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Contempt - Charter. Sutherland Estate v. Murphy
In Sutherland Estate v. Murphy (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the "motion judge found the appellant to be in contempt of an Anton Piller order and sentenced him to five months in jail".
Here the court considers the application of Charter s.11(c) ["Any person charged with an offence has the right ... (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;"] (compellability) to the civil contempt context:[1] Section 11(c) of the Canadian Charter of Rights and Freedoms protects persons “charged with an offence” from being compelled to testify against themselves. Section 11(c) operates in tandem with other Charter provisions that, individually and collectively, protect individuals against self-incrimination. The overarching principle is that persons must not be compelled to testify and thereby create evidence that can be used against them in a penal proceeding. While often raised in the context of criminal proceedings, this case considers the application of s. 11(c) in the context of civil contempt.
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[3] The issue of compellability was not raised in the court below. But the appellant was self-represented for much of the time. It was for the court to recognize the potential Charter issue, and to consider whether the evidence compelled from the appellant was admissible, and if so, for what purpose. Now represented by counsel, the appellant argues that the sentence cannot stand.
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(1) Section 11(c) applies to civil contempt proceedings
[30] The civil contempt power is a fundamental feature of the administration of justice. It is an important means by which courts maintain and enforce the rule of law. In this way, it is linked to the maintenance of peace and social order. The power to punish for contempt is steeped in a rich history, dating back to the 12th century. As McLachlin J. (as she then was) put it in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 931:The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [31] The civil contempt power recognizes that court orders are not suggestions. They are binding directives that must not be ignored or disobeyed: Gordon v. Starr (2007), 2007 CanLII 35527 (ON SC), 42 R.F.L. (6th) 366, at para. 23 (Ont. S.C.). The power to declare a person in contempt, and to impose a corresponding penal sanction, reflects the fact that “wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice”: Kassay v. Kassay (2000), 2000 CanLII 22444 (ON SC), 11 R.F.L. (5th) 308 (Ont. S.C.), at para. 18.
[32] Civil contempt proceedings have many features in common with criminal proceedings. Indeed, the Supreme Court of Canada has stated that civil contempt “bear[s] the imprint of criminal law”: Pro Swing v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35. Although described as “civil”, contempt proceedings can result in imprisonment and therefore have true penal consequences. Because of the public and penal dimensions of civil contempt, it attracts the constitutional protections in s. 11(c) of the Charter.
[33] Section 11(c) protects “[a]ny person charged with an offence” from being compelled to testify against themselves. This right not to be forced into assisting in one’s own prosecution is a foundational constitutional principle. Lamer C.J. described it as “[p]erhaps the single most important organizing principle in criminal law”: R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 577. Section 11(c) operates in tandem with other protections to serve the “overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the [Charter]”: P. (M.B.), at p. 577.
[34] The Supreme Court has expressly recognized that s. 11(c) applies to civil contempt proceedings. In Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1078, the court held that because of the sanctions attaching to civil contempt, “it would be inconsistent at the least if a respondent cited for contempt could be compelled to testify”. “[E]ven when it is used to enforce a purely private order”, Gonthier J. explained, the aim and the potential consequences of civil contempt “still involve[] an element of ‘public law’, in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue”: Vidéotron, at p. 1075. Vidéotron was based on Quebec law, but the court observed that the same principles would apply at common law and under the Charter: Vidéotron, at pp. 1078-79.
[35] The Supreme Court affirmed Vidéotron some years later, holding that not only is an alleged contemnor not compellable, “but he or she is not competent to act as a witness for the prosecution”: Pro Swing, at para. 35. This follows from the “gravity of a contempt order”, and the “criminal law protections afforded to the person against whom such an order is sought”: Pro Swing, at para. 35. Because civil contempt orders are “quasi-criminal”, the court refused to enforce a contempt order issued by a foreign court, given the general rule against enforcing foreign penal orders: Pro Swing, at paras. 34, 36. The court reasoned in part that Vidéotron “opted for a unified approach to the nature of the contempt of court order, thus setting aside the distinction between the civil and criminal aspects that prevails in the United States”: Pro Swing, at para. 34.
[36] In civil contempt proceedings, the state is not the singular antagonist of the individual, as in the criminal context. But as Vidéotron and Pro Swing demonstrate, civil contempt goes beyond the vindication of purely private interests. It has a public dimension, intimately linked to the rule of law and the preservation of social order. It speaks to the integrity of the justice system, and the importance of recognizing and enforcing court orders. And as in the criminal context, the prospect of punishment for civil contempt serves an ancillary deterrence function, aimed at encouraging compliance with judicial directions.
[37] Vidéotron and Pro Swing show that the adjective “civil” does not reflect the breadth of the interests at stake in contempt hearings. Label aside, the contempt power is fundamentally about the court’s authority to enforce its own process. The litigant who seeks a contempt declaration may derive a benefit from a positive finding. It may prompt compliance with the court order in question. But a finding of contempt implicates and vindicates broader societal interests: those associated with the administration of justice and the rule of law. Given the public character of the interests at stake, the objectives at issue, and the potential for penal sanction, civil contempt hearings are properly characterized as “quasi-criminal” for constitutional purposes.
[38] It follows that a person facing a contempt allegation is “charged with an offence” for purposes of s. 11 of the Charter. Section 11 extends its protection to “persons prosecuted by the State for public offences involving punitive sanctions”: R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at p. 554.
[39] The Supreme Court recently clarified the two paths by which a proceeding may attract the protection offered by s. 11: John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, at paras. 27-30 [“JHSS”]. First, s. 11 applies when the proceedings at issue are “criminal in nature”. Proceedings of this kind are “intended to promote public order and welfare within a public sphere of activity” and stand in contrast to “private, domestic or disciplinary matters which are regulatory, protective or corrective”: JHSS, at para. 27, quoting Wigglesworth, at p. 560.
[40] Second, s. 11 applies when the proceedings may lead to the imposition of “true penal consequences”. These include “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 rather than for the maintenance of internal discipline”: JHSS, at para. 27, quoting Wigglesworth, at p. 561.
[41] The “key distinction” between these two paths is that the “criminal in nature test focuses on the process while the [true] penal consequences test focuses on its potential impact on the person subject to the proceeding”: JHSS, at para. 28, quoting Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 50.
[42] For present purposes, the relevant path is the “true penal consequences” test. A finding of contempt carries with it the threat of imprisonment. There can be no doubt that the prospect of imprisonment triggers the application of s. 11, particularly in the wake of JHSS. As Wagner C.J. explained, “[i]mprisonment always satisfies the true penal consequence test and thus triggers s. 11 protections because it is ‘the most severe deprivation of liberty known to our law’”: JHSS, at para. 55, quoting Wigglesworth, at p. 562.
[43] That explains why those facing allegations of contempt enjoy many of the protections afforded to those accused of crime. The alleged contemnor is presumed innocent. Contempt must be proved, not on the usual civil standard, but on the criminal standard of proof beyond a reasonable doubt: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 32. Procedural requirements, from pleadings to the presentation of evidence, are enforced rigorously: Bassett v. Magee, 2015 BCCA 422, at para. 35. And a person charged with contempt has a right to a fair hearing where he or she can make full answer and defence. That includes the right to the trial of an issue where affidavits disclose material facts in dispute: Fischer v. Milo (2007), 2007 CanLII 40211 (ON SC), 44 R.F.L. (6th) 134, at paras. 10-11.
[44] Finally, among the protections is that provided by s. 11(c) of the Charter: the right not to be compelled to testify against oneself.
[45] Of course, compulsion is not per se offensive in civil proceedings. Civil litigation imposes many compulsory obligations, including, but not restricted to, oral discoveries, affidavits of documents, and in some cases, medical examinations. All of this is appropriate and necessary, and nothing in this analysis suggests otherwise. But once a party to the litigation seeks a declaration of contempt against another, the character of the proceedings changes. What began as a private dispute becomes a juridical creature that is simultaneously civil and criminal; private and public; coercive and punitive. Contempt hearings straddle the distinction that normally separates civil and criminal proceedings.
[46] Because of its penal character, the civil contempt power is to be treated with respect and restraint. It should not be seen as a standard response to apparent intransigence. The contempt power is akin to a sledgehammer in that it brings the full force of penal justice to bear on a litigant. Sledgehammers have their place in the world of non-compliance, but they should not be wielded when a mallet or lesser instrument might do.
[47] Given the exceptional nature of the contempt power, courts have “consistently discouraged its routine use to obtain compliance with court orders”, lest it be perceived “as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Carey, at para. 36, quoting in part Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7, per Kasirer J.A. (as he then was). Far from a routine tool, the power to hold a person in contempt “is exceptional, and exercised as a last resort, only after finding that the necessary elements are made out, and after affording the alleged contemnor procedural fairness”: Oliveira v. Oliveira, 2022 ONCA 218, at para. 16.
(2) The scope of s. 11(c) is tailored
[48] Section 11(c) does not forbid any and all compulsion. It concerns itself only with testimonial compulsion—the compulsion to speak—as opposed to the compulsion to produce pre-existing, tangible items of evidence, or the compulsion to attend court. This is for good reason. It is compelled speech that does the greatest violence to Charter protections, because it results in the creation of evidence that did not previously exist.
[49] So, for example, a party may compel an alleged contemnor to attend court under r. 60.11(4) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, or r. 31(4) of the Family Law Rules, O. Reg. 114/99. A contemnor may be compelled to produce pre-existing documents or statements, because s. 11(c) only protects against the compulsion to speak as a witness: Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737, at para. 68.[2] But an alleged contemnor cannot be compelled to speak at their own contempt proceedings.
[50] In a similar vein, s. 11(c) is prospective in its application. It prohibits testimonial compulsion once an allegation of contempt is before the court. That is the critical triggering event. Section 11(c) does not reach back in time to protect statements or testimony that were offered before the contempt proceedings began. Therefore, the use of testimony compelled before the commencement of contempt proceedings, through the normal operation of the Rules of Civil Procedure, does not offend s. 11(c).
[51] Section 11(c) is complemented by the residual protection against self-incrimination housed in s. 7 of the Charter. I do not propose to discuss the full scope of s. 7 in these reasons. The s. 7 protection against self-incrimination takes its colour from the context in which it applies: R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154, at paras. 30-31. In this case, s. 7 is engaged because the evidence used to prove contempt should not have been compelled in the first place. If the compulsion was unconstitutional, the fruits of the compulsion are similarly tainted. Therefore, in this case, the s. 11(c) issue and s. 7 issue are bound up with each another. The use of the compelled testimony was, in effect, the manifestation of the harm caused by the breach of s. 11(c).
(3) Section 11(c) applies whether the purpose of the contempt hearing is coercive or penal
[52] The respondents argue that s. 11(c) does not apply where the predominant purpose of the contempt hearing is coercive rather than punitive. A coercive purpose is one aimed at securing compliance with a court order. For example, if someone is required to plant a tree, the threat of sanction upon a finding of contempt may incentivize them to plant it. But if someone cut down a tree in violation of a court order, there is nothing to coerce, because the act of contempt cannot be undone: Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2023 ONSC 2488, 528 C.R.R. (2d) 187 (Div. Ct.) at para. 22. In that case, all that a contempt proceeding can achieve is punishment.
[53] The respondents say that when the primary purpose of the sanction is coercive, compulsion is entirely appropriate. They urge that if the purpose of the contempt proceeding is to locate missing assets rather than to punish the contemnor, it is acceptable to compel the contemnor to disclose their location. The respondents say that because the predominant objective in this case was coercion rather than punishment, compelling the appellant’s testimony was not constitutionally offensive.
[54] This approach finds some support in the authorities, particularly Sakab, in which the Divisional Court unanimously endorsed this distinction. The Divisional Court quoted a trial court decision for the proposition that civil contempt motions “are not penal but are coercive proceedings with respect to orders and judgments of the [c]ourt to allow the [c]ourt to enforce its process”: Sakab, at para. 42, quoting McClure v. Backstein (1987), 17 C.P.C. (2d) 242 (Ont. H.C.), at p. 248. It also relied, by analogy, on R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, in which the Supreme Court drew a distinction between the Canada Customs and Revenue Agency’s audit and investigative functions for purposes of ss. 7 and 8 of the Charter. In Sakab, the court held that where the predominant purpose of the contempt hearing is coercive rather than punitive, there is no constitutional impediment to compelling testimony.
[55] With great respect, I do not agree. It may be important to distinguish between the coercive and punitive aspects of contempt in other contexts and for other purposes. However, the distinction does not affect the application of s. 11(c) of the Charter. When it comes to the protection against testimonial compulsion, the distinction neither reflects the prevailing jurisprudence, nor serves the interests of justice. I say this for four reasons.
[56] First, the distinction flies in the face of Pro Swing and Vidéotron. As discussed earlier, Pro Swing interpreted Vidéotron as rejecting the American distinction between civil and criminal contempt. That distinction mirrors the putative distinction between coercive and penal contempt. The effect of Pro Swing and Vidéotron is to declare that for purposes of s. 11(c), contempt is contempt, compulsion is compulsion, and the two should not co-exist.
[57] In JHSS, the majority recognized the distinction between civil and criminal contempt but affirmed the earlier holding in Vidéotron that civil contempt engages the “role and authority of the courts”. In Wagner C.J.’s words, at para. 88:As this Court held in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, the distinction between criminal contempt and civil contempt is that only the former rests on “the element of public defiance”, while the latter is focused on coercion and the protection of private interests (para. 31). Even so, proceedings for civil contempt involve an accusation of moral wrongdoing because such conduct shows disrespect “for the role and authority of the courts” (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1075). [58] This passage appears to connect civil contempt with “coercion”, but it must be construed in context. It forms part of a discussion about an earlier authority, R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665. In Pearson, Lamer C.J. pointed to civil contempt as an example of a proceeding outside the criminal sphere that engages s. 7, and therefore requires proof beyond a reasonable doubt. As Wagner C.J. explained in JHSS, at para. 84:The features of these two types of proceedings cited in Pearson assist in discerning when s. 7’s protection of the presumption of innocence will require proof beyond a reasonable doubt. Both circumstances involve proceedings where the state (a) accuses an individual of moral wrongdoing and (b) seeks to punish the individual with severe liberty-depriving consequences for such wrongdoing And importantly, as Lamer C.J.’s reference to the civil contempt proceedings exemplifies, proceedings that fall outside of the criminal process, strictly speaking, can have both of these features. [59] Thus, while the majority in JHSS recognized the distinction between civil and criminal contempt, it affirmed that the distinction does not affect the application of s. 7 of the Charter. Similarly, by citing Vidéotron with approval, the court signalled its affirmation that the distinction does not affect the application of s. 11(c) of the Charter. Certainly, there is nothing in JHSS to suggest the contrary. If anything, its central holding—that s. 11 applies to all proceedings that carry a threat of imprisonment—compels the conclusion that s. 11(c) applies to all contempt hearings, be they characterized as “civil” or “criminal”; “coercive” or “penal”.
[60] There are also sound practical reasons to reject the distinction as it relates to s. 11(c). This leads to my second point. The distinction is largely unworkable because there are few, if any, bright lines between the twin objectives of coercion and punishment. Many cases will involve a combination of both. So too here. The respondents argued in the court below, and on appeal, that the predominant purpose of the contempt hearing was coercive, and that the sentence was “for the purpose of coercing [the appellant] to disclose assets and evidence for preservation”. Yet in the same proverbial breath, the respondents argued before the motion judge that the appellant must be punished. In their own words:The law’s purpose for a contempt hearing being coercion has been undermined by Murphy’s defiance. The administration of justice has been brought into disrepute. Punishment is necessary. [Emphasis added.] [61] Third, even when the original animating objective is coercion, the potential for punishment remains. If the threat of sanction does not elicit compliance, all the court can do is punish the contemnor. Yet on the respondents’ analysis, the initial classification as coercive will have allowed for testimonial compulsion that would be prohibited in a punitive setting.
[62] That is essentially what occurred in this case. The respondents argued that the contempt proceedings were coercive and, on that basis, were allowed to examine the appellant. The evidence from the examination was then used to argue that the appellant could produce the deleted data. In essence, the respondents relied upon the coercive nature of the proceedings to compel evidence that established the coercive nature of the proceedings. The circularity of this approach is self-evident.
[63] Fourth, it will not always be clear whether coerced compliance is possible. This is particularly so when dealing with the digital realm. Those seeking to conceal tangible assets may cause them to be transferred, concealed, or broken down into their constituent parts. As a general rule, however, matter does not tend to disappear. In contrast, digital evidence can be irretrievably destroyed or rendered inaccessible. The respondents, through their data analyst, assert that the data “must” exist, that it “likely” exists, or that there is at least a “suspicion” that it exists. But absent proof beyond a reasonable doubt that it does, there is no basis for a coercive remedy. I will deal with this in more detail below. Suffice it to say for present purposes that the distinction between coercion and punishment, blurred in many cases, becomes even more elusive in the ephemeral world of electronic data.
[64] For all of these reasons, I conclude that s. 11(c) of the Charter applies to civil contempt hearings, whether the purported objective is coercing compliance or punishing non-compliance. In neither instance should the alleged contemnor be compelled to self-incriminate. The party looking for hidden assets may employ any number of investigative tools, but those tools stop short of compelling speech from the person who faces potential penal sanction.
(4) Section 11(c) applies to sentencing proceedings
[65] The respondents argue that even if s. 11(c) applies to the liability stage of a contempt hearing, it does not extend to sentencing. They claim that even within the traditional domain of criminal law, the Charter applies differently to sentencing than to the determination of guilt or innocence. So, the respondents suggest, compulsion during the sentencing phase of a contempt proceeding does not offend s. 11(c). As they put it in their factum, “the use of compelled evidence at sentencing was not contrary to the [a]ppellant’s right not to self-incriminate”, because “he had already admitted his ‘criminality’ in the liability phase of the contempt proceeding”.
[66] I note, at the outset, that this argument does not apply to the first two compelled examinations, because they occurred during the liability phase of the hearing. But the motion judge also ordered three further examinations following the findings of contempt. It could be said that those statements were compelled during the sentencing phase of the hearing. Therefore, it is necessary to explain why I disagree with the appellant’s submission that s. 11(c) does not apply to sentencing.
(i) The respondents rely on Jones and Lyons
[67] In oral argument, the respondents relied on R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229. Jones addressed the admissibility of evidence at a dangerous offender hearing under what is now Part XXIV of the Criminal Code, R.S.C. 1985, c. C-46. The court held that the prosecution may rely on evidence obtained during a pretrial psychiatric examination, and that this does not violate the residual protection against self-incrimination under s. 7 of the Charter.
[68] On behalf of a five-judge majority, Gonthier J. reasoned that the dangerous offender regime does not “incriminate” the accused at all. Having been convicted of the charged offence, the accused has “already been ‘criminated’, transformed from ‘accused’ to ‘offender’”: Jones, at p. 279. Sentencing proceedings, he explained, do not place the accused in jeopardy such that the Charter’s protection applies—only the adjudication of guilt or innocence does: Jones, at pp. 279-80.
[69] To make this point, Gonthier J. observed that the right to a jury trial under s. 11(f) of the Charter does not apply to dangerous offender proceedings, because “it would be quite inappropriate to conclude that a convicted person is charged with an offence” when faced with a dangerous offender application: Jones, at p. 280, quoting R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 353. Having already been convicted, that person is no longer “charged with an offence”, so s. 11 does not apply. This, Gonthier J. said, shows that there is a “distinction between sentencing and culpability proceedings”: Jones, at p. 280.
[70] The respondents say that Jones precludes the application of s. 11(c) to sentencing proceedings. If a person convicted of an offence is not “incriminated” during sentencing, and if that is in part because they are no longer “charged with an offence” once they have been convicted, it follows that s. 11(c)’s protections end once a proceeding moves from the liability phase to the sentencing phase.
(ii) More Recent Jurisprudence
[71] Since Jones was decided, the constitutional landscape has changed. The Supreme Court has more recently ruled that s. 11 applies post-verdict, and that it continues to apply until the end of the sentencing process. I refer here to R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, and R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330. Both cases hold that the right to be tried within a reasonable time applies to sentencing. And both interpret the scope of s. 11 in far broader terms than did Jones and Lyons.
[72] In MacDougall, the court unanimously observed that the rights in s. 11 “provide different forms and levels of protection for each stage of proceedings”, yet are united in application by their reference to a person “charged with an offence”: MacDougall, at paras. 10-11. Reasoning that the meaning of “charged with an offence” must harmonize each of s. 11’s subsections, the court held that the appropriate interpretation must be “an expansive one which includes both the pre-conviction and post-conviction periods”: MacDougall, at para. 11. The court expressly rejected a contrary argument rooted in Lyons, because denying convicted persons access to s. 11 would “rob other subsections like [ss. 11(h) and (i)] of any force”: MacDougall, at para. 15. Lyons, the court concluded, therefore does not preclude the application of s. 11 to post-conviction proceedings.
[73] The court went on to hold that the s. 11(b) right “to be tried within a reasonable time” extends to sentencing, because “sentencing is part of the process of being ‘tried’”, as evidenced by the application of the criminal standard of proof at sentencing hearings: MacDougall, at para. 20, citing R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368. The court noted that extending s. 11(b) to the sentencing phase also supports the interests it protects, namely avoiding prejudice to the accused’s liberty and security of the person caused by delay, and holding proceedings while evidence remains available and fresh: MacDougall, at paras. 33-35.
[74] MacDougall specifically mentioned Jones, observing that it “was concerned not with ordinary sentencing proceeding, but with the ‘unique’ Part XXI [now Part XXIV] dangerous offender proceedings at issue in Lyons”: at para. 25. The court explained that “Gonthier J.’s point”—that dangerous offender proceedings do not constitute a separate charge or offence triggering s. 11’s protections—was made “only to argue that a lower standard of evidence is appropriate at the sentencing stage”: MacDougall, at para. 25. Finally, the court pointed out that Jones was concerned with ss. 7 and 10(b) of the Charter and did not purport to address the application of s. 11(b). The approach taken in Jones did not prevent the court in MacDougall from concluding that “the process of being tried includes sentencing”, at para. 25, from which it follows that s. 11 of the Charter applies through the end of the sentencing process.
[75] In J.F., the court seemed to agree, and affirmed MacDougall in broad terms. “The term ‘person charged with an offence’”, Wagner C.J. explained, “has been interpreted broadly by [the Supreme Court] and refers to a person who is the subject of criminal proceedings. A person is charged with an offence from the time the charge is laid until the final resolution of the matter and the end of the sentencing process”: J.F., at para. 23 (internal citations omitted). The court in J.F. did not refer to Jones at all, perhaps because it had been so clearly distinguished in MacDougall.
[76] In light of these authorities, Jones and Lyons should not be read as barring the application of s. 11 to the sentencing process. MacDougall and J.F. chart a more expansive path for s. 11 than Jones contemplated. Of similar import is the expansive, purposive, and generous approach to s. 11 recently adopted in JHSS. It is not clear that Jones ever presented a barrier to the application of s. 11 to the sentencing process. If it did, that aspect of the decision must be read in light of the “significant legal change” effected by more recent Supreme Court authority: JHSS, at paras. 33-37.
[77] While MacDougall and J.F. were concerned with s. 11(b), I suggest that the same reasoning must logically extend to s. 11(c). To be sure, different subsections of s. 11 have different spheres of application. For example, s. 11(d) focuses on trial issues: the presumption of innocence, the right to a fair trial, and the right to full answer and defence. Those interests are spent by the time of the sentencing. Not so for s. 11(c). The right not to be compelled to testify against oneself is as vital at sentencing as at trial. It is true that sentencing hearings are not about the ultimate issues of guilt or innocence. It is also true that the rules of evidence are relaxed in this context, such that otherwise inadmissible evidence may be introduced so long as it is “credible and trustworthy”: Gardiner, at p. 414. But just as individuals cannot be forced to convict themselves with their own words, nor should they be required to assist the moving party in seeking a harsher penalty.
[78] All of this flows from a purposive approach to s. 11 of the Charter. The Supreme Court has endorsed a purposive approach to Charter interpretation for decades. Most recently, in JHSS, Wagner C.J. reminded readers of the court’s “consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the right in question”: at para. 7.
[79] The proposition that s. 11(c) applies at the sentencing stage of proceedings—be they criminal or quasi-criminal—makes good sense from the perspective of principle, policy, and practice. Some might say that this frustrates the investigation of crime and recovery of illicit proceeds. There is a public interest in locating assets tainted by fraud for purposes of restitution. However, those seeking to find hidden assets can avail themselves of the full arsenal of investigative tools—be they search warrants, production orders, Anton Piller orders, witness interviews, or other methods of gathering information. What the prosecuting body cannot do is compel the offender to answer questions. This is so whether the sentencing hearing is part of the criminal process, or arises from a finding of civil contempt.
[80] In sum, the Charter does apply differently at the time of sentence than it does at the time of trial. But the sentencing process is not a “Charter-free zone”. Constitutional provisions must be interpreted purposively, whatever the context. Provisions like ss. 11(b) and 11(c) have a purpose that continues to manifest until the very end of penal proceedings. I reject the argument that s. 11(c)’s work is done once liability is established. Testimonial compulsion in the sentencing context undermines dignity and autonomy as readily as it does in the trial context. Applying the analysis in MacDougall and J.F., I conclude that s. 11(c), like s. 11(b), continues to apply for the duration of criminal or quasi-criminal proceedings, until the final order or sentence is imposed.
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[87] Contempt requires proof of three elements. The order allegedly breached “must state clearly and unequivocally what should and should not be done”, the alleged contemnor must have actually known about the order, and they must have intentionally breached it: Carey, at paras. 33-35. . Clancy v. Farid
In Clancy v. Farid (Ont CA, 2024) the Ontario Court of Appeal considered the application of Charter s.11(b) [trial delay] to contempt proceedings:[56] Some courts have observed that it is arguable that a civil motion for contempt is subject to the guarantee in s. 11(b) of the Charter that “any person charged with an offence has the right … to be tried within a reasonable time”: see e.g., Lymer v. Jonsson, 2023 ABCA 367, [2024] A.W.L.D. 1281, at para. 32; St-Amour c. Major, 2017 QCCS 2352, 141 W.C.B. (2d) 749. But even accepting that, Mr. Farid has not shown an arguable case that there was a delay beyond the Jordan ceiling.
[57] The Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 31.The hearing before Ramsay J. resulting in her March 4, 2022 summary judgment (and the dismissal of the contempt motion) concluded on September 2, 2021. Mr. Farid has not identified how the “charge” of civil contempt – the bringing of the motion seeking that finding – could be said to have begun more than 30 months before September 2, 2021. Nor does the record for this motion contain any information that would allow that conclusion to be drawn.
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