R. v. Gibbons, 2024 ONCJ 638

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 12 05 COURT FILE No.: Toronto Region Information Number: 4810 998 24 48127687- 00

B E T W E E N :

HIS MAJESTY THE KING

— AND —

LINDA GIBBONS

Before: Justice M. Speyer

Heard on: September 19, 2024 and November 6, 2024 Reasons for Judgment delivered orally: December 5, 2024

Counsel: M. Bloch ................................................................................................ counsel for the Crown A. Wine ................................................................................................................. Amicus Curiae

SPEYER J.:

1Linda Gibbons is charged that on June 12, 2024 she wilfully interfered with the lawful operation of property, namely the Toronto Abortion Clinic, and did thereby commit mischief contrary to section 430(1)(c) of the Criminal Code.

Subsections 430(1) and (7) of the Criminal Code state:

430 (1) Everyone commits mischief who wilfully

(c) obstructs, interrupts or interferes with the lawful use, enjoyment, or operation of property.

(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling house or place for the purpose of obtaining or communicating information.

A preliminary comment

2Throughout these proceedings, Ms. Gibbons attended court as required, was responsive to direction, and was at all times respectful. However, for reasons unknown, Ms. Gibbons chose not to speak during the court process. In likely anticipation of Ms. Gibbons declining to participate in the process, prior to commencement of trial, Justice Tuck-Jackson appointed amicus to assist the court in order to ensure the orderly conduct of proceedings and, importantly in this case, to make available to the court all relevant submissions. Mr. A. Wine accepted the appointment of amicus and acted in that role during this trial. As Ms. Gibbons would not respond when arraigned, a plea of not guilty was entered on her behalf pursuant to s. 606(2) of the Code.

The evidence

3The evidence in this matter is largely uncontradicted.

4On the morning of June 12, 2024 Ms. Gibbons was picketing in front of 727 Hillsdale Ave. East in Toronto. This is the address of the Toronto Abortion Clinic. The entrance to the clinic is at the end of a short walkway off the public sidewalk. On this morning, Ms. Gibbons was walking back and forth on the public sidewalk in front of the walkway, carrying a large sign with an illustration of an infant and the words, “Why mom when I have so much love to give”.

5Michelle Hohenberger is an employee of the clinic. She works in accounts. The purpose of the clinic is to provide abortion services. Ms. Hohenberger knows Ms. Gibbons because she has picketed this clinic in the past. Indeed, Ms. Hohenberger was a witness for the Crown in another proceeding against Ms. Gibbons in 2016.

6Ms. Hohenberger testified, and I accept, that sometime between 9 and 9:30 a.m. she observed Ms. Gibbons from the window of her office. She testified that Ms. Gibbons walked approximately 6 feet back and forth on the sidewalk. She never stepped onto the walkway leading to the clinic door. Ms. Hohenberger observed two patients approach the clinic and saw Ms. Gibbons speak to them calmly, as they walked around her. She did not hear what Ms. Gibbons said. One of the patients stepped over a low garden wall to step onto the walkway. The other patient walked around Ms. Gibbons. Both patients entered the clinic after walking past her.

7Ms. Hohenberger also observed Ms. Gibbons try to give a card to one of the patients, who shook her head and walked past. There is no evidence of what was written on the card.

8Ms. Hohenberger testified that as a result of Ms. Gibbons’ presence at the front of the clinic, she and the staff implemented what she referred to as their “protester protocols”. This involved notifying the building’s property manager to arrange an alternate entrance for patients; contacting patients who were booked to advise them of Ms. Gibbons’ presence and instructing them to use the Bayview entrance to avoid her; opening a back door for patients which resulted in the fire alarm going off; and meeting patients at the back door to escort them into the clinic. She testified that Ms. Gibbons’ presence put everyone on heightened alert, was upsetting to her, staff and patients and was disruptive to the day to day operation of the clinic. On the other hand, Ms. Hohenberger agreed that the clinic did not temporarily close and nor was she aware of any patient cancelling their procedure because of Ms. Gibbons’ picketing.

9According to PC Kuhi, he and PC Cullen were dispatched to the clinic at 10:27 a.m. and arrived at 10:38 a.m. The call for service was for an unwanted trespasser. He observed Ms. Gibbons on the sidewalk in front of the clinic with her sign. He arrested Ms. Gibbons at 10:44 a.m. and put her in the scout car.

10PC Cullen testified that shortly after she arrived, she saw a male and female approach the clinic walkway while Ms. Gibbons was holding her sign. The female was crying. They had no interaction with Ms. Gibbons and proceeded to the Hillsdale Rd. entrance.

11Rachel Foote is a student counsellor at the clinic. Her job includes greeting patients when they arrive and to speak to them about what to expect during and after the procedure. On the morning of June 12, 2024, she observed Ms. Gibbons on the sidewalk and told Ms. Hohenberger, who called police. She volunteered that she finds Ms. Gibbon’s behaviour to be “disgusting” as she is a firm believer in women’s reproductive rights.

12Ms. Foote testified that she spoke to several patients who arrived at the clinic while Ms. Gibbons was picketing. It is not clear from her evidence how many patients arrived before Ms. Gibbons was arrested at 10:44 a.m. Ms. Foot testified these patients were very emotional and angry that Ms. Gibbons was there. One patient was very emotional, crying and said she did not want to go through with the procedure. This patient asked to leave the clinic through another exit to avoid seeing Ms. Gibbons. During cross examination, Ms. Foot agreed that patients who come to the clinic are normally in an emotional and anxious state because of the nature of the procedure. She testified that Ms. Gibbons’ presence just made this worse.

My Findings of Fact

1. Ms. Gibbons was present at the abortion clinic for the purpose of communicating a message: namely, her opposition to abortion and to persuade others as to her point of view.
2. Ms. Gibbons was at all times carrying on her protest on a public sidewalk. She never stepped onto the walkway leading to the door of the clinic.
3. The clinic’s operations continued without interruption. Abortions scheduled for that day were carried out. Protest protocols were implemented by the clinic, and it carried on operations albeit with some inconvenience.
4. Ms. Gibbons did not accost or harass any of the clinic’s patients, nor is there any evidence that she interfered with their entry to the clinic. At most, two patients walking on the sidewalk stepped around her to gain entry.
5. I find that Ms. Gibbons’ presence at the clinic caused emotional distress to staff and patients.
6. Ms. Gibbons was not trespassing or unlawfully on property. The Crown did not file or rely on any injunction which curtails protesting near the Toronto Abortion Clinic.

Governing principles

13The guiding principles applicable to this case are set out in R. v. Dooling, 1994 NLCA 10215. That case involved the question of when and in what manner a person has the right to express themselves in the course of picketing during a lawful strike without committing the offence of mischief under s. 430(d) of the Criminal Code. Although Ms. Gibbons is charged under s. 430(c), the wording in both subsections is the same and, in my view, the same principles apply.

14In R. v. Dooling, supra, the accused was in a building lobby picketing a drugstore whose employees were in a legal strike position. Mr. Dooling, and one other picketer, were outside the store, standing beside the doors, holding a sign. Customers were not physically prevented in any way from entering the store and aside from having, in some cases, to alter their path of travel to avoid the picketers, did in fact enter the store and leave without incident. The store owner asked the picketers to leave, and they refused, at which time the police were called, and they were charged with mischief.

15In setting aside the conviction and entering an acquittal, Justice Green of the NLCA at para 24 held,

[24] In order to constitute the external circumstances of this offence, there must be some physical act on the part of the accused which operates as, or has the effect of causing, some sort of obstruction, interruption or interference with the use or enjoyment or potential use or enjoyment, of the property in question that goes beyond the mere communication of information through picketing.

And, further at para. 26, the court held:

[26] Where persons peaceably attend at business premises and the only act which is complained of is the communication of information by picketing, without any physical obstruction, interruption or inference, the fact that persons may be persuaded voluntarily not to do business with the struck employer, thereby causing business disruption and thereby incidentally interfering with the employer's enjoyment of his property, does not, in my view, constitute obstruction, interruption or interference for the purpose of s. 430(1)(d). It is not the act of the accused which causes the obstruction, interruption or interference, but the voluntary decision of the persons dealing with the employer not to deal with the employer, which causes the interruption. The fact that the employer's attention gets diverted from his business to dealing with the actions of the accused is simply the inevitable consequence of the give and take of the economic pressures that are necessarily incidental to any labour dispute.

16The court in Dooling then considered the application of s. 430(7) of the Code:

[34] I turn now to the applicability of s. 430(7) to this case. It provides that no person commits mischief within the meaning of s. 430 by reason only that he or she attends at or near a place "for the purpose only of obtaining or communicating information". Whether this is to be interpreted as an exception to the general charging provision or is to be regarded as an aid in the interpretation of it, the end result is the same: acts which might otherwise be technically regarded as resulting in an obstruction, interruption or interference will not be so regarded for the purpose of the offence of mischief if the nature of the act is such that it amounts to mere presence ("attendance") at a place, and is incidental to a purpose of communicating information. It relates not only to the mental element of the offence, but also to its external circumstances inasmuch as certain obstructions, interruptions or interferences so regarded in common parlance, will not be considered to be such for the purpose of s. 430(1). Section 430(7) thus helps in defining the parameters of the offence of mischief under s. 430(1)(d).

17The trial judge in Dooling found that the accused’s actions were intended to not only communicate information, but also to persuade customers not to do business with the pharmacy. In rejecting this reasoning, the court held that the fact that communication of information will likely be for the purpose of persuasion ought not to take away the defence provided under s. 430(7). As the court pointed out, most communicated information is designed to educate, convince or persuade. The defence of s. 430(7) remains available, provided the only thing done is the communication of that information. The results of that communication are irrelevant (see para. 37 to 39).

18In R. v. Tremblay, 2010 ONCA 469, our Court of Appeal was required to determine the scope of the defence to the offence of mischief set out in s. 430(7). Blair, J.A. approved and adopted the reasoning of Justice Green in Dooling and held that the same principles apply to non-labour cases. Section 430(7) must be interpreted in a manner that is consistent with the preservation of the right to freedom of thought and expression guaranteed in the Charter of Rights. At para. 21, Justice Blair held,

In my view, s. 430(7) protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results of that communication were to interfere with or interrupt the use or enjoyment of another person’s property.

Decision

19Ms. Gibbons presence outside the Toronto Abortion Clinic with her sign was meant to dissuade patients from having an abortion, something they have a legal right to do. The message on the sign was no doubt very upsetting to patients and staff. It may also have resulted in one patient cancelling or postponing the procedure. Even if that was Ms. Gibbons’ intended result, it does not amount to criminal mischief to property.

20Ms. Gibbons did not accost anyone or impede any patient as they made their way to the clinic, other than having to step around her. Nor is there any evidence that Ms. Gibbons blocked or in any way obstructed the entrance to the clinic. Similarly, there is no evidence that Ms. Gibbons intimidated anyone at the clinic or approaching the clinic. Ms. Gibbons did not harass people in the area, she was not violent, she did not trespass.

21The Crown relies on R. v. Gibbons, 2016 ONCJ 40, a decision of Justice Wong where Ms. Gibbons was charged with breach of a court order under s. 127(1) of the Code for violating conditions of a permanent injunction against protestors at the Morgentaler Clinic, which is the predecessor to the Toronto Abortion Clinic. In that case, Ms. Gibbons was doing essentially the same thing as she did in the case before me. Justice Wong found that Ms. Gibbons’ conduct was intended to interrupt the work of the clinic and she was therefore in violation of the injunction. This case does not assist the Crown. The charge under consideration in that case was s. 127 of the Code. Under that section, Ms. Gibbons could not avail herself of the defence afforded to her under s. 430(7).

22In conclusion, I am not persuaded that Ms. Gibbons did anything other than attend near the clinic for the purpose of communicating information to patients for the purpose of dissuading them from having an abortion. Section 430(7) provides a complete defence to this activity, and she is not guilty of mischief as charged.