Court Rejects Charter-Based Attempt to Exclude Evidence in Contempt Proceeding

Henderson & Lee Law Corporation Successfully Defends Admissibility of Critical Evidence in Contempt Proceeding

In the recent British Columbia Supreme Court decision of He v. Fan, 2024 BCSC 1728, the Court addressed a relatively new but important legal issue involving contempt proceedings, Charter rights, and the admissibility of statements made by a self-represented litigant. Mr. Jonathan Li of Henderson & Lee acted as co-counsel for the claimant, Ms. He.

The dispute arose from a high-conflict family property litigation involving a Nanaimo business property. During the proceedings, the individual respondent alleged that statements he voluntarily made to the claimant?s counsel while self-represented should be excluded because he had not been advised of his right to counsel or right to remain silent under the Canadian Charter of Rights and Freedoms (the ?Charter?).

The respondent brought an application to exclude the statements he made from evidence, arguing that opposing counsel acted as a “person in authority” for the purposes of the confession rule and that the communications violated his constitutional rights.

The Court's Decision

The BC Supreme Court firmly rejected those arguments. Madam Justice Sukstorf held that counsel for the opposing party in a family law contempt proceeding is not a “person in authority” under the criminal confessions rule. The Court confirmed that lawyers representing private parties are not state actors, despite being called “officers of the court”, and do not owe constitutional warning obligations comparable to police officers.

Importantly, the Court found that the respondent was not arrested or detained; therefore, Charter s. 10(b) rights were not triggered. The statements were voluntarily made and occurred largely in the respondent’s native language. There was no coercion, duress, or improper inducement. The evidence remained admissible. The Court ultimately dismissed the respondent’s application and awarded costs to Ms. He.

Why This Decision Matters

This decision is the first in British Columbia on these issues and provides important guidance regarding the limits of Charter protections in civil contempt proceedings, the distinction between state actors and private counsel, admissibility of communications with self-represented litigants, and the procedural safeguards applicable in quasi-criminal proceedings. 

The case also demonstrates the Court’s careful balancing between protection of fairness and the practical realities of litigation.

Henderson & Lee Law Corporation assists clients with quasi-criminal proceedings, complex property disputes, and high-conflict litigation involving corporate and cross-border assets.