Charter rights in civil contempt: Ontario says yes, Alberta says no

Section 11 of the Canadian Charter of Rights and Freedoms (the Charter) affords protections to persons "charged with an offence." But does s. 11 of the Charter apply to civil contempt proceedings in Alberta? We recently published an update regarding the Ontario Court of Appeal (ONCA) decision in Sutherland Estate v Murphy, 2025 ONCA 227, where the ONCA concluded that s. 11(c), the section which protects persons from being compelled to testify against themselves, applies to civil contempt proceedings.

Just nine months later, the Alberta Court of Appeal (ABCA) in Lymer v Jonsson, 2025 ABCA 423 reached a different conclusion. In its decision, the ABCA held that s. 11(b), which guarantees the right to be tried within a reasonable time, does not apply to civil contempt proceedings not involving a state actor.

Background

The appellant, Neil Alan Lymer (Lymer), was involved in an investment scheme in breach of the Alberta Securities Act. Lymer was an undischarged bankrupt and was the subject of lengthy bankruptcy proceedings. On November 6, 2014, the registrar in bankruptcy found Lymer in civil contempt for swearing a false affidavit of records and failing to comply with orders requiring him to disclose relevant and material records.

In February 2017, the registrar found that Lymer, despite filing a series of Affidavits of Records and responding to written questions, had failed to make full disclosure and remained in contempt of the previous orders. A sanctions hearing was held in April 2018, and Lymer was sanctioned to a 30-day term of incarceration for contempt. On May 1, 2020, the Court of Appeal set aside the sanction on the basis that Lymer had not received a full and fair hearing, with the ability to testify under oath, before the sanction was imposed. The matter was remitted back to the trial court for a new hearing before a different judge.

On November 16, 2022, a newly appointed case management judge ordered Lymer to deliver further documents and be questioned. Questioning occurred on January 25, 2023 and March 21, 2023, and Lymer delivered some of the ordered documents in February and March 2023. No judicial determination has been made of the adequacy of those documents and responses.

On June 28, 2023, Lymer applied for a stay of the contempt proceedings, alleging that his right under s. 11(b) of the Charter to be tried within a reasonable time had been violated. Lymer argued that the time limits established by the Supreme Court of Canada in R v Jordan, 2016 SCC 27, should apply to the sanctioning phase of civil contempt proceedings. The case management justice dismissed the application, and Lymer appealed.

Analysis of the Alberta Court of Appeal

The ABCA dismissed the appeal, holding that s. 11(b) of the Charter does not apply to civil contempt proceedings that do not involve a state actor. The ABCA concluded that the Charter, and specifically s. 11, is directed at government action and does not impose constitutional duties on private parties in civil contempt proceedings.

The ABCA relied on the foundational principle from RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, that the Charter does not apply to private litigation divorced completely from any connection with government. Section 32 of the Charter specifies that the Charter applies to the legislative, executive, and administrative branches of government, not to private parties. Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right.

This does not mean that civil contempt proceedings are devoid of procedural protections. The ABCA acknowledged that civil contempt proceedings are quasi-criminal in nature and that certain procedural protections apply due to the potential penal consequences, including the possibility of imprisonment. However, the ABCA emphasized that these protections arise from the common law, both historically and as interpreted in light of the Charter, rather than through the direct application of s. 11. These established common law protections include the right not to be compelled to testify, the right to a full and fair hearing with the right to retain and instruct counsel, and the requirement that contempt be established beyond a reasonable doubt.

The ABCA also held that concerns about delay in civil contempt proceedings can be adequately addressed through the Rules of Court and the doctrine of abuse of process, making it unnecessary to expand the application of s. 11(b) to civil contempt.

Further, the ABCA noted that it is improper for contemptors to complain about delays arising from their own unsuccessful attempts to purge their contempt, the timing and success of which are within their control.

Divergence from Sutherland Estate v Murphy, 2025 ONCA 227

The ABCA expressly disagreed with the ONCA's conclusion in Sutherland Estate v Murphy, 2025 ONCA 227. In Sutherland Estate, the ONCA held that s. 11(c) of the Charter, which protects against self-incrimination, applies to civil contempt proceedings. The Ontario Court reasoned that because civil contempt bears "the imprint of criminal law," has true penal consequences including potential imprisonment, and involves a public dimension "intimately linked to the rule of law and the preservation of social order," a person facing a contempt allegation is "charged with an offence" for purposes of s. 11.

The key divergence between the two decisions lies in the source of procedural protections afforded to alleged contemnors. In Sutherland Estate, the ONCA held that protections arise directly from s. 11 of the Charter because civil contempt proceedings engage public interests and carry potential penal sanctions. The ONCA cited Vidéotron Ltée v Industries Microlec Produits Électroniques Inc, [1992] 2 SCR 1065, as establishing that s. 11(c) applies to civil contempt proceedings.

By contrast, in Lymer, the ABCA held that protections in civil contempt proceedings arise from the common law, historically and in light of the Charter, rather than from the direct application of s. 11. The ABCA emphasized that the Sutherland Estate decision did not address the Supreme Court of Canada’s Dolphin Delivery line of authority, which holds that the Charter should not be expanded to proceedings that do not involve a government or other state actor. Since there is no state actor responsible for prosecuting civil contempt proceedings arising out of private litigation, there is no party whose actions could be measured against s. 11(b) of the Charter.

The Alberta Court also disagreed with the Ontario Court's interpretation of Vidéotron, noting that the majority in that case did not conclude that a person facing civil contempt is "charged with an offence" for purposes of s. 11; only Chief Justice Lamer, in concurrence, took that view.

Implications

The ABCA's decision in Lymer creates a notable split with the ONCA's decision in Sutherland Estate regarding the application of s. 11 Charter protections to civil contempt proceedings. While both courts agree that procedural protections apply in civil contempt proceedings due to their quasi-criminal nature, they fundamentally disagree on the source of those protections. Alberta maintains that the protections derive from the common law as interpreted consistently with Charter values, whereas Ontario holds that s. 11 of the Charter directly applies.

This divergence has practical implications for litigants involved in civil contempt proceedings. In Ontario, following Sutherland Estate, persons facing allegations of civil contempt may invoke s. 11(c) protections against testimonial compulsion. In Alberta, following Lymer, contemnors cannot rely on s. 11(b) to argue that the Jordan time limits apply to sanction proceedings. Instead, any delay concerns must be addressed through the Rules of Court or the doctrine of abuse of process.

This interprovincial divergence may require resolution by the Supreme Court of Canada to establish a uniform national approach to Charter rights in civil contempt proceedings.