Case information

Constitutional law — Charter of Rights — Protection against testimonial compulsion — Civil procedure — Contempt of court — Respondent compelled to testify during civil contempt proceeding, both before and after consenting to declarations of contempt — Respondent found in contempt on additional ground and sentenced to incarceration — Whether s. 11(c) of the Charter applies in the sentencing phase of a civil contempt proceeding in private litigation such that the contemnor cannot be examined with respect to compliance and purging — Canadian Charter of Rights and Freedoms, s. 11(c).

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicants brought an action for damages against the respondent. A motion judge granted them several forms of injunctive relief, including an Anton Piller order (“order”), which authorized seizure of the respondent’s cell phones. When the applicants executed the order, the respondent refused to turn over his iPhone and deleted data from the device. He surrendered the iPhone in court the next day.

The applicants filed a motion for declarations of contempt of the order. They also asked the motion judge to order the respondent to attend examinations for discovery where he would be asked about the location of assets, including the data. The motion judge agreed, and ordered the respondent to attend examinations on January 16 and 19, 2023. Before the motion judge, the respondent admitted that he was in contempt of the order in two respects: by refusing to turn over the phone and by deleting the data from it. The motion judge ordered the respondent to attend further examinations which were conducted by the applicants on February 1, March 3 and October 6, 2023. The contempt proceedings continued in November 2023 and February 2024. The applicants sought a term of incarceration for the respondent. He did not produce any data, claiming that he was unable to do so as he could no longer access it.

In February 2024, the motion judge found that the respondent still had access to the deleted data. He sentenced the respondent to five months of imprisonment with no prospect of earned remission or early release, but he ruled that the sentence could be reduced if the respondent purged his contempt. He also ordered the respondent to produce all data on the iPhone related to the contempt proceedings, and ordered that if the respondent did not purge his contempt, he must attend before the court to determine whether further sanctions are required.

On appeal, the respondent argued that his s. 11(c) Charter right had been breached by the motion judge, as he had been compelled to testify during his own contempt proceedings. The Court of Appeal allowed the appeal, finding that the motion judge had erred in compelling the respondent to testify, in violation of s. 11(c). The court also found that the trial judge had erred in relying on the compelled testimony to find the respondent in contempt for failing to provide the deleted data, and for sentencing him for that act of contempt when it had not been proved. The Court of Appeal vacated the finding of contempt of failing to produce the data, and returned the matter to the Superior Court for sentencing on the two admitted grounds of contempt.