Court of Appeal for Ontario
Citation: R. v. Gibbons, 2015 ONCA 47
Date: 2015-01-26
Docket: C56895
Feldman, Simmons and Pepall JJ.A.
Between
Her Majesty the Queen Respondent
and
Linda Gibbons Appellant
Nicolas M. Rouleau and Daniel C. Santoro, for the appellant
Susan Magotiaux, for the respondent
Heard: January 16, 2015
On appeal from the judgment of Summary Conviction Appeal Judge Gary T. Trotter of the Superior Court of Justice 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, with reasons reported at 2010 ONCJ 470 and 2011 ONCJ 218.
By the Court:
[1] The appellant seeks leave to appeal a summary conviction appeal court judge’s order dismissing an appeal from a conviction under s. 127 of the Criminal Code, R.S.C. 1985, c. C-46. Section 127 makes it an offence to disobey a lawful order, other than an order for the payment of money, without lawful excuse, “unless a punishment or other mode of proceeding is expressly provided by law”.[^1]
[2] On January 20, 2009, the appellant breached an interlocutory injunction, issued in 1994 by a judge of the Ontario Court (General Division), which prohibits anti-abortion protests within 60 feet of certain abortion clinics.
[3] At trial, the appellant did not contest the Crown’s assertion that she acted in a manner that violated the terms of the injunction. Rather, the appellant argued before both the trial judge and the summary conviction appeal court judge, as she does on this appeal, that, by virtue of its delay and other conduct in the civil proceeding, the Crown’s prosecution of her is an abuse of process. In addition, the appellant argued, and argues, that s. 127 of the Criminal Code is unconstitutional. In comprehensive reasons, both the trial judge and the summary conviction appeal court judge rejected these submissions.
[4] For the reasons that follow, leave to appeal is granted but the appeal is dismissed and the appellant’s application to introduce fresh evidence on appeal is denied.
(1) Abuse of Process
[5] In our view, the summary conviction appeal court judge was correct to dismiss the appellant’s abuse of process argument.
[6] The trial judge’s findings concerning this issue included the following:
she was unable to conclude that the Crown was intentionally delaying the injunction proceeding, because it appeared that “all parties, at least as was known to the Crown at the time, have been content with the pace of litigation”;
she was unable to conclude that the Crown was prosecuting the appellant knowing that the delay on the part of the Crown Law Office – Civil was malicious, as “[f]rom the evidence presented at the hearing, the delay seem[ed] to be by agreement of all parties”;
she was not satisfied that the delay in the injunction proceeding standing alone would be a basis for setting aside the interlocutory injunction; and
based on the confusion concerning whether the appellant’s counsel in the injunction proceeding continued to represent her, the trial judge was not satisfied that the Crown was negligent in failing to involve her in that proceeding.
[7] The test for granting a stay based on abuse of process on the residual ground on which the appellant relies creates a high threshold: an abuse of process occurs where “a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73; see also R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 49-50.
[8] In the face of the trial judge’s findings, as set out above, there was no basis for a finding that the prosecution of the appellant for breach of the interlocutory injunction constituted an abuse of process. The fact of the delay and the trial judge’s additional statements that she was “troubled” by the delay and “somewhat troubled” by the Crown’s “laissez fair[e] attitude” do not change that.
[9] In any event, we also agree with the summary appeal court judge and the trial judge that the abuse of process argument is an impermissible collateral attack on the underlying order for an interlocutory injunction for the reasons they explained. The appellant’s proposed fresh evidence, which indicates that the Crown has not moved the civil proceeding forward following her conviction, does not alter this conclusion. We decline to admit the fresh evidence.
(2) Constitutionality of s. 127
[10] There are two aspects of the appellant’s constitutional argument. First, the appellant raises a division of powers argument. On this issue, we agree with the reasons of the summary conviction appeal court judge and the trial judge.
[11] In this court, the appellant focused on an argument that s. 127 is ultra vires Parliament because the section impermissibly delegates part of the federal criminal law power to provincial legislatures through the exception contained in s. 127. The appellant also argued that s. 127 lacks a valid criminal law purpose.
[12] We reject the appellant’s division of powers argument. The Supreme Court of Canada has made it clear that Parliament may “delegate legislative authority to bodies other than provincial legislatures, it may incorporate provincial legislation by reference and it may limit the reach of its legislation by a condition, namely the existence of provincial legislation”: R. v. Furtney, 1991 CanLII 30 (SCC), [1991] 3 S.C.R. 89, at pp. 104-105. In our view, s. 127 is an example of the latter. See also R. v. Hydro-Quebec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213, at para. 153, where the court observed, with respect to federal legislation, that “Parliament has made it clear that the provisions of this Part are not to apply where a matter is otherwise regulated under other equivalent federal or provincial legislation.”
[13] Further, as the summary conviction appeal judge pointed out at para. 21 of his reasons, McLachlin J. addressed this issue in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 938. She said:
The distinction between creating the criminal law and engaging it is illustrated by consideration of s. 127 of the [Criminal] Code, which makes 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”. “Act” is defined (in s. 2 of the Code) to include “an Act of the legislature of a province”. This means it is always a criminal offence to breach an order of a provincial tribunal, even if that tribunal is not authorized by provincial law to file the order as an order of the court. It is clear that the province is not enacting criminal law every time it empowers a tribunal to make orders which may not be filed with the court, even though it is a criminal offence to breach such an order; rather, the province has enacted non-criminal law, which is within its sphere of competence, and Parliament, acting within its sphere, has decided to make it a criminal offence to breach this provincial law. Similarly, the province is not enacting a new criminal law each time it provides that orders of a particular tribunal are to be enforced as a court order. Such a provision is non-criminal law; it is the common law which provides that breach of such an order may, in certain circumstances, be a criminal offence. [Emphasis in original.]
[14] Although the constitutionality of s. 127 was not at issue in United Nurses, it is clear that this analysis would only apply to a constitutionally valid exercise of the federal power over criminal law.
[15] We also reject the appellant’s submission that s. 127 is unconstitutional because it does not reflect a valid criminal law purpose, for the reasons given by the trial judge and the summary conviction appeal judge.
[16] Based on the foregoing reasons, we would not give effect to the appellant’s division of powers argument.
[17] The second aspect of the appellant’s constitutional argument is that s. 127 contravenes s. 7 of the Canadian Charter of Rights and Freedoms because it is arbitrary, overbroad and grossly disproportionate. We see no merit in these arguments. We agree with the Crown that, because the purpose of s. 127 is directed at maintaining public order and preserving respect for the administration of justice – and because the section is a specific-intent offence that provides for a defence of lawful excuse, is hybrid in nature and has internal limitations – the effect of s. 127 cannot be arbitrary, overbroad or grossly disproportionate and does not breach s. 7 of the Charter. We decline to give effect to this ground of appeal.
(3) Disposition
[18] Leave to appeal is granted, but the appeal and the application to introduce fresh evidence on appeal are dismissed.
“K. Feldman J.A.”
“Janet Simmons J.A.”
“S.E. Pepall J.A.”
[^1]: The full text of s. 127(1) of the Criminal Code, R.S.C. 1985, c. C-46, is as follows:
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.