Key Takeaways
In Sutherland Estate v. Murphy, 2025 ONCA 227, the Court of Appeal for Ontario recently reaffirmed that the protection against compelled testimony contained in section 11(c) of the Charter of Rights and Freedoms (the "Charter") applies to civil contempt proceedings. The Court of Appeal held that section 11(c) is engaged as soon as a party launches contempt proceedings and the protection from testimonial compulsion extends until the proceedings conclude, including any sentencing proceedings. Proceedings for contempt must clearly delineate the charges, which the moving party must prove on the criminal standard of proof (i.e., proof beyond a reasonable doubt). Litigants seeking to hold an adverse party in contempt should be mindful of this decision to ensure that parties are not improperly compelled to testify against themselves. Moreover, the Court of Appeal cautioned that litigants and courts should treat the civil contempt power as a last resort, and not use it merely to obtain compliance with a court order.
Background
In the underlying action, the Respondents allege that the Appellant ran a fraudulent cryptocurrency scheme. The Respondents obtained interim injunctive relief, including an Anton Piller order authorizing seizure of the Appellant's cell phones. The Appellant refused to turn over one of his phones when the Respondents attempted to execute the Anton Piller order and deleted the data from the device the next day.
The Respondents moved to have the Appellant found in contempt of the Anton Piller order (a civil seizure order) and to compel the Appellant to attend examinations for discovery to, among other things, answer questions about the data on the cell phone that he had refused to surrender. The Motion Judge ordered that the Appellant attend further examinations. At the examinations, the Respondents' digital investigator questioned the Appellant about what had happened to the underlying cell phone data.
Following these examinations, the parties returned before the Motion Judge and the Appellant consented to declarations of contempt on two bases: first, that he had refused to surrender his cell phone and second, that he had deleted the phone's data. The Appellant did not testify on the contempt hearing, but had an exchange with the judge in court in which he stated that he could not access the deleted data anymore. The Motion Judge found the Appellant liable for contempt on the two bases the Appellant had admitted, but also found him liable for contempt for failing to produce the deleted data.
The Motion Judge sentenced the Appellant to five months of incarceration with no prospect of earned remission or early release. The Motion Judge ordered the Appellant to return before the court after he was released from incarceration if he had not produced the deleted data, so that the court could determine whether further sanctions were warranted.
The Court of Appeal's Decision
The Appellant raised various grounds of appeal, including that the contempt proceedings infringed his rights under section 11(c) of the Charter.
Writing for the court, Pomerance J.A. described the civil contempt power as a fundamental feature of the administration of justice and rule of law. Justice Pomerance referred to the Supreme Court's statement in Pro Swing v. Elta Golf Inc., 2006 SCC 53 ("Pro Swing"), that civil contempt "bear[s] the imprint of criminal law." As civil contempt proceedings can carry penal consequences, a person against whom contempt proceedings are brought is a person "charged with an offence" and section 11(c) of the Charter (the right not to be compelled to testify against oneself) is engaged.
Justice Pomerance clarified that section 11(c) is engaged as soon as a party brings an allegation of contempt before the court. Section 11(c) continues to protect alleged contemnors from compelled testimony until the end of the sentencing hearing, even if the contemnor admits to contempt. A party facing an allegation of contempt cannot be compelled to speak at their own contempt proceedings. However, section 11(c) only applies to compelled testimony. It does not relieve a party of its obligations to attend court or produce non-testimonial evidence, such as tangible evidence or pre-existing statements.
The Court of Appeal rejected the Respondents' argument that section 11(c) does not apply when the purpose of the contempt hearing is to coerce the respondent into complying with an order, rather than punishing them for non-compliance. Justice Pomerance noted several difficulties with this argument, including that it is contrary to the Supreme Court's decisions in Pro Swing and Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 SCR 1065, and held that section 11(c) is engaged in either scenario.
Justice Pomerance also commented on the appropriate use of the civil contempt power. The power, which Pomerance J.A. likened to a "sledgehammer", "should not be wielded when a mallet or lesser instrument might do." Parties and courts should treat the civil contempt power with restraint and not use it solely to obtain compliance with court orders. Where the power is used, the court needs to afford the party facing the charges with procedural fairness. Justice Pomerance noted that the proceedings below lacked formality and did not clearly delineate the charges of contempt. In addition, though they occur in the context of a civil proceeding, allegations of contempt must be proven beyond a reasonable doubt.
Justice Pomerance held that each of the examinations that the Motion Judge compelled the Appellant to attend infringed his section 11(c) rights. While the Appellant had conceded that he was in contempt with respect to two charges, Pomerance J.A. found that there was insufficient proof of the third finding of contempt, that the Appellant had intentionally failed to produce the data. The Respondents called an expert witness to testify about the cell phone data, but this witness was also the Respondents' investigator on the Anton Piller order, and Pomerance J.A. noted his independence was not probed on the motion. Further, the witness's opinion was based on speculation about what "could" have happened to the data, rather than on evidence of what actually happened.
The Court of Appeal set aside the finding of contempt for failure to produce the deleted data and set aside the sentence. At the time of the appeal, the Appellant had served 40 days in jail and asked the Court of Appeal to impose a sentence of time served. Instead, the Court of Appeal ordered a new sentencing hearing.
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