Her Majesty the Queen v. Gibbons, 2010 ONCA 77

Her Majesty the Queen v. Gibbons [Indexed as: R. v. Gibbons]

100 O.R. (3d) 248

2010 ONCA 77

Court of Appeal for Ontario,

Goudge, Feldman and Watt JJ.A.

January 29, 2010

Criminal law -- Disobeying court order -- Accused charged with breaching interlocutory injunction preventing anti- abortion activities at specified locations -- Trial judge quashing information on basis that accused should be dealt with by civil contempt and that Rules of Civil Procedure pertaining to contempt amounting to "punishment or other mode of proceeding . . . expressly provided by law", thereby excluded from a prosecution pursuant to s. 127(1) of Criminal Code -- Authority to punish for civil and criminal contempt originating in common law -- Rules of Civil Procedure only setting out procedure for contempt proceedings -- Proceedings authorized by common law not falling within s. 127(1) as not statutory and not "expressly provided by law" -- Criminal Code, R.S.C. 1985, c. C-46, s. 127(1) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 60.11, 60.12.

In 1994, the Attorney General of Ontario obtained an interlocutory injunction prohibiting anti-abortion protest activity at various places in Ontario. The accused was charged with disobeying a court order contrary to s. 127(1) of the Criminal Code after she allegedly violated a term of that injunction. She applied to quash the information, arguing that her conduct fell outside the scope of s. 127(1) as the section only applies to cases in which there is no other "punishment or other mode of proceeding is expressly provided by law" and that a proceeding for contempt under rules 60.11 and 60.12 of the Rules of Civil Procedure was another mode of proceeding to punish her conduct. The trial judge agreed and quashed the information. The summary conviction appeal court judge allowed the Crown's appeal and ordered a new trial. The accused appealed.

Held, the appeal should be dismissed.

A punishment or other mode of proceeding that originates in the common law does not meet the requirements of the exception in s. 127(1) since its origin is not statutory and it is not "expressly provided by law". The authority to punish or compel compliance by proceedings for contempt originates in the common law. Section 9 of the Code does not expressly enact the power to punish for criminal contempt, but rather merely preserves the common law jurisdiction to do so. The authority to punish for civil contempt equally resides in the common law: the authority of the Superior Court to control its own process. Rules 60.11 and 60.12 only specify the procedure to be followed.

APPEAL from the decision of Frank J., 2009 31598 (ON SC), [2009] O.J. No. 2559 (S.C.J.) allowing the Crown's appeal from an order quashing the information.

Cases referred to R. v. Clement, 1981 212 (SCC), [1981] 2 S.C.R. 468, [1981] S.C.J. No. 93, 127 D.L.R. (3d) 419, 38 N.R. 302, [1981] 6 W.W.R. 735, 10 Man. R. (2d) 92, 61 C.C.C. (2d) 449, 23 C.R. (3d) 193, 23 R.F.L. (2d) 225, 6 W.C.B. 413, apld Gerson (Re), 1946 51 (SCC), [1946] S.C.R. 547, [1946] S.C.J. No. 26, 87 C.C.C. 143 at 150, 3 C.R. 111, affg 1946 16 (SCC), [1946] S.C.R. 538, [1946] S.C.J. No. 25, 87 C.C.C. 143 at 143; R. v. Gaudreault, 1995 5075 (QC CA), [1995] J.Q. no 1337, 105 C.C.C. (3d) 270, 30 W.C.B. (2d) 12 (C.A.); R. v. Nutter, 1999 NSCA 47, [1999] N.S.J. No. 27, 173 N.S.R. (2d) 284, 42 W.C.B. (2d) 159 (C.A.), consd [page249] Other cases referred to R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, 105 D.L.R. (4th) 199, 155 N.R. 225, J.E. 93-1438, 141 A.R. 163, 83 C.C.C. (3d) 129, 22 C.R. (4th) 145, 16 C.R.R. (2d) 290, 20 W.C.B. (2d) 195; R. v. Dawson, 1995 NSCA 151, [1995] N.S.J. No. 306, 143 N.S.R. (2d) 1, 100 C.C.C. (3d) 123, 16 R.F.L. (4th) 279, 28 W.C.B. (2d) 71 (C.A.); R. v. Fairchuk, [2003] M.J. No. 119, 2003 MBCA 59, 225 D.L.R. (4th) 38, [2003] 8 W.W.R. 35, 173 Man. R. (2d) 274, 173 C.C.C. (3d) 503, 13 C.R. (6th) 297, 57 W.C.B. (2d) 259 [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 339, 178 C.C.C. (3d) vi]; R. v. Moore, 1987 6798 (ON CA), [1987] O.J. No. 870, 22 O.A.C. 315, 38 C.C.C. (3d) 471, 2 M.V.R. (2d) 169, 3 W.C.B. (2d) 59 (C.A.); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51, 52 W.C.B. (2d) 150; R. v. Rent, 1989 9593 (NS CA), [1989] N.S.J. No. 177, 91 N.S.R. (2d) 112, 7 W.C.B. (2d) 256 (C.A.); R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 116 N.R. 361, J.E. 91-48, 43 O.A.C. 277, 61 C.C.C. (3d) 300, 2 C.R. (4th) 153, 1 C.R.R. (2d) 82, 11 W.C.B. (2d) 358 Statutes referred to Canadian Charter of Rights and Freedoms, s. 24(1) Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 38 [as am.] Code of Civil Procedure, R.S.Q. c. C-25, arts. 49-51 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 66 [as am.] Criminal Code, R.S.C. 1970, c. C-34, s. 472 Criminal Code, R.S.C. 1985, c. C-46, ss. 9 [as am.], 127, (1), (a), (b), 145(3), (5.1), 486.6(1), 517(2), 545, 605(2) [as am.], 648(2), 708(1), 830(1) [as am.], 839(1)(a) Criminal Code, 1892, S.C. 1892, c. 29, s. 139 English Draft Code, s. 115 Family Law Act, R.S.O. 1990, c. F.3, s. 49 [as am.] Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 104 -109 [as am.] Rules and regulations referred to Court of Queen's Bench Rules, Man. Reg. 553/88 [as am.] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 60.11, 60.12

Daniel C. Santoro, for appellant. Susan Magotiaux, for respondent.

The judgment of the court was delivered by

1WATT J.A.: -- Over 15 years ago, the Attorney General of Ontario sought and a judge granted an interlocutory injunction prohibiting anti-abortion protest activity at various places in [page250] Ontario, including the Scott Clinic in Toronto. Among the activity enjoined was the display of signs within 60 feet of the clinic property. Among the persons named in the injunction was Linda Gross, now known as Linda Gibbons.

2On October 8, 2008, the interlocutory injunction remained in force. On that day, Linda Gibbons displayed a sign within 60 feet of the Scott Clinic property. She was charged with disobeying a court order under s. 127(1) of the Criminal Code, R.S.C. 1985, c. C-46 that provides:

127(1) Every one who, without lawful excuse, disobeys 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, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

3The principal issue here is whether Ms. Gibbons' conduct falls within or beyond the reach of s. 127(1) because another "punishment or other mode of proceeding is expressly provided by law" for her conduct, under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules").

4In my view, for the reasons that I will develop, the conduct alleged falls within the sweep of the offence created by s. 127(1) and is not excluded from its operation by the availability of a proceeding for contempt in accordance with the Rules. Although I would grant Ms. Gibbons (the "appellant") leave to appeal on this ground, I would dismiss her appeal.

The Background

The trial proceedings

5The prosecutor elected to proceed by summary conviction. Counsel entered a plea of not guilty on behalf of the appellant, then applied to quash the information on the ground that s. 127(1) was inapplicable to the conduct alleged against the appellant because the Rules expressly provided for another mode of proceeding to punish the same conduct, a motion for a contempt order.

6The trial judge quashed the information. He reasoned that since the appellant's alleged conduct was disobedience of a civil order, the appropriate enforcement mechanism was a motion for a contempt order under the Rules. He considered that the Rules, in particular rules 60.11 and 60.12, were "a punishment or other [page251] mode of proceeding . . . expressly provided by law", within the exception in s. 127(1), thus rendering the section inapplicable to the appellant's alleged conduct.

The summary conviction appeal

7The prosecutor appealed the order quashing the information laid against the appellant, in all likelihood under s. 830(1) of the Criminal Code: see R. v. Moore, 1987 6798 (ON CA), [1987] O.J. No. 870, 38 C.C.C. (3d) 471 (C.A.), at pp. 474-75 C.C.C.

8The summary conviction appeal court judge (the "SCAC judge") allowed the appeal, set aside the order quashing the information and ordered a new trial.

9The SCAC judge determined that rules 60.11 and 60.12 do not amount to "a punishment or other mode of proceeding . . . expressly provided by law" within the exception of s. 127(1). The SCAC judge concluded that, despite the inclusion of greater detail in the Rules governing motions for contempt orders than had been the case when R. v. Clement, 1981 212 (SCC), [1981] 2 S.C.R. 468, [1981] S.C.J. No. 93 was decided, the decision in Clement remained controlling. The Rules did not expressly provide a punishment or other mode of proceeding. The exception in s. 127(1) did not apply. The appellant's conduct was governed by s. 127(1), not beyond its reach. She ordered a new trial.

The Grounds of Appeal

10The appellant seeks leave to appeal under s. 839(1)(a) of the Criminal Code from the decision of the SCAC judge. The question of law the appellant seeks leave to argue involves the interpretation of the exception in s. 127(1) of the Criminal Code captured in the words "a punishment or other mode of proceeding . . . expressly provided by law". To be more specific, the appellant contends that rules 60.11 and 60.12 expressly provide a punishment or other mode of proceeding to coerce compliance with (or punish disobedience of) the interlocutory injunction, [and] thus render s. 127(1) inapplicable and warrant an order quashing the information.

11The appellant also seeks leave to argue that, if s. 127(1) does apply to the appellant's alleged conduct, the proceedings against her should be stayed as an abuse of process. The appellant filed an application to stay proceedings at trial, but advanced no argument on the issue at trial or before the SCAC judge. [page252]

Analysis

The first ground: The applicability of s. 127(1)

The positions of the parties

12For the appellant, Mr. Santoro submits that under Clement the term "law" means statute law, both federal and provincial. The Rules are regulations made under s. 66 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Thus, the Rules are "law" for the purposes of the exception in s. 127(1).

13The appellant submits that rules 60.11 and 60.12 are specific and comprehensive provisions that authorize and govern proceedings to obtain a contempt order, not simply an expression of the common law power. These rules put in place, along with more general rules relating to motions, a comprehensive scheme for enforcement of civil orders, like injunctions. Rules 60.11 and 60.12 expressly provide an "other mode of proceeding" to ensure enforcement of civil orders like the injunction in this case. In the result, the appellant says, rules 60.11 and 60.12 fall within the exception in s. 127(1), thus exclude the application of the prohibition contained in that section to the allegations made here.

14Mr. Santoro characterizes his position as consistent with the underlying purpose of s. 127, that is, to acknowledge that the primary enforcement agency for court orders (made in civil cases) is not the blunt instrument of the criminal law, but rather the processes of the court that made the order a party seeks to enforce.

15For the respondent, Ms. Magotiaux offers no objection to leave being granted on the interpretation of the exception contained in s. 127(1) of the Criminal Code. The issue raised transcends the specific circumstances of this case, involves a question of statutory interpretation and is of general importance to the administration of justice.

16Ms. Magotiaux contends that the Rules, in particular rules 60.11 and 60.12, do not expressly provide a "punishment or other mode of proceeding" for disobeying a court order.

17The respondent says that these rules formulate the practice to be followed to invoke the inherent power of the Superior Court to punish for contempt of its orders. But they do not create the legal foundation for contempt as a mode for proceeding to enforce judicial orders. The foundation authority is the common law. Without the rules, the court retains the power to punish contempt. And a common law jurisdiction is [page253] not "expressly provided by law", as Clement in s. 127(1) requires to render the subsection inapplicable.

18Ms. Magotiaux reminds that Clement requires a comprehensive mode of proceeding or punishment. To come within the exception requires a provision that furnishes express and specific means to enforce an order. Procedural rules of general application are inadequate. Despite their greater detail, rules 60.11 and 60.12 do not remove Clement as the controlling precedent.

19Ms. Magotiaux submits that her interpretation of the exception in s. 127(1) sits comfortably with the purpose that underlies the section. The public interest requires a criminal law response to breaches of court orders, civil as well as criminal. The appellant's interpretation would neuter s. 127 as a device to compel obedience to civil orders, thereby rendering of no effect the holding in Clement that the section applies to all court orders, whether made in civil or criminal proceedings. Parliament intended that the exception be narrow, not so expansive as to reduce by half what the prohibition takes in.

The offence in s. 127(1)

20Section 127(1) began life as an indictable offence in s. 139 of the Criminal Code, 1892, S.C. 1892, c. 29. It came from s. 115 of the English Draft Code, where the "other mode of proceeding" had not only to be "expressly provided by law", but also to be "intended to be exclusive of all other punishment for such disobedience".

21In its material parts, s. 127(1) provides:

127(1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice . . . other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of . . .

22The nub of the offence in s. 127(1) is disobedience of a lawful order made by a court of justice or other authorized person or body of persons. The order must not be for the payment of money. The person charged with disobedience can escape liability if she or he had a lawful excuse for disobeying the order.

23Nothing in the subsection, for that matter in any related provision of the Corruption and Disobedience subdivision of Part IV, Offences Against the Administration of Law and Justice, apart from the words "other than an order for the payment of money", restricts or limits the nature of the order or of the proceedings in which the order may be granted. The words "lawful order made by a court of justice" include orders [page254] made in both civil and criminal proceedings: Clement, at p. 472 S.C.R. Thus, leaving aside for the moment the effect of the exception, "unless a punishment or other mode of proceeding is expressly provided by law", disobedience of an injunction by a person bound by it, in the absence of a lawful excuse, would fall within the prohibition of s. 127(1) and attract liability under it.

The exception in s. 127(1)

24Section 127(1) creates a criminal offence. But it also creates an exception for certain conduct that would otherwise attract liability. To be excepted from the prohibition, the conduct must be subject to a "punishment or other mode of proceeding . . . expressly provided by law".

25What is advanced here as a "punishment or other mode of proceeding . . . expressly provided by law" to render the criminal prohibition enacted by s. 127(1) inapplicable is the authority of the Superior Court to punish those who disobey court orders for contempt. It is well established that s. 127(1) does not supersede the power of a court of justice to punish summarily for contempt committed in the face of the court: Gerson (Re), 1946 51 (SCC), [1946] S.C.R. 547, [1946] S.C.J. No. 26, affg 1946 16 (SCC), [1946] S.C.R. 538, [1946] S.C.J. No. 25, at pp. 544-45 S.C.R.

26To determine whether the authority to punish for contempt of a court order meets the requirements of the exception in s. 127(1), it is essential to determine the source of the contempt power. Section 9 of the Criminal Code refers to the power, jurisdiction and authority of "a court, judge, justice or provincial court judge . . . to impose punishment for contempt of court". A Superior Court has the inherent power to control its own processes and to enforce its judgments by citation for contempt. The third potential source, relied upon here, is the Rules promulgated under the Courts of Justice Act.

27Section 9 of the Criminal Code contains no enactment of the contempt power; rather, [it] preserves the existing common- law jurisdiction to punish for criminal contempt: Clement, at pp. 473-74 S.C.R. In a similar way, the inherent power of the Superior Court to control its own process, more specifically to enforce its judgments by citation for contempt, equally rooted in the common law, affords no express authority for a "punishment or other mode of proceeding". In the result, neither meets the "expressly provided by law" requirement of the exception in s. 127(1): Clement, at pp. 475-76 S.C.R.

28The decision of the Clement court limits the phrase "by law" in the exception in s. 127(1) to statute law: Clement, at pp. 476-77 S.C.R. [page255] It is only statute law that can be "expressly provided": Clement, at pp. 476-77 S.C.R. The common law, ever evolving and malleable, does not expressly provide a mode of proceeding.

29Section 127(1) is available as a basis for a charge for disobedience of a lawful court order whenever statute law, including regulations made under an enabling statute, does not expressly provide a punishment or other mode of proceeding, but not otherwise: Clement, at p. 477 S.C.R.

30To say that the phrase "by law" in the exception in s. 127(1) is restricted to statute law is of little value without further definition. Federal statutes only? Federal statutes and regulations exclusively? Provincial statutes as well? Provincial statutes and regulations too?

31Although it does not provide a clear, crisp demarcation of the scope of the term "by law" in s. 127(1) and its own equivalent, "by statute law", the Clement court did offer some assistance in determining the meaning to be assigned to the phrase.

32In Clement, as here, the legal foundation advanced for the inapplicability of the section, the "expressly provided by law" of the exception, were the rules of court promulgated under a provincial statute. In other words, the appellant invoked regulations promulgated under a provincial statute as the basis upon which s. 127(1) was said to be inapplicable.

33The appellant did not fail in Clement because the authority he invoked was a provincial regulation. The appellant failed in Clement because the regulation did not provide the legal foundation for contempt proceedings, only preserved the common law inherent power in much the same way as s. 9 of the Criminal Code: Clement, at p. 475 S.C.R. Since the common law did not satisfy the "expressly provided by law" requirement of the exception, the prohibition remained applicable.

34Later authorities have considered provincial legislation as engaging the exception in s. 127(1) and rendering the offence created by this section inapplicable to conduct captured by the provincial legislation: see, e.g., R. v. Dawson, 1995 NSCA 151, [1995] N.S.J. No. 306, 100 C.C.C. (3d) 123 (C.A.), at p. 132 C.C.C.; R. v. Nutter, 1999 NSCA 47, [1999] N.S.J. No. 27, 173 N.S.R. (2d) 284 (C.A.), at paras. 3-4. Other provincial appellate courts have considered various rules of civil procedure as a "punishment or other mode of proceeding . . . expressly provided by law". In two instances, the courts have reached the same conclusion as in Clement, that the applicable rules do not engage the exception: R. v. Fairchuk, 2003 MBCA 59, [2003] M.J. No. 119, 173 C.C.C. (3d) 503 (C.A.), at paras. 34-35, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 339, 178 C.C.C. (3d) vi; [page256] R. v. Rent, 1989 9593 (NS CA), [1989] N.S.J. No. 177, 91 N.S.R. (2d) 112 (C.A). In R. v. Gaudreault, 1995 5075 (QC CA), [1995] J.Q. no. 1337, 105 C.C.C. (3d) 270 (C.A.), at p. 276 C.C.C., the Quebec Court of Appeal held that arts. 49-51 of the Code of Civil Procedure, R.S.Q. c. C-25 enacted by the National Assembly of Quebec fell within the terms "expressly provided by law" in s. 127(1), thus rendered the Code provision inapplicable in a prosecution for breaching a non-communication term in a family law order.

Discussion

35The appellant rests her case for the inapplicability of s. 127(1) to her alleged conduct on the ground that rules 60.11 and 60.12 constitute a "punishment or other mode of proceeding . . . expressly provided by law". It follows, according to the appellant, that her alleged conduct cannot be prosecuted under s. 127(1). For the reasons that follow, I disagree.

36To begin, the mere availability of other modes of proceeding to address the same conduct does not, without more, remove a prosecution under s. 127(1) from the remedies available to punish non-compliance: Clement, at p. 478 S.C.R. It is only where the other avenue falls within the language of the exception imbedded in s. 127(1) that the offence of s. 127(1) becomes inapplicable, unavailable as an enforcement mechanism: Clement, at p. 478 S.C.R.

37To fall within the exception in s. 127(1), rules 60.11 and 60.12 must be (i) a punishment or other mode of proceeding; (ii) created by or originating in statute law; and (iii) expressly provided.

38A punishment or other mode of proceeding that originates in the common law does not meet the requirements of the exception since its origin is not statutory and it is not "expressly provided": Clement, at pp. 475-76 S.C.R.

39The authority to punish disobedience or compel compliance by proceedings for contempt originates in the common law. Section 9 of the Criminal Code does not expressly enact the power to punish for criminal contempt, rather merely preserves the common law jurisdiction to do so: Clement, at p. 473 S.C.R. The authority to punish for civil contempt equally resides in the common law: the authority of the Superior Court to control its own process. It is the common law that furnishes the legal foundation for a proceeding for contempt: Clement, at pp. 475-76 S.C.R. [page257]

40Contempt is an "other mode of proceeding" within s. 127(1) of the Criminal Code. But not every "other mode of proceeding" will mobilize the exception in s. 127(1). The source of the "other mode of proceeding" must be "expressly provided by law". And "by law" means statute law, not common law: Clement, at p. 477 S.C.R.

41Rules 60.11 and 60.12 are much more detailed, specific and comprehensive provisions for litigants who seek a contempt order than those portions of the Court of Queen's Bench Rules, Man. Reg. 553/88 of Manitoba under consideration in Clement. But, in the end, rules 60.11 and 60.12 do not furnish the legal foundation for a proceeding for contempt. The Rules specify the procedure to be followed in a proceeding for civil contempt, but do not establish the authority to take contempt proceedings. Despite their elegant detail, rules 60.11 and 60.12 are as much dependent on the common law for their legal foundation as were the Rules under scrutiny in Clement.

42It may also be open to question whether procedural rules of general application promulgated under a provincial statute can be gathered within the "expressly provided" or "mode of proceeding" language of the exception.

43It is of some interest to note that the example offered by the Clement court as a "punishment or other proceeding . . . expressly provided by law", thus within the exception of s. 127(1), was then s. 472 (now s. 545) of the Criminal Code, which authorizes the presiding justice at a preliminary inquiry to take proceedings against and punish witnesses who refuse to be sworn, to answer questions, to produce writings or to sign a deposition at a preliminary inquiry. The section creates the authority to proceed against the recalcitrant witness and provides for the punishment that may be imposed.

44Various provincial statutes contain provisions that authorize a specific proceeding for disobedience of lawful orders that would otherwise be cognizable under s. 127(1) of the Criminal Code. These provisions exemplify what the Clement court considered to be within the exception in s. 127(1): see, e.g., Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 38; Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 104-109; Family Law Act, R.S.O. 1990, c. F.3, s. 49. The Criminal Code contains similar provisions: see, e.g., s. 145(3), (5.1) (failure to comply with conditions of undertaking or recognizance); ss. 486.6(1), 517(2), 648(2) (failure to comply with publication bans). These Criminal Code provisions create an offence and prescribe the maximum punishment for that offence. Other Criminal Code provisions describe the disobedience offences as contempt: [page258] see, e.g., s. 605(2) (disob eying an order releasing exhibits for testing); s. 708(1) (failure to attend or remain in attendance to give evidence). In each of these instances, a prosecution under s. 127(1) would be barred.

45It is worth reminder that the Clement court found it unnecessary to decide whether the term "by law" is confined to federal statutes or whether it includes both federal and provincial statutes: Clement, at p. 477 S.C.R. In light of the conclusion I have reached about the legal foundation for a proceeding for contempt of court, it is probably unnecessary to resolve the question left unanswered by Clement in this case. What might be said, however, is that neither Clement nor any of its progeny foreclose provincial statute law (including regulations) as potentially capable of engaging the exception in s. 127(1) of the Criminal Code. Indeed, in each case what the courts considered, and in both Dawson and Nutter found to fall within the exception, was provincial legislation or rules of practice promulgated under a provincial statute.

46The appellant's reliance on Gaudreault to lend a hand to her submission that rules 60.11 and 60.12 expressly provide a "punishment or other mode of proceeding" for the purposes of s. 127(1) of the Criminal Code is misplaced. From Gaudreault, it is clear that the authority to punish contempt was expressly given by art. 49 of the Code of Civil Procedure and the punishment prescribed by art. 51. Rules 60.11 and 60.12 contain no similar provisions.

47I would not give effect to this ground of appeal.

The second ground: Abuse of process

The background

48The appellant filed a notice of application at trial to stay proceedings for abuse of process. She invoked s. 24(1) of the Canadian Charter of Rights and Freedoms in aid of the application, but filed no material beyond the notice, a factum and a book of authorities.

49At trial, the appellant proceeded first with her application to quash the information because s. 127(1) did not apply to the conduct alleged in the information. When the trial judge quashed the information, the appellant made no submissions on her application to stay proceedings.

50The appellant did not advance any argument about abuse of process in response to the prosecutor's summary conviction appeal. [page259]

51After filing her notice of appeal from the decision of the SCAC judge, the appellant applied to a single judge of this court for leave to raise the abuse of process argument on appeal. The single judge referred the leave application to the panel hearing the appellant's appeal.

The positions of the parties on appeal

52The appellant says that leave to appeal should be granted. The record below is complete. No evidence is required to determine the issue. The facts are uncontroverted. An interlocutory injunction granted in 1994 to a plaintiff, the Attorney General of Ontario, who was bound to pursue the claim for a permanent injunction but never did. The same official, 14 years later, prosecutes the appellant for disobeying the injunction. No contempt proceedings initiated. The inference of an abuse of process is irresistible from these primary facts. A stay of proceedings is the appropriate remedy.

53The respondent resists the application for leave to appeal on this ground. The point was never argued at trial nor on summary conviction appeal. All the facts necessary to determine the issue are not in the record. Singular by its absence is any evidence about the conduct of the Crown. When the interests of both parties are balanced, it would not be unjust not to deal with this issue.

54Ms. Magotiaux takes the further position that the claim of abuse of process is without merit. At its core, the appellant's claim is a thinly-veiled collateral attack on the validity of an interlocutory injunction granted 15 years ago. Collateral attacks are off limits, themselves little less than an abuse of process. Injunctions are dissolved by process of law, not disobedience of their terms. The claim lacks an air of reality.

The leave requirement

55Under s. 839(1)(a) of the Criminal Code, the appellant requires leave to appeal from the decision of the summary conviction appeal court. The proposed ground of appeal must involve a question of law alone. Leave to appeal under s. 839(1)(a) is to be granted sparingly, all the more so where the proposed ground of appeal was not raised or argued before the summary conviction appeal court and raised but not argued at trial.

56Two factors are influential in the exercise of discretion involved in the determination of whether leave to appeal should be granted under s. 839(1)(a): [page260] (i) the significance, beyond the particular case, of the proposed question of law to the general administration of justice; and (ii) the merits of the proposed ground of appeal. R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468, 234 C.C.C. (3d) 463 (C.A.), at para. 37.

57Other principles are also at work in the determination of whether the appellant should be permitted to raise as a ground of appeal before a second level appellate court a ground not previously argued. To raise a new issue on appeal requires a sufficient evidentiary record to permit determination of the issue. The issue must not be one that the appellant failed to raise at trial for tactical reasons. And the appellate court must be satisfied that no miscarriage of justice will result from refusal to permit the new issue to be raised on appeal: R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, at p. 927 S.C.R.

Abuse of process

58An abuse of process may be established where the proceedings are oppressive or vexatious and violate the fundamental principles of justice underlying the community's sense of fair play and decency: R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at p. 1007 S.C.R.; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, at para. 50.

59A stay of proceedings is only one remedy for an abuse of process, albeit the most drastic remedy. Regardless of whether the abuse causes prejudice to an accused, because of an unfair trial, or to the integrity of a justice system, a stay of proceedings is only appropriate when: (i) the prejudice caused by the alleged abuse will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (ii) no other remedy is reasonably capable of removing the prejudice. R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 75; Regan, at para. 54.

Discussion

60I would not grant the appellant leave to raise the abuse of process argument on appeal. [page261]

61To take first the leave requirement under s. 839(1)(a) of the Criminal Code, the issue raised is governed by well- settled principles of law and has no significance to the administration of justice beyond the singular facts of this case. In the absence of any semblance of an evidentiary record, the proposed ground lacks any reasonable prospect of success, much less arguable merit.

62The leave requirement to permit the appellant to raise a ground of appeal not raised at trial or on summary conviction appeal is equally inhospitable to the appellant. It was for the appellant to establish an abuse of process and the appropriateness of a stay of proceedings as a remedy for it. Yet the appellant, in a bare-bones notice of application, made no reference to any evidence to be relied upon in support of her application. To refuse the appellant leave to raise this ground on a second appeal does her no injustice in all the circumstances.

63I would not grant the appellant leave to raise abuse of process as a ground of appeal.

Conculsion

64For these reasons, I would grant leave to appeal on the ground involving the interpretation of the exception in s. 127(1) of the Criminal Code, but dismiss the appeal on that ground and refuse leave to appeal on the abuse of process ground.