The question of Charter rights in civil contempt headed to the Supreme Court of Canada

Does s. 11 of the Canadian Charter of Rights and Freedoms (the Charter), the provision aimed at protecting the liberty and security interests of persons “charged with an offence,” apply to civil contempt proceedings between private parties? Canadian appellate courts have been unable to agree. In Sutherland Estate v. Murphy, the Ontario Court of Appeal (ONCA) held that a person facing civil contempt is a "person charged with an offence" for the purposes of s. 11(c), entitling them to the Charter's protection against compelled self-incrimination. Nine months later, in Lymer v. Jonsson, the Alberta Court of Appeal (ABCA) reached the opposite conclusion, holding that, absent a state actor, the Charter does not apply directly to privately initiated civil contempt proceedings and that any procedural protections arise instead from the common law. The result has been a constitutional divide in which the rights available to an alleged contemnor depend largely on the province in which the proceedings are brought.

In our previous update, we examined the emergence of this appellate conflict and suggested that Supreme Court intervention would likely be required to resolve it. That prediction has now been borne out. On July 9, 2026, the Supreme Court of Canada (SCC) granted leave to appeal in both Lymer v. Jonsson (File No. 42227) and Estate of Craig Sutherland v. Murphy (File No. 41818), directing that the appeals be heard together.

Background

In Murphy, the ONCA held that s. 11(c) of the Charter applies to privately initiated civil contempt proceedings. The appellant, Colin Murphy, had been found in contempt of an Anton Piller order in a cryptocurrency fraud case after refusing to surrender his phone and deleting data from it. While the contempt allegations were before the court, the motion judge compelled Murphy to attend examinations under oath and relied on that compelled testimony both to find him liable for an additional act of contempt and to sentence him to five months' incarceration. On appeal, the ONCA concluded that once civil contempt proceedings have been commenced, a person facing those allegations is "charged with an offence" for the purposes of s. 11(c) and therefore cannot be compelled to testify against themselves. The Court reasoned that civil contempt is properly characterized as "quasi-criminal" because it carries "true penal consequences," including imprisonment, and serves a public function linked to the rule of law. Applying the "true penal consequences" test, the Court further held that the protections afforded by s. 11(c) extend throughout the proceedings, including sentencing.

Nine months later, the ABCA in Lymer v Jonsson reached the opposite conclusion. Lymer, an undischarged bankrupt found in civil contempt in 2014 for swearing a false affidavit of records and failing to comply with disclosure orders, sought a stay of his sanctions proceedings on the basis that the delay violated s. 11(b). The ABCA held that s. 11 does not apply to civil contempt proceedings between private parties. The Court held that s. 32(1) of the Constitution Act, 1982 limits the Charter to government action, and that civil contempt proceedings initiated by a private litigant do not involve a state actor whose conduct can be measured against constitutional standards. The ABCA did find that procedural protections exist in civil contempt, but held that these arise from the common law, historically and as interpreted in light of Charter values, rather than from the direct application of s. 11. The ABCA expressly disagreed with Sutherland Estate, faulting the ONCA for failing to address the Dolphin Delivery line of authority.

The leave to appeal applications

The two applications for leave to appeal to the SCC approached the issue from different directions but share common threads.

In Lymer’s application for leave, the question was whether s. 11 applies to civil contempt at all. The application frames the issue as: “Is a person facing civil contempt proceedings in a Canadian superior court a person ‘charged with an offence’ for the purposes of s. 11 of the Charter, and thus entitled to be ‘tried within a reasonable time’ in accordance with s. 11(b)?” The argument is that the “true penal consequences” test is met wherever imprisonment is possible, that the split between the appellate courts demonstrates national importance, and that the SCC could adopt a tailored framework for assessing delay in civil contempt even if it does not import the full Jordan regime.

The opposition to leave advanced four arguments:

1. That Jordan addresses institutional delay specific to criminal prosecutions with no analogue in civil contempt;
2. That the Rules of Court and the doctrine of abuse of process provide adequate alternative remedies;
3. That the record is insufficient to conduct a delay analysis; and
4. That a contemnor who can purge at any time should not be permitted to complain of delay.

In reply, the appellant argued that the existence of alternative remedies cannot extinguish a Charter right, that the SCC is being asked about principle rather than its fact-specific application, and that the delay in this case is attributable to the creditor’s failure to schedule questioning as directed by the Registrar, whose order staying contempt proceedings pending oral discovery remained in effect.

The leave application in Sutherland Estate, by contrast, does not dispute that s. 11(c) applies to civil contempt at the liability phase. The appellants accept that a person cited for contempt is “charged with an offence” within the meaning of s. 11 and instead ask a narrower question: whether s. 11(c) extends into the sentencing and purging phase, where the purpose of the proceeding shifts from establishing liability to coercing compliance with court orders. They argue that compelled testimony after a finding of contempt serves a fundamentally different purpose from compelled testimony used to establish liability and therefore raises different constitutional considerations. In their view, extending s. 11(c) into the sentencing and purging phases improperly transforms the Charter into a shield against compliance with judicial orders obtained by private litigants.

Implications

The SCC’s decision to grant leave in both cases and hear them together signals an intention to provide comprehensive guidance. The two applications present the Court with the full spectrum of the debate: Lymer asks whether the constitutional door is open at all, while Sutherland Estate asks how far through it one may walk.

Similarly, Sutherland Estate’s arguments about the unique nature of civil contempt sentencing, namely that the contemnor controls the timeline by choosing whether to purge, and that the proceeding is not an “ordinary sentencing proceeding”, echo the respondent Jonsson’s submissions against Lymer. If the SCC accepts this framing, it may conclude that s. 11 applies to civil contempt in principle but that s. 11(b) and the Jordan framework do not translate to this context, given the absence of institutional delay and the contemnor’s ability to bring the proceedings to a close by complying.

A range of outcomes is possible. The SCC could hold that s. 11 applies fully to civil contempt across all subsections. It could hold that s. 11 applies in principle but that different subsections operate with different force, for instance, affirming non-compellability under s. 11(c) while declining to import Jordan timelines under s. 11(b). It could adopt a framework distinguishing between compliance-focused and punishment-focused stages of sentencing. Or it could uphold the ABCA’s approach entirely, confining protections to the common law.

For litigants and counsel, the practical landscape will remain divided until the SCC renders its decision. In Ontario, persons facing civil contempt may invoke s. 11(c) to resist compelled testimony. In Alberta, they cannot rely on s. 11(b) to import Jordan timelines and must instead address delay through the Rules of Court or the doctrine of abuse of process. Parties on both sides of civil contempt proceedings should factor this consolidated appeal into their strategic planning. We will provide a further update after the SCC renders its decision.