The Canadian constitution protects a person charged with a criminal offence from being required to testify against themselves. This protection is found in section 11(c) of the Canadian Charter of Rights and Freedoms (the “Charter”), which provides that “any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.”

Does this section of the Charter apply in the context of civil contempt proceedings?

Case Involved an Allegedly Fraudulent Cryptocurrency Scheme

The case of Sutherland Estate v. Murphy concerned an action brought against the appellant for his alleged involvement in a fraudulent cryptocurrency scheme. Various orders were issued against him, including an Anton Piller order. In January 2023, pursuant to that order, investigators searched a residence for specific items. The appellant refused to hand over his cell phone and later deleted data from that phone.

The following day, the respondents sought to have the appellant declared in contempt of the order. They also sought to have the motion judge order him to attend examinations for discovery, “where he would be asked about the location of assets, including the data.” The judge agreed. In total, through various court appearances, the appellant was compelled to attend five separate examinations for discovery. During one such examination, under questioning by the respondents’ data analyst expert witness, the appellant explained how he had “airdropped” data onto his girlfriend’s phone before moving some of the data back onto his own. In his evidence, the analyst explained he had found no evidence of this on either the appellant’s phone or the appellant’s girlfriend’s phone and, in his opinion, this explanation was not true.

The motion judge ultimately found the appellant in contempt of the order for refusing to surrender his iPhone, for engaging in “destruction and deletion of data” on that phone and for failing to produce the data that had been deleted. He was sentenced to serve a five-month term of incarceration.

The appellant appealed on various grounds, most notably on the basis that the contempt proceedings infringed his section 11(c) rights under the Charter.

Court of Appeal Finds Section 11(c) of Charter Applies to Civil Contempt Proceedings

The Court of Appeal reviewed the general nature of the civil contempt power of courts, noting that court orders “are not suggestions” but are “binding directives” that must not be disobeyed. Civil contempt proceedings are similar in many respects to criminal proceedings, including the fact that they can result in imprisonment and thus have penal consequences. A person facing an allegation of contempt is presumed innocent, and contempt must be proved on the criminal standard of proof beyond a reasonable doubt.

Because civil contempt proceedings bear both “public and penal dimensions,” section 11(c) of the Charter applies to them. Further, since the protections under section 11 are available to “persons prosecuted by the State for public offences involving punitive sanctions,” a person alleged to be in contempt is “charged with an offence” for the purpose of that section.

The Court noted that section 11(c) of the Charter does not preclude all kinds of compulsion. Instead, it only prohibits “testimonial compulsion” or “the compulsion to speak.” This does not mean that a person cannot be required to produce tangible evidence or attend court. The Court stressed the importance of guarding against a compulsion of speech that “results in the creation of evidence that did not previously exist.”

Court of Appeal Rejects Argument That Section 11(c) of the Charter Does Not Apply Where the “Predominant Purpose” of the Contempt Proceeding is Coercive

The respondents argued that section 11(c) of the Charter does not apply where the “predominant purpose” of the hearing is coercive. They argued that the contempt proceeding in this case was to locate “missing assets” rather than punishment.

The Court of Appeal found that, while such a distinction may be important for other purposes, it does not affect section 11(c). This conclusion was based upon four reasons:

1. “Contempt is contempt” and “compulsion is compulsion”;
2. The distinction between coercion and punishment is unworkable since it would be difficult to determine a bright line between those two objectives;
3. Even where coercion is the objective, there is still a threat of punishment; and
4. The possibility of “coerced compliance” will not always be clear, especially in the “digital realm”, where data can be permanently destroyed.

Court of Appeal Finds Section 11(c) of the Charter Also Applies to Sentencing

The Court of Appeal concluded that, while different subsections of section 11 of the Charter apply differently depending on the context, section 11(c) applies at both trial and sentencing. This is because, just as individuals cannot be required to “convict themselves with their own words,” neither should they have to assist another party “in seeking a harsher penalty.” According to the Court of Appeal, compelled testimony “undermines dignity and autonomy” in the context of sentencing as much as in trial.

Court of Appeal Remits Case Back to Superior Court for Sentencing Hearing

Ultimately, the Court of Appeal found that the appellant had been compelled to attend five different examinations for discovery after contempt proceedings had begun, and his section 11(c) rights had been violated each time.

The Court of Appeal also found that the motion judge had erred in assuming that if the respondent had been guilty of the first two acts of contempt, guilt for the third must follow. As the Court noted, proof of one act of contempt “cannot serve as proxy for proof of another.” Each allegation of contempt had to be proved beyond a reasonable doubt. The Court of Appeal observed that the respondent could only have intentionally failed to produce the data if it existed “in a form that could be produced.” In reviewing the evidence put before the motion judge, other than the testimony compelled from the respondent, the Court found that the evidentiary basis for finding contempt for this failure was missing.

As such, the finding of contempt for failing to produce the data was set aside, and the matter was remitted back to the Superior Court of Justice for a sentencing hearing on the first two acts of contempt.

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