional court justices found Dunlop guilty of civil contempt in November. He was ordered to return to the inquiry on Jan. 14.

Dunlop subsequently told reporters he had no intention of following the order, and was absent when his name was called at the Weave Shed that day.

That public defiance could boost the charge the divisional court will be delivering this February to criminal contempt - although it's unclear what impact that will have on his sentence, according to Stephen Pitel, a law professor at the University of Western Ontario.

The "general orthodoxy," said Pitel, is that civil charges are reserved for securing compliance with a procedural matter - say, one lawyer failing to deliver an important document in a timely fashion. Criminal contempt, on the other hand, exists to punish conduct that brings the authority of the entire justice system into disrepute, Pitel said.

"In a sense (the Dunlop case) has elements of both," he said. "It relates to the court managing its process, but it also relates to the court's system of justice."

While fines and jail sentences can be imposed for both types of contempt, they're generally stricter when the contempt is criminal in nature, said Pitel.

But both charges, he added, typically also offer the opportunity for the guilty party to "purge" their crime - so if the divisional court ordered Dunlop again to return to the inquiry, and this time he agreed, the only difference would be in the semantics.

While judges have handed down mandatory sentences for criminal contempt in the past, without the chance to purge, it's not a very common practice, Pitel explained.

"The courts, historically, don't like punishing for contempt," he said. "They do it very reluctantly."

After Dunlop failed to show for the Jan. 28 divisional court hearing in Toronto, a bench warrant was issued for his arrest.

The divisional court did not sentence Dunlop for the first contempt charge, nor did it deliver a verdict on the second, as it wanted Dunlop to be there to explain his actions.

Inquiry blogger Sylvia MacEachern, who was at that hearing, said it was the first she'd heard of the two different types of contempt charges.

She said the commission's arguments that Dunlop aggravated his contempt charges by speaking to reporters didn't make sense.

"I look (at that line of reasoning) and say I don't understand because he said the same thing on the stand at the inquiry," said MacEachern. "What he said to the media is no different."

Given the similarities between the two charges, Pitel said some legal experts have questioned whether a "unified" approach to contempt would be better off for Canada's 21st century legal system.

However, Pitel said there are some cases where the distinction does make a difference: Canadian authorities cannot enforce criminal contempt charges that have been laid by other countries, for instance, although they can enforce civil orders.

"The distinction between civil and criminal contempt . . . would be towards the arcane end of the scale," he said.

"It's not always the easiest distinction to make sense of."