Imprisonment for Breach of a Court Order

It is rare that a term of imprisonment is given for breach of a Court Order, such as an injunction. The Federal Court issued an Anton Pillar order in a case of copyright infringement involving a pirate IPTV streaming service. After the persistent refusal of the defendant to comply, the Court was forced to consider a term of imprisonment as an inducement to seek compliance with its orders.

Since such enforcement action is fairly rare in copyright infringement cases, the Court reviewed the options for enforcing contempt of Court in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378.

The Federal Court reviewed the authorities on enforcing Court Orders for contempt of Court.

The principal objective of the law of civil contempt is to foster compliance with court orders^[1]: This is essential to maintaining public confidence in the administration of justice, supporting the rule of law, and ensuring that ‘social order prevails rather than chaos’:^[2]

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Despite the compliance focus of proceedings for civil contempt, ‘one purpose of sentencing for civil contempt is punishment for breaching a court order’:^[3]

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In cases of civil contempt, the usual principles of sentencing developed in the criminal contempt context apply:^[4]

The Federal Court noted that in considering the gravity of the contempt, “both ‘the objective gravity of the contemptuous conduct [and] the subjective gravity of the conduct (i.e., whether the conduct was a technical breach or a flagrant act with full knowledge of its unlawfulness)’”.^[5]

The Federal Court noted sentences for similar breaches of a Court Order, as well as the exacerbating and mitigating factors suggested by the authorities.

The Court noted that terms of imprisonment were very rare in copyright Contempt of Court cases and drew the following principles from the cases:

(a) In a case involving denying access to premises and active efforts to frustrate the enforcement of the Court Orders and three contempt convictions, the FCA upheld a sentence of 6 months’ imprisonment plus 400 hours of community service.^[6]

(b) A Court imposed a fine of $100,000 and a term of imprisonment of not less than 6 months, and then continuing for up to 5 years less one day, until the defendants (i) purged their contempt by demonstrating compliance with the injunctive and mandatory terms of this Court’s judgment, and (ii) paid in full all damages, fines and costs owing under the initial judgment and her penalty order.^[7]

(c) In a case where the defendant deliberately flouted the Court’s injunction, never expressed any regret or apology and resisted numerous efforts to resolve the dispute, the Court sentenced the individual defendant to pay a fine and to serve a 6-month term of imprisonment.^[8]

It was noted that these cases were not in the context of an Anton Pillar order, so the Court reviewed Ontario authorities involving imprisonment for contempt of Court of an Anton Pillar order. It was clear that there was an active IPTV piracy audience that was closely following the development in these cases and that the punishment had failed to deter the defendants in the instant case.

The Court weighed the defendant’s conduct in light of the authorities and noted that “IPTV piracy continues in the face of several penalty orders that have sought to deter it weighs in favour of greater penalties than have been imposed in the past.”^[9]

The Court found aggravating factors can include the “duration of the conduct, its scale and scope, the extent of premeditation and deliberation involved, whether the conduct was motivated by greed, whether it continued after being found to constitute contempt, prior findings of contempt, whether the contempt was flagrant, lack of remorse, untruthfulness, whether the conduct provided the defendant with the opportunity to destroy evidence or move evidence or funds beyond the reach of the court, and whether the contemnor displayed blatant disregard for the rule of law”.^[10]

The Court found that all of the aggravating factors existed, other than prior findings of contempt.

The Court found the defendants displayed open disregard for the rule of law and this Court. “Right from the day of the attempted execution of the Interim Order, they have attempted to take the law into their own hands by deciding when and under what circumstances they will comply with various provisions of the Interim Order, if at all.”

The Court found that almost none of the factors that might mitigate the Court’s discretion existed, such as whether the contempt in question is a first offence, and whether the offender has apologized, accepted responsibility, made good faith attempts to comply, or taken steps towards rehabilitation.

After weighing all of the factors, the Court imposed a sentence against the indivdual defendants for the past non-curable and curable contempt of the Interim Order is four and six months’ imprisonment, respectively, and that the appropriate penalty for their ongoing contempt would be for them to remain in prison for a total period of up to five years less one day or until they cure that contempt, whichever comes first.

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^[1] See Carey v Laiken, 2015 SCC 17 at para 30; Bell Canada v Adwokat, 2023 FCA 106 at para 18, cited in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 46.

^[2] See Morasse v Nadeau-Dubois, 2016 SCC 44 at para 81; Canada (Minister of National Revenue v Bjornstad, 2006 FC 818 at para 4; see also Canada (Human Rights Commission) v Canadian Liberty Net (CA), [1996] 1 FC 787 at 796 (CA); United Nurses of Alberta v Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 SCR 901 at 931, cited in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 46.

^[3] See Carey v Laiken, 2015 SCC 17 at para 31, citing Chiang (Trustee of) v Chiang, 2009 ONCA 3, 305 DLR (4^th) 655 at para 117; see also United Nurses at 931; Echostar Communications Corp v Rodgers, 2010 ONSC 2164 at para 37, Canadian Standards Association v PS Knight Co Ltd, 2021 FC 1346 (CanLII) at para 13, all cited in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 47.

^[4] See Tremaine v Canada (Human Rights Commission), 2014 FCA 192 at para 19; Professional Institute of the Public Service of Canada v Bremsak, 2013 FCA 214 at para 35, cited in Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 48.

^[5] See Tremaine v Canada (Human Rights Commission), 2014 FCA 192 at para 23; Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 50.

^[6] See Lari v Canadian Copyright Licensing Agency, 2007 FCA 127.

^[7] See Canadian Standards Association v PS Knight Co Ltd, 2021 FC 1346 (CanLII)

^[8] See Telewizja Polsat SA v Radiopol Inc, 2006 FC 137.

^[9] See Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at para 89.

^[10] See Bell Media Inc. v. Marshall Macciacchera (Smoothstreams.tv), 2025 FC 1378 at paras 55 and 99.