Ontario Court of Appeal rules on compelled testimony in civil contempt proceedings

Section 11(c) of the Canadian Charter of Rights and Freedoms (the “Charter”), in tandem with the other Charter provision, protects persons “charged with an offence” from being compelled to testify against themselves. But does s. 11(c) of the Charter apply to civil contempt proceedings? Is a person subject to civil contempt proceedings provided protections against self-incrimination through compelled testimony?

The Ontario Court of Appeal in Sutherland Estate v. Murphy, 2025 ONCA 227 considered these questions. In its decision, the Court confirmed that s. 11(c) Charter rights apply to civil contempt proceedings and protects persons from being compelled to testify against themselves.

Background

The respondents brought an action against the appellant, Colin Murphy (“Murphy”), for his alleged involvement in a fraudulent cryptocurrency scam. At the motion judge level, the respondents obtained several forms of injunctive relief, particularly a Mareva Injunction and an Anton Piller order.

During the execution of the Anton Piller order, the investigator located a cellphone belonging to Murphy. Murphy refused to surrender his phone and later deleted the data. As a result, the respondents moved to have Murphy declared in contempt of the Anton Piller order and requested an order to have Murphy attend examination for discovery where he would be asked about the location of assets, including the data on his phone.

Murphy consented to declarations of contempt based on his refusal to provide his cell phone to investigators and deleting the data on his cell phone. These findings of contempt are non-controversial. Murphy was ordered to attend further examinations under oath.

Following these examinations, the motion judge found Murphy liable for contempt on a further basis: the failure to produce the deleted data from his cell phone. This was despite Murphy advising the motion judge that he could no longer access the data and therefore was not in a position to produce it.

The motion judge sentenced Murphy to serve a term of incarceration of five months, with no prospect of earned remission or early release. The order permitted Murphy to request a reduction or variation of his sentence by demonstrating that he purged his contempt, if he produced the data that was deleted from his phone. Murphy appealed the motion judge’s decision.

Analysis at the Ontario Court of Appeal

The civil contempt power is a fundamental feature of the administration of justice. It goes beyond the vindication of purely private interests and has a public dimension that is linked to the rule of law and the preservation of social order. Court orders are not suggestions. They are binding directives that should not be ignored or disobeyed. Civil contempt proceedings can result in true penal consequences. As such, civil contempt proceedings attract the constitutional protections in s. 11(c) of the Charter.

Section 11(c) of the Charter does not forbid any and all compulsion. It addresses only testimonial compulsion as this testimony results in the creation of evidence that did not previously exist. Section 11(c) is triggered when an allegation of contempt is before the court. It applies to civil contempt hearings whether the purported objective is to coerce compliance or punish non-compliance. It does not apply retroactively to protect statements or testimony that may have been compelled before the commencement of the contempt proceedings. Further, the Court of Appeal held that the protections in s. 11(c) apply for the duration of the contempt proceedings, until the final order or sentence is imposed. The Court noted that just as individuals cannot be forced to convict themselves with their own words, they should not be required to assist the moving party in seeking a harsher penalty.

The Court of Appeal held that the motion judge breached the appellant's rights under section 11(c) of the Charter by compelling him to testify during his own contempt proceedings. The Court emphasized that section 11(c) protects individuals from being compelled to testify against themselves in any penal proceeding, including civil contempt hearings. The Court further found that the motion judge erred in relying on the compelled testimony to find the appellant guilty of contempt for failing to produce the deleted data, as there was no independent proof that the data existed and could be produced.

As a result of these errors, the finding of contempt for failure to produce the deleted data was set aside, as was the sentence imposed by the motion judge. The matter was remitted back to the Superior Court for a sentencing hearing to determine the appropriate penalty for the acts of contempt admitted by Murphy, the refusal to surrender his phone and the deletion of the data.

Implications

The ruling in Sutherland Estate v. Murphy confirms that section 11(c) of the Charter applies to civil contempt proceedings. The decision underscores that the rights of individuals against self-incrimination are upheld throughout the legal process by protecting individuals from being compelled to testify against themselves. A person facing allegations of contempt should be aware of the protections afforded by s. 11(c) of the Charter and, whether self-represented or represented through counsel, raise these protections at the hearing stage and, if required, should challenge an order compelling them to testify prior to any examinations taking place.

On the other hand, a party using the civil courts to obtain information or recover assets from another party should carefully consider the timing, consequences, and trade-offs of commencing contempt proceedings. While contempt proceedings may motivate compliance with a court order, they also halt any ability to compel testimony until the contempt proceedings have concluded. If, for example, an opposing party has failed to comply with one aspect of a court order but is prepared to appear for examination on at least some issues, immediately commencing contempt proceedings could prevent the obtaining of key evidence. By first proceeding with the examination, valuable information may be obtained. This could perhaps include evidence that would assist in subsequently bringing contempt proceedings, since the Charter only precludes testimony compelled after contempt proceedings have been commenced. Whether and when to use what the Court in Sutherland Estate calls the “sledgehammer” of contempt proceedings is a strategic decision that should be carefully weighed by litigants and their counsel.