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The Quasi-Criminal Nature of a Contempt Hearing

March 1, 2022

Ontario

,

Canada

Issue

Can a respondent to a contempt motion be compelled to testify?

Conclusion

An alleged contemnor cannot be compelled to testify. (Kassay v. Kassay)

A person cited for contempt of court is a person charged with an offence within the meaning of s.11 of the Charter and enjoys the constitutional guarantee contained in s. 11(c), which specifically provides that a person charged with an offence may not be compelled to testify. (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc.)

The moving party must prove contempt at the highest threshold – that is, beyond a reasonable doubt. The quasi-criminal nature of the accusation engages principles and concepts more familiar in a criminal law context. For example, the onus of proof remains on the moving party throughout; it never shifts. Further, the alleged contemnor is not compelled to testify but, if he chooses to testify, his evidence is subject to full scrutiny, and the court may draw adverse inferences from his evidence. (Sweda Farms Ltd. et al. v. Ontario Egg Producers et al)

Given the quasi-criminal nature of a contempt hearing, a contemnor is not obliged to testify and his decision to remain silent cannot be used as evidence against him. However, in some cases, where the evidence sufficiently persuades a judge that contempt has been proved beyond a reasonable doubt, silence may be treated as confirmatory of a breach. (Lee v. Weidner)

Law

Section 11(c) of The Charter of Rights and Freedoms, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the "Charter") states:

11 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;

In Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 SCR 1065, 1992 CanLII 29 (SCC) ("Vidéotron"), the appellants had filed an application alleging that the respondents had committed a contempt of court by failing to comply with a permanent injunction. The appellants called an alleged contemnor to testify at the contempt hearing. He objected to testifying and invoked s.11(c) of the Charter. The lower courts held that the witness could not be compelled to testify. The issue on the appeal at the Supreme Court of Canada was whether the respondent in a motion for contempt of court based on failure to comply with an injunction may be compelled to testify. Lamer J., in concurring reasons, held that a person cited for contempt of court is a person charged with an offence within the meaning of s.11 of the Charter and enjoys the constitutional guarantee contained in section 11(c). The Supreme Court of Canada held that the respondent to the contempt motion was not compellable as a witness at the contempt hearing:

LAMER C.J. ‑‑ I have read the reasons of my colleague Justice Gonthier and concur in them without reservation. Although the reasons he gives are sufficient to dispose of this appeal, I should like to add a few comments in support of a different approach. It is clear from reading art. 50 of the Code of Civil Procedure, R.S.Q., c. C‑25, that, for all practical purposes, the Quebec legislature has created an offence. The fact that it chose to deal with contempt of court in the Code of Civil Procedure does not in any way alter the fact that, having regard to the Canadian Charter of Rights and Freedoms, a person cited for contempt of court is a person charged with an offence within the meaning of s. 11 of the Charter and enjoys the constitutional guarantee contained in s. 11(c), which specifically provides that a person charged with an offence may not be compelled to testify.

In Kassay v. Kassay, 2000 CanLII 22444 (ON SC), Quinn J. explained that even in a civil contempt claim, the criminal burden of proof applies. Citing Vidéotron, Quinn J. stated that the alleged contemnor cannot be compelled to testify:

[19] I state the obvious when I say that a finding of contempt must be made on evidence. Furthermore, even with civil contempt, the criminal burden of proof prevails. No doubt this is due, at least in part, to the fact that the sanctions for civil contempt include a fine or imprisonment. The alleged contemnor cannot be compelled to testify: see Vidéotron Ltée c. Industries Microlec produits électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065 (S.C.C.).

In Sweda Farms Ltd. et al. v. Ontario Egg Producers et al, 2011 ONSC 3650 (CanLII) (affirmed in 2012 ONCA 337 (CanLII)), Lauwers J. stated that the contemnor cannot be compelled to testify, but if he or she does testify, his or her evidence will be subject to full scrutiny:

[24] The moving party must prove contempt at the highest threshold – that is, beyond a reasonable doubt.[22] The quasi-criminal nature of the accusation engages principles and concepts more familiar in a criminal law context. For example, the onus of proof remains on the moving party throughout; it never shifts.[23] Further, the alleged contemnor is not compelled to testify;[24] but, if he chooses to testify, his evidence is subject to full scrutiny, and the court may draw adverse inferences from his evidence.

[...]

[24] Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79 at para. 1 (QL).

In College of Physicians and Surgeons of British Columbia v Ezzati, 2018 BCSC 2006 (CanLII), the petitioner sought to hold the respondent in contempt. Gropper J., consistent with Vidéotron, explained why a contemnor cannot be compelled to testify:

[24] Consistent with s. 11(c) of the Charter, the alleged contemnor is not a compellable witness in either criminal or civil contempt proceedings. Because contempt proceedings are typically heard in chambers on affidavit evidence, the alleged contemnor's election to call evidence has to be made after receiving the charging party's materials. This does not violate the alleged contemnor's right to silence.

In R. v. Noble, 1997 CanLII 388 (SCC) ("Noble"), Sopinka J. discussed how a trier of fact should treat silence on the part of the accused:

89 As set out above, silence is not inculpatory evidence, but nor is it exculpatory evidence. Thus, as in Lepage, if the trier of fact reaches a belief in guilt beyond a reasonable doubt, silence may be treated by the trier of fact as confirmatory of guilt. Silence may indicate, for example, that there is no evidence to support speculative explanations of the Crown’s evidence offered by defence counsel, or it may indicate that the accused has not put forward any evidence that would require that the Crown negative an affirmative defence. In this limited sense, silence may be used by the trier of fact. If, however, there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt.

90 Thus, there are permissible uses of silence by the trier of fact. However, Delisle is correct in stating that, since these permissible uses only arise after the trier of fact has reached a belief in guilt beyond a reasonable doubt, the uses may be superfluous. I would therefore conclude that courts should generally avoid using the potentially confusing term “inference” in discussing the silence of the accused. “Inference” could be taken to indicate that the trier of fact used silence to help establish the case for guilt beyond a reasonable doubt, which is not a permissible use of silence. Indeed, because of the potential for confusion, discussion of the silence of the accused should generally be avoided. However, where silence is mentioned by the trial judge as confirmatory of guilt given the totality of the evidence, but not as a “make-weight”, there is no reversible error. Lepage provides an example of such a situation.

In Lee v. Weidner, 2019 BCCA 326 (CanLII), the British Columbia Court of Appeal applied Noble in the context of a civil contempt proceeding as follows:

[49] The appellant did not offer an explanation in response to the contempt allegation or adduce evidence on the application. Given the quasi-criminal nature of a contempt hearing, he was not obliged to do so and his decision to remain silent could not be used as evidence against him: Peel at para. 33.

[50] In some cases, where the evidence sufficiently persuades a judge that contempt has been proved beyond a reasonable doubt, silence may be treated as confirmatory of a breach: Peel at para. 33, citing R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874 at para. 89. However, in this case, I am satisfied that the requisite threshold was not met. The evidence was not sufficient to prove contempt beyond a reasonable doubt and in reaching that conclusion, the judge was palpably wrong.

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