R. v. Gibbons (L.), 2015 ONCA 47

• Judge: Feldman, Simmons and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 16, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 47;(2015), 329 O.A.C. 198 (CA)

R. v. Gibbons (L.) (2015), 329 O.A.C. 198 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.033

Her Majesty the Queen (respondent) v. Linda Gibbons (appellant)

(C56895; 2015 ONCA 47)

Indexed As: R. v. Gibbons (L.)

Ontario Court of Appeal

Feldman, Simmons and Pepall, JJ.A.

January 26, 2015.

Summary:

In 2009, the accused was charged under s. 127 of the Criminal Code with disobeying a 1994 interlocutory injunction which prohibited anti-abortion protests within 60 feet of certain abortion clinics.

The Ontario Court of Justice, with reasons with neutral citations 2010 ONCJ 470 and 2011 ONCJ 218, found the accused guilty of disobeying the order. The court rejected the accused's challenge to the constitutionality of s. 127 based on overbreadth (Charter, s. 7). The trial judge also dismissed the accused's application to have the proceedings against her stayed as an abuse of process. The accused appealed.

The Ontario Superior Court (summary conviction appeal court), in a decision with neutral citation 2013 ONSC 1403, dismissed the appeal. The accused applied for leave to appeal, arguing that the Crown's prosecution of her was an abuse of process and that s. 127 was unconstitutional.

The Ontario Court of Appeal granted leave to appeal, but dismissed the appeal.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - [See second Criminal Law - Topic 440 ].

Constitutional Law - Topic 401

Powers of parliament and the legislatures - General - [See first Criminal Law - Topic 440 ].

Constitutional Law - Topic 6443

Federal jurisdiction (s. 91) - Criminal law - General - Matters criminal in nature - [See first Criminal Law - Topic 440 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused was charged under s. 127 of the Criminal Code with disobeying a 1994 interlocutory injunction which prohibited anti-abortion protests within 60 feet of certain abortion clinics - The accused appealed, arguing that the Crown's delay in prosecution constituted an abuse of process - The Ontario Court of Appeal dismissed the appeal - In the face of the trial judge's findings, there was no basis for a finding that the prosecution of the accused for breach of the interlocutory injunction constituted an abuse of process - In any event, the abuse of process argument was an impermissible collateral attack on the underlying order for an interlocutory injunction - See paragraphs 5 to 9.

Criminal Law - Topic 440

Offences against the administration of law and justice - Disobedience and obstruction - Disobedience of court order - The accused was convicted under s. 127 of the Criminal Code with disobeying a 1994 interlocutory injunction prohibiting activities near certain abortion clinics - Section 127 made it an offence to disobey a lawful order "made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law" - The accused appealed, arguing that s. 127 was ultra vires Parliament because it impermissibly delegated part of the federal criminal law power to provincial legislatures through the exception contained in s. 127 - The Ontario Court of Appeal rejected the division of powers argument - Parliament could limit the reach of its legislation by a condition, namely the existence of provincial legislation - The court also rejected the accused's argument that s. 127 was unconstitutional because it did not reflect a valid criminal law purpose - See paragraphs 10 to 12.

Criminal Law - Topic 440

Offences against the administration of law and justice - Disobedience and obstruction - Disobedience of court order - The accused was convicted under s. 127 of the Criminal Code with disobeying a 1994 interlocutory injunction prohibiting activities near certain abortion clinics - The accused appealed, arguing that s. 127 contravened s. 7 of the Charter because it was arbitrary, overbroad and grossly disproportionate - The Ontario Court of Appeal dismissed the appeal - There was no merit in the accused's arguments - The court agreed with the Crown that, because the purpose of s. 127 was directed at maintaining public order and preserving respect for the administration of justice, and because the section was a specific-intent offence that provided for a defence of lawful excuse, was hybrid in nature and had internal limitations, the effect of s. 127 could not be arbitrary, overbroad or grossly disproportionate and did not breach s. 7 of the Charter - See paragraph 17.

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 7].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 7].

R. v. Furtney et al., [1991] 3 S.C.R. 89; 129 N.R. 241; 51 O.A.C. 299; 66 C.C.C.(3d) 498, refd to. [para. 12].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 12].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 13].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 17].

Criminal Code, R.S.C. 1985, c. C-46, sect. 127 [para. 1, footnote 1].

Counsel:

Nicolas M. Rouleau and Daniel C. Santoro, for the appellant;

Susan Magotiaux, for the respondent.

This appeal was heard on January 16, 2015, before Feldman, Simmons and Pepall, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on January 26, 2015.