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This question is prompted by the story of Tommy Gregory Thompson who has just been released from nearly 10 years of incarceration for civil contempt (and starting 2 years for criminal contempt).

He claims he suffers from a rare form of chronic fatigue syndrome that has created problems with short-term memory, and does not know the answer to the questions. The government contends Thompson is refusing to cooperate and that there’s no connection between his ailment and his ability to answer to the question.

If this was a criminal trial I think the finder of fact would have to have no reasonable doubt that Thompson could answer the question before a custodial sentence could be applied. If this was a question of finding the result of a civil trial then the finder of fact would have to have only a greater than 50% chance that they are liable.

What level of certainty must a finder of fact in a civil case that someone deserves to be incarcerated for contempt in a civil proceeding?

User65535
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3 Answers3

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In Colorado, the burden of proof for contempt of court depends on the type of sanctions sought. For remedial sanctions, the burden of proof is "by a preponderance of the evidence" that applies to civil cases. For punitive sanctions, the burden of proof is "beyond a reasonable doubt" that applies to criminal cases. See, e.g., here.

Remedial sanctions impose a penalty (usually either incarceration or a fine that accrues on a daily basis) until the party held in contempt complies with a court order which the court determines is within the power of the person held in contempt to comply with. Usually, it involves failure to turn over funds or failure to testify.

The Tommy Gregory Thompson case is a remedial contempt case (although it isn't in Colorado so different state law burdens of proof could apply).

Punitive sanctions impose a penalty for disruptive conduct in the courtroom or disobeying a court order, which is over and done with, to punish someone for doing so. It is basically a misdemeanor charge with a different set of procedural rules than the usual criminal charge, the constitutional rights that criminal defendants have in criminal proceedings are still protected in this satellite proceeding related to a civil case.

ohwilleke
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Schmidt v. Fraser Health Authority, 2015 BCCA 72 at para 15:

Civil contempt is not a purely civil matter. As this Court said in Hama v. Werbes, at para. 8, “[i]t is well established that civil contempt of court proceedings are quasi-criminal in nature and that the standard of proof is proof beyond a reasonable doubt.” The proposition is well-supported by jurisprudence from the Supreme Court of Canada [citations omitted]

Jen
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There is no such civil offence

Whether contempt of court occurs in a criminal or a civil trial, contempt in the face of the court is always a summary offence (what Americans would call a misdemeanour) and subject to the criminal standard of beyond reasonable doubt.

Dale M
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