Does section 11 of the Charter apply to civil contempt proceedings?

The Canadian Charter of Rights and Freedoms [Charter] provides protection against government action. Among the protections conferred by the Charter are those set out in section 11. Section 11 of the Charter sets out certain rights that apply to “[a]ny person charged with an offence”. Among the rights outlined in s. 11 is the right “to be tried within a reasonable time” (s. 11(b)) and the right “not to be compelled to be a witness in proceedings against that person in respect of the offence” (s. 11(c)).

Civil contempt proceedings are “focused on the coercion of private litigants to comply with court orders and the protection of private interests” (Lymer v Jonsson, 2025 ABCA 423 at para 11 [Lymer]). Civil contempt proceedings are an important facet of the administration of justice and are essential to the ability of courts to maintain the rule of law.

In its recent decision in Lymer, the Court of Appeal of Alberta determined that s. 11 of the Charter does not apply to civil contempt proceedings. In reaching this conclusion, the Court found itself at odds with the Court of Appeal for Ontario’s decision in Sutherland Estate v Murphy, 2025 ONCA 227 [Sutherland Estate]. In Sutherland Estate, the Court determined that s. 11(c) of the Charter applies to civil contempt hearings: Sutherland Estate at para 64.

This blog post discusses the decisions in Lymer and Sutherland Estate, two recent decisions that examine the application of s. 11 of the Charter to civil contempt proceedings.

Section 11 of the Charter

Section 11 of the Charter provides several substantive rights to any person charged with an offence. It states:

Proceedings in criminal and penal matters

11    Any person charged with an offence has the right

(a)    to be informed without unreasonable delay of the specific offence;

(b)    to be tried within a reasonable time;

(c)    not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d)     to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e)    not to be denied reasonable bail without just cause;

(f)    except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g)    not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h)    if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i)    if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The analysis in Lymer and Sutherland Estate was focused on s. 11(b) and 11(c) of the Charter, respectively. However, there is no indication that the reasoning in either case was intended to be confined to the specific subsection of s. 11 that was at issue. Lymer should be read as a wholesale rejection of the application of s. 11 of the Charter to civil contempt proceedings. While certain subsections of s. 11 of the Charter are clearly inapplicable to civil contempt proceedings, the reasoning in Sutherland Estate suggests that subsections other than s. 11(c) could apply to civil contempt proceedings.

Section 32 and the application of the Charter

Essential to an appreciation of the reasoning in both Lymer and Sutherland Estate is s. 32(1) of the Charter. Section 32(1) outlines the application of the Charter in the following terms:

Application of Charter

32(1)    This Charter applies

(a)    to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b)    to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

In RWDSU v Dolphin Delivery Ltd., [1986] 2 SCR 573 (CanLII) [Dolphin Delivery], the Supreme Court of Canada considered whether the Charter applies to private litigation. Writing for the majority of the Court, McIntyre J. stated as follows in Dolphin Delivery at para 34 when considering s. 32 of the Charter:

It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation….

Justice McIntyre also opined that the Charter is inapplicable where “private party ‘A’ sues private party ‘B’ relying on the common law and where no act of government is relied upon to support the action” (Dolphin Delivery at para 39).

Writing for the majority of the Supreme Court in McKinney v University of Guelph, [1990] 3 SCR 229 at 261 [McKinney], LaForest J. stated as follows after quoting s. 32 of the Charter:

These words give a strong message that the Charter is confined to government action. This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual….

Justice LaForest also went on to state that “[t]he exclusion of private activity from the Charter was not a result of happenstance” and was instead “a deliberate choice which must be respected” (McKinney at 262).

More recently, in Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 95 [Hill], Cory J. stated as follows:

[95]    Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that a private litigant can do is argue that the common law is inconsistent with Charter values….

[Emphasis in original]

Section 32 of the Charter, as interpreted by the Supreme Court of Canada in Dolphin Delivery, McKinney, Hill, and many other decisions, support the general proposition that the Charter applies only to state action. In the absence of state action, Charter rights do not exist. However, “the common law must develop in a way that reflects emerging Charter values” (M. (A.) v Ryan, [1997] 1 SCR 157 at para 30). Charter values “underpin each right and give it meaning” (Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 36). While Charter rights do not apply to private litigation, Charter “values can be used in the development of common law rules” (Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 at para 76).

Civil contempt of court

In Carey v Laiken, 2015 SCC 17 at para 30, [2015] 2 SCR 79 [Carey], the Court observed that “[c]ontempt of court ‘rest[s] on the power of the court to uphold its dignity and process…. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect’” (quoting United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931).

The Court in Carey at para 30 indicated that “it is well established that the purpose of a contempt order is ‘first and foremost a declaration that a party has acted in defiance of a court order’” (quoting Pro Swing Inc. v Elta Golf Inc., 2006 SCC 52 at para 35, [2006] 2 SCR 612 [Pro Swing]).

The common law recognizes two forms of contempt: criminal contempt and civil contempt. The distinction between the two forms of contempt “rests on the element of public defiance accompanying criminal contempt” (Carey at para 31). With civil contempt, “there is no element of public defiance” (Carey at para 31). Unlike criminal contempt, “[c]ivil contempt is focused on the coercion of private litigants to comply with court orders and the protection of private interests” (Lymer at para 11). While civil contempt may be premised on the protection of private interests, “proceedings for civil contempt involve an accusation of moral wrongdoing because such conduct shows disrespect ‘for the role and authority of the courts’” (John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2025 SCC 6 at para 88, 500 DLR (4th) 385 [John Howard Society], quoting Vidéotron Ltée v Industries Microlec Produits Électroniques Inc., [1992] 2 SCR 1065 at 1075 [Vidéotron]).

Civil contempt proceedings are typically divided into two phases: a liability phase and, if necessary, a penalty phase. In Lymer at para 13, the Court described the two stages of a civil contempt proceeding as follows:

[13]    Civil contempt proceedings are generally bifurcated into a liability phase and a penalty phase: Carey at para 18. The case on liability proceeds first, including the presentation of any defence. If liability is established, the party found in contempt is usually afforded an opportunity to purge their contempt before the penalty or sanction phase proceeds: Miner v Cooke, 2025 ABCA 226 at para 15. If civil contempt is purged the court may waive or suspend any sanction, or may vary or remit a sanction already imposed: rule 10.53(3); Braun at para 27.

At the liability stage of a civil contempt proceeding, three elements must be established beyond a reasonable doubt to ground a finding of civil contempt: Carey at para 32. First, “the order alleged to have been breached ‘must state clearly and unequivocally what should and should not be done’” (Carey at para 33, quoting Prescott-Russell Services for Children and Adults v G. (N.) (2006), OR (3d) 686 (Ont CA) (CanLII at para 27). Second, “the party alleged to have breached the order must have had actual knowledge of it” (Carey at para 34). Finally, “the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels” (Carey at para 35).

The Court of Appeal for Ontario’s decision in Sutherland Estate v Murphy

In Sutherland Estate, the Court determined that s. 11(c) of the Charter applies to civil contempt proceedings. The Court considered an appeal from a determination of contempt in which the appellant was sentenced to five months in jail: see Sutherland Estate at para 2. The appellant had been required “to attend examinations and answer questions posed by the respondents”, and “[t]he compelled testimony was then used by the respondents (and the motion judge) to support a finding of contempt, and to justify the sentence imposed” (Sutherland Estate at para 2). The central issue on appeal was whether s. 11(c) of the Charter – which protects a person from being compelled to be a witness in proceedings taken against him or her in respect of an offence for which he or she has been charged – applies to civil contempt proceedings.

The Court in Sutherland Estate at para 32 observed that “[c]ivil contempt proceedings have many features in common with criminal proceedings”. It noted that “[a]lthough described as ‘civil’, contempt proceedings can result in imprisonment and therefore have true penal consequences” (Sutherland Estate at para 32). The Court stated that “[b]ecause of the public and penal dimensions of civil contempt, it attracts the constitutional protections in s. 11(c) of the Charter” (Sutherland Estate at para 32).

The Court in Sutherland Estate at para 34 went so far as to assert that “[t]he Supreme Court has expressly recognized that s. 11(c) applies to civil contempt proceedings”. It drew directly from the Supreme Court’s decision in Vidéotron, stating that “the court held that because of the sanctions attaching to civil contempt, ‘it would be inconsistent at least if a respondent cited for contempt could be compelled to testify’” (Sutherland Estate at para 34, quoting Vidéotron at 1078). The Court also quoted Gonthier J.’s explanation in Vidéotron that “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’” (Sutherland Estate at para 34, quoting Vidéotron at 1078–79).

The Court then drew from Pro Swing, indicating that in that case the Supreme Court held “that not only is an alleged contemnor not compellable, ‘but he or she is not competent to act as a witness for the prosecution’” (Sutherland Estate at para 35, quoting Pro Swing at para 35). The Court in Sutherland Estate interpreted Vidéotron and Pro Swing as demonstrating that while “the state is not the singular antagonist of the individual, as in the criminal context”, civil contempt proceedings go “beyond the vindication of purely private interests” (Sutherland Estate at para 36).

After engaging in further discussion about the character of civil contempt proceedings, the Court in Sutherland Estate at para 37 stated: “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”. Accordingly, the Court in Sutherland Estate concluded that an individual facing a civil contempt allegation is “charged with an offence” for the purposes of s. 11 of the Charter: Sutherland Estate at para 38.

The Court also engaged with the Supreme Court’s recent decision in John Howard Society. There, the Court underlined that there are two types of proceedings that can receive protection from s. 11 of the Charter. The first type is a proceeding that is criminal in nature. The second, of significance to the reasoning in Sutherland Estate, is where “the proceedings may lead to the imposition of ‘true penal consequences’” (Sutherland Estate at para 40, quoting John Howard Society at para 27). The Court in Sutherland Estate at para 42 stated as follows:

[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.

The Court in Sutherland Estate interpreted John Howard Society as holding “that s. 11 applies to all proceedings that carry a threat of imprisonment”, including civil contempt proceedings: Sutherland Estate at para 59. It refused to draw a distinction between proceedings aimed at coercing compliance and proceedings aimed at punishing non-compliance, noting that “[t]he distinction is largely unworkable because there are few, if any, bright lines between the twin objectives of coercion and punishment” (Sutherland Estate at para 60). The Court concluded that s. 11(c) of the Charter applies to civil contempt proceedings, regardless of “whether the purported objective is coercing compliance or punishing non-compliance” (Sutherland Estate at para 64). It indicated that “[i]n neither instance should the alleged contemnor be compelled to self-incriminate” (Sutherland Estate at para 64).

The Court determined that the appellant’s rights under s. 11(c) of the Charter had been infringed: see Sutherland Estate at para 81. The Court vacated the finding of contempt and remitted the matter back to the Superior Court for further consideration: Sutherland Estate at para 104.

The Court of Appeal of Alberta’s decision in Lymer v Johnsson

In Lymer, the appellant had been found in civil contempt in a bankruptcy proceeding after “swearing a false affidavit of records and failing to comply with orders requiring him to disclose relevant and material records” (Lymer at para 3). After being found in contempt, “the appellant applied for a stay of the contempt proceedings, alleging that his right pursuant to s 11(b) of the Charter ‘to be tried within a reasonable time’ had been violated” (Lymer at para 6). A Court of King’s Bench judge dismissed the appellant’s application for a stay: see Lymer v Jonsson, 2023 ABKB 565.

On appeal, the Court in Lymer considered whether s. 11(b) of the Charter is applicable to unreasonable delay in sanctioning proceedings following a finding of civil contempt: see Lymer at para 8. Among other cases, the appellant in Lymer relied on the Court of Appeal for Ontario’s decision in Sutherland Estate. Accordingly, the Court in Lymer was required to squarely address the reasoning in Sutherland Estate.

The Court in Lymer began its analysis by discussing ss. 11 and 32 of the Charter as well as case law interpreting the scope of Charter rights: see Lymer at paras 19–26. The Court then stated, in Lymer at para 27, that “[c]ivil contempt proceedings that arise in the course of private litigation are not commenced or pursued by the state or by government, but by private parties who do not owe each other constitutional duties”.

The Court in Lymer emphasized that the inapplicability of the Charter “does not mean that civil contempt proceedings are devoid of procedural protections” (Lymer at para 27). As sanctions for civil contempt “have penal or quasi-criminal aspects”, Canadian “courts have long recognized that contempt proceedings must comply with certain rules of fundamental justice” (Lymer at para 27). Among other protections, an alleged contemnor should provided with an opportunity to retain legal counsel: Lymer at para 28. In addition, the requirement that the elements of contempt be established beyond a reasonable doubt in order to “help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases” (Carey at para 32, as quoted in Lymer at para 28).

The Court in Lymer observed that to the extent that Supreme Court of Canada decisions have commented on the procedural protections provided to alleged contemnors, “[t]here is some lack of clarity in the authorities as to whether those procedural protections arise by virtue of the Charter as well as the common law” (Lymer at para 29). In an attempt to illustrate the purported lack of clarity in the law, the Court turned to Vidéotron and Pro Swing, among other cases. It then more squarely confronted the Court of Appeal for Ontario’s decision in Sutherland Estate, stating as follows in Lymer at para 40:

[40]    We agree with the conclusion in Sutherland Estate that individuals who are facing the prospect of imprisonment in civil contempt proceedings are entitled to many of the protections available to persons facing a criminal prosecution. However, in our view, those protections arise from the common law, both historically and as interpreted in light of the Charter, rather than through the application of s 11. The court in Sutherland Estate did not address the Dolphin Delivery line of authority that holds the application of the Charter should not be expanded beyond the boundaries established by s 32(1) to proceedings that do not involve a government or other state actor. Moreover, we do not read the majority decision in Vidéotron, or the comments of the court in Pro Swing, as concluding that a person facing civil contempt proceedings is “charged with an offence” for purposes of s 11 of the Charter.

The Court in Lymer also discussed the Court of Appeal for Ontario’s reliance on John Howard Society. The Court distinguished the reasoning in John Howard Society, noting that in that case, “the court did not address s 32 of the Charter, the Dolphin Delivery line of authorities, or whether s 11 would apply in other contexts where imprisonment is a possible remedy” (Lymer at para 42). After further engagement with the reasoning in John Howard Society, the Court in Lymer at para 48 stated:

[48]    In our view, the reasoning in the Supreme Court of Canada authorities does not establish that alleged contemnors in civil proceedings are persons “charged with an offence” such that s 11 will apply to those proceedings. In that respect, we find ourselves at odds with the conclusion of the Ontario court in Sutherland Estate. In our view, it is neither appropriate nor necessary to impose a series of constitutional duties on private parties involved in civil contempt proceedings not involving a state actor. This does not mean that meaningful protections are absent from such proceedings but rather that they do not arise through the application of s 11 of the Charter.

Accordingly, the Court in Lymer concluded that while alleged contemnors are provided with procedural protections, those protections are not derived from the Charter because Charter rights do not apply to private litigation. Instead, the protections arise at common law.

The Court in Lymer dismissed the appeal before it, concluding that “[r]egardless of any public dimension to civil contempt, there is no state actor whose actions could be measured against the standards of s 11(b) or to which the Charter could apply by virtue of s 32” (Lymer at para 59).

Conclusion

Lymer and Sutherland Estate are interesting decisions in which two respected courts reached markedly different conclusions while interpreting several of the same cases. The sharp divide between two provincial appellate courts likely means that the Supreme Court of Canada will be asked to clarify whether s. 11 of the Charter applies to civil contempt proceedings. An application for leave to appeal against the decision in Sutherland Estate is currently before the Supreme Court of Canada.

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