The Right to Stay Silent in Civil Contempt

In criminal proceedings, the accused cannot be forced to testify. That well-known right is enshrined in section 11(c) of the Canadian Charter of Rights and Freedoms, which protects “any person charged with an offence” with the right “not to be compelled to be a witness in proceedings against that person in respect of the offence”. This does not apply in most civil and regulatory situations, where litigants and registrants can be forced to answer questions. However, there is at least one exception: civil contempt. 

In Sutherland Estate v Murphy, 2025 ONCA 227, the Court of Appeal for Ontario confirmed that the constitutional protection of section 11(c) extends to civil contempt proceedings. The decision addresses the intersection of civil and criminal law in that context and provides guidance for litigants seeking to prove contempt in civil cases.

Background of Sutherland Estate

The respondents sued the appellant for damages in relation to an allegedly fraudulent cryptocurrency scheme. The respondents obtained several forms of injunctive relief on motion, including an Anton Piller order[1] authorizing seizure of the appellant’s cell phones. When investigators executed the order, the appellant refused to turn over his iPhone and deleted the data on the iPhone.

The respondents obtained an order on motion requiring the appellant to attend examinations to answer questions about the location of assets and the deleted data. The motion judge directed the parties to return to court following their completion.

Following two initial examinations, the appellant consented to declarations of contempt based on his refusal to provide the iPhone to investigators and his deletion of its data. The motion judge declared the appellant to be in contempt of court on those two grounds. He also ordered him to attend further examinations. The appellant was then questioned by a data analyst retained by the respondents as an expert witness. Based on the evidence obtained, the analyst opined that the appellant must have preserved some data from his iPhone.

The parties returned to court again. The appellant — by this time unrepresented — did not testify. Relying on evidence from the appellant’s examinations and the opinion of the data analyst, the motion judge found the appellant to be in contempt of the Anton Piller order on a third ground: failing to produce the deleted data. The appellant was sentenced to five months in jail and ordered to return to court after the term of incarceration to determine potential further sanction.

The appellant retained a lawyer and appealed. On appeal, he argued his rights under section 11(c) of the Charter had been infringed when he was compelled to be examined.

At Appeal in Sutherland Estate

The Court of Appeal held that civil contempt proceedings have a “quasi-criminal nature” for constitutional purposes.  The civil contempt power was noted to be an important means by which courts enforce the rule of law and a fundamental feature of the administration of justice. Both are associated with broader societal interests. The Court of Appeal held that because a finding of contempt can result in imprisonment, it has “true penal consequences” sufficient to attract the protections afforded by section 11 of the Charter.[2]

The respondents advanced several arguments seeking to limit the application of section 11(c). All were rejected. First, the Court dismissed an argument that section 11(c) does not apply to civil contempt proceedings in which the predominant purpose was argued to be “coercion” rather than “punishment”. The Court characterized such a distinction as “largely unworkable”. Second, the Court rejected the submission that section 11(c) only applies to the liability stage of a contempt hearing; it found that it continues to apply until the final order or sentence is imposed.

The Court had little difficulty finding that the appellant’s section 11(c) rights were breached. It held that the appellant was “charged with an offence” when the contempt proceedings were commenced and that a breach of his Charter rights had occurred each time he was required to attend for an examination. It was only through those examinations that the respondents obtained the evidence relied on for the third, distinct act of contempt: the appellant’s failure to produce the deleted data.

The appeal was allowed, the finding of contempt based on the failure to produce the deleted data was set aside, and the Court directed that a new sentencing hearing take place. Notably, the Court placed no weight on the appellant’s failure to raise the issue of compellability before the motion judge. It commented that he had been unrepresented much of the time and that it was the responsibility of the judge to identify the Charter issue.

Takeaway

In deciding what, if any, action to take in response to the breach of a court order, there are several important considerations highlighted by this decision. First, due to the quasi-criminal nature of civil contempt proceedings, the person alleged to be in contempt will be afforded significant constitutional protections, including the right not to answer questions.  Second, proving contempt will need to be accomplished without any compelled evidence from the other side. Each of the requisite elements — including intent — will need to be proven beyond a reasonable doubt without forced admissions through any compelled examination.[3]

[1] An Anton Piller order is an extraordinary form of injunctive relief obtained without notice to the other side. It requires a defendant to allow entry onto its property for the search and seizure of evidence and records. The purpose is to ensure the preservation of evidence that might otherwise be destroyed.

[2] Section 11 of the Charter can be invoked where the proceedings are “criminal in nature” or where they may lead to the imposition of “true penal consequences”, such as imprisonment or a “fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large”: John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6 at para 27.

[3] To establish civil contempt, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must be clear and unequivocal; (2) the alleged contemnor must have knowledge of the order; and (3) the alleged contemnor must have intentionally breached the order: Perley-Robertson, Hill & McDougall LLP v Eureka 93 Inc., 2025 ONCA 95 at para 19.