COURT OF APPEAL FOR ONTARIO
Juriansz J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Linda Gibbons
Appellant/Applicant
Nicolas Rouleau, for the applicant
Jennifer Mannen, for the respondent
Heard: December 17, 2013
On application to appoint counsel pursuant to s. 684 of the Criminal Code on an application for leave to appeal from the judgment of Justice Gary T. Trotter of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated March 15, 2013, with reasons reported at 2013 ONSC 1403, dismissing the appeal from the conviction entered on April 12, 2011, by Justice Mara B. Greene of the Ontario Court of Justice.
1This is an application for funding under s. 684 of the Criminal Code, R.S.C. 1985, c. C.46 (the “Code”).
2The applicant was found guilty by a judge of the Ontario Court of Justice on a charge of disobeying a court order, contrary to s. 127 of the Code. The court order she breached was an interlocutory injunction made in a civil case in 1994. In 1994, the applicant was a named defendant in Ontario (Attorney General) v. Dieleman (1994), 1994 10546 (ON SC), 20 O.R. (3d) 229 (Gen. Div.). The applicant and the other defendants were engaging in protests outside of abortion clinics, including the Scott Clinic in Toronto. The Attorney General obtained an interim injunction prohibiting the applicant and others from being within 60 feet of the clinics while they were open, and from engaging in a number of specified activities in the vicinity of the clinics. The case never proceeded to trial and the interim injunction has remained in force.
3The applicant was found guilty of disobeying the order in January 2009 by standing directly in front of the Scott Clinic and holding a sign. The police cautioned the applicant and asked her to move. When she refused, she was arrested, charged and convicted of a breach of s. 127. Her appeal to the Superior Court of Justice was dismissed, and she wishes to seek leave to appeal to this court. She has been refused a legal aid certificate by the Group Applications and Test Cases Committee of Legal Aid Ontario.
4The applicant seeks to raise two arguments on appeal. She challenges the constitutionality of s. 127 and argues that the proceedings against her should be stayed as an abuse of process. Counsel for both the applicant and the Crown agree that the application turns on the merit of the proposed appeal. I am satisfied the applicant cannot advance the complex legal arguments herself, and the parties agree that the applicant meets the other criteria for funding. Counsel did not provide a case defining the standard to be met to obtain s. 684 funding for an application for leave to file a second appeal. The usual merits test for funding a first appeal is laid out by Doherty J.A. in R. v. Bernardo (1997), 1997 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.). In my view, when the issue is an application for leave to file a second appeal, the applicant must establish that it is reasonably arguable that leave to appeal should be granted.
5I will consider the applicant’s arguments in light of this standard.
(1) The constitutional argument
6Section 127(1) of the Code provides as follows:
- (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. [Emphasis added.]
7The applicant’s argument focuses on the excepting phrase “unless a punishment all other mode of proceeding is expressly provided by law”. She submits that the excepting phrase of s. 127 impermissibly delegates to the provinces a role in defining what behavior is criminalized. A province by enacting an “other mode of proceeding” is able to determine the scope of behavior to which s. 127 applies. Neither of the courts below dealt with this aspect of the applicant’s argument. I consider that it is reasonably arguable that leave to appeal should be granted on this issue.
(2) The abuse of process argument
8The abuse of process argument is not as clear. The trial judge found as a fact that all parties were content with the pace of the litigation. The confusion about whether the applicant was represented was due to a “minor misstep” and did not result in any prejudice to her. She was well aware of the interim injunction was still in force when she engaged in protest in front of the Scott Clinic in January 2009. A finding of abuse of process is reserved for the clearest of cases and the applicant cannot launch a collateral attack on the validity of the order: see R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 33-42.
9Counsel for the applicant submits there is no collateral attack. He recognizes the validity of the order but argues it is unenforceable against her. He submits that the Attorney General, upon obtaining an interim injunction that interferes with the freedom of expression of an individual, has a duty to move the case forward to trial to avoid an order intended to be temporary remaining in place permanently.
10In my view the applicant’s position is weak but reasonably arguable on a leave application. The standard of reasonably arguable does not require that I be satisfied at this stage that leave to appeal should be granted.
(3) Conclusion
11In my opinion, it is desirable in the interests of justice that the applicant be represented and that counsel be appointed to represent her on an application for leave to appeal to this court, and if leave is granted, on the appeal. Should Legal Aid decline to issue a certificate on a reconsideration contemplated under s. 28(6) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, an order under s. 684 shall issue.
Released: December 20, 2013
“R.G. Juriansz J.A.”