The appellant’s appeal was also dismissed. The court of appeal’s judgment highlights the unique nature of contempt of court, Canada’s only surviving common-law offence (i.e., the only criminal offence that hasn’t been codified by the Criminal Code). The case also reaches a different result on the application of the Charter in civil-contempt proceedings than the Ontario Court of Appeal, which recently held (in Sutherland Estate v Murphy, 2025 ONCA 227) that section 11 (c) of the Charter (which protects persons charged with an offence from being compelled to testify against themselves) applies in civil-contempt proceedings.

The Alberta court offered a succinct review of the legal issues before it and its conclusions in an overview of the appeal:

[1]               The issue on this appeal is whether s 11(b) of the Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time, applies to sanction proceedings following a finding of civil contempt. We conclude that s 11(b) does not apply in the circumstances of this appeal. The Charter, and specifically s 11, is directed at government action and does not impose constitutional duties on private parties in civil contempt proceedings not involving a state actor.

[2]               Certain procedural protections apply in civil contempt proceedings as a result of their quasi-criminal nature and the potential penal consequences that may attach to a finding of civil contempt, but these protections are not a result of the application of s 11. Further, the protections that apply in civil contempt proceedings do not include a guarantee that the sanction phase of those proceedings will be complete within a certain period, in accordance with the timelines for criminal proceedings established by the Supreme Court of Canada in R v Jordan, 2016 SCC 27.

How did the court reach this result? It placed considerable significance on the proceedings “not involving a state actor” (“In short, there is no state actor responsible for conducting civil contempt proceedings or bringing them to a close on any particular timeline. The conduct of such proceedings rests entirely in the hands of the private litigants.”). In support, the court pointed to authority from the Supreme Court of Canada dating back to the earliest days of the Charter:

[20]           We begin with the principle, stated by the majority of the Supreme Court of Canada in Dolphin Delivery, that the Charter does not apply to private litigation not involving a state actor. In Dolphin Delivery, a union applied to set aside an injunction that prevented secondary picketing, arguing that picketing by its members was a protected activity under s 2(b) of the Charter and therefore not the proper subject of an injunction. The union’s application was dismissed.

[21]           The court concluded that the Charter applies to the common law, noting the language of s 52(1) of the Constitution Act, 1982: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”: Dolphin Delivery at para 25.

[22]           However, the Charter does not apply to “private litigation divorced completely from any connection with Government”: Dolphin Delivery at para 26. 

This line of authority allowed the court to draw a distinction between its reasoning and that of the Ontario Court of Appeal:

[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.

***

[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.

Through these observations, the court reached the following conclusions:

[52]           We have concluded that the right to be tried within a reasonable time is one of the protections described in s 11 that does not apply to the sanctioning phase of a civil contempt proceeding. The appellant attempts to equate that sanctioning process with sentencing for a criminal offence and seeks to apply the presumptive ceiling set out by the Supreme Court of Canada in Jordan for the completion of criminal trials to this context. As the respondent points out, the decision in Jordan was intended to address institutional delay in the prosecution of criminal cases in Canada. There is no comparable issue with respect to sanctioning proceedings in civil contempt. Moreover, there are significant differences between civil contempt sanctioning proceedings and sentencing following a criminal prosecution, including that there is no state actor responsible to prosecute proceedings for civil contempt and that the imposition of sanctions for civil contempt is primarily directed at coercing a party to comply with a court order, rather than punishment for the commission of an offence. The concept of institutional delay does not have the same relevance in the context of civil contempt sanctioning.

[53]           A key distinction between the two proceedings is that a person found in civil contempt has the opportunity to purge their contempt and apply to the court for a declaration that it has been purged. The court may take the purging of contempt into account at the sanctioning phase and waive or suspend any sanction imposed: rule 10.53(3); Braun at para 27. Even if delay was a relevant concern in sanctioning, it is difficult to see how delay could be laid at the feet of the opposing party or some “institution” while the contemnor is seeking to purge their contempt or establish to the court that they are no longer in contempt.

The post Charter remedy not available in contempt of court case: Alberta Court of Appeal first appeared on British Columbia Law Institute.

The subpoenas were issued by the appellants to four Elected Chiefs. The court affirmed the trial judge’s finding that the evidence sought by the subpoenas wouldn’t be relevant to the issues at trial. The court added that the evidence would also have “amounted to a collateral attack on the validity of the injunction”.

The court then considered “whether it is open to an alleged contemnor to rely on a colour of right defence based on an honest belief that a law contradicting the injunction allowed them to engage in the impugned conduct, thereby negating the mens rea for criminal contempt”. In the court’s view, this amounted to a “live issue” because “the jurisprudence reflects some confusion on the availability of a colour of right defence of this type in a criminal contempt prosecution”.

The court declined to allow this defence for the following reasons:

[43] In my view, Davidson demonstrates that a colour of right defence based on an honest belief in a contradictory law is not available in a criminal contempt proceeding. Once the Crown proves the accused: (1) had knowledge of a court order prohibiting certain conduct; and (2) intentionally engaged in that conduct in a public manner, there can be no air of reality to the defence that the accused did not intend, know, or act recklessly as to whether that conduct would tend to depreciate the authority of the court even if they honestly believed that a law permitted the impugned conduct.

[44] At most, as in Davidson, the appellants in this case could say they honestly believed it was more important to follow a competing Indigenous law than to abide by the court order. But that cannot negate their knowledge that—or at a minimum recklessness as to whether—publicly contravening the court order would tend to depreciate the Court’s authority.

[45] It bears repeating that court orders must be obeyed. Indeed, it is in the interests of everyone that this rule be respected and enforced through the criminal contempt power.

[46] As this case demonstrates, court orders protect the legal interests of both Indigenous and non-Indigenous rights holders. The Secwépemc people entered into benefit agreements with Trans Mountain and want the project to proceed so that they can realize on the benefits they have contracted for. It is not for individuals, Indigenous or otherwise, to impose their own views about land use on other Indigenous groups by force. Those who disagree may express their views and engage in lawful protest, but are bound to respect court orders prohibiting them from interfering with the lawful rights of others.

In the result, the court dismissed the appellants’ appeals.

The post BC Court of Appeal declines to allow colour-of-right defence based on Indigenous laws first appeared on British Columbia Law Institute.