Court File and Parties

Court File No.: Toronto Region - College Park

Date: 2016-01-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Linda Gibbons

Before: Justice M. Wong

Heard on: January 13, 2016

Reasons for Judgment released on: January 21, 2016

Counsel:

• D. Brandes, for the Crown
• D. Santoro, for the accused Linda Gibbons

Judgment

Wong, J.:

Introduction

[1] Counsel for Linda Gibbons entered a plea of not guilty on her behalf to a charge of disobey a court order pursuant to subsection 127(1) of the Criminal Code. The crown elected to proceed summarily and called two witnesses, as well counsel agreed on many helpful admissions.

[2] The main issue is whether or not Ms. Gibbons' conduct on September 2, 2015, amounted to a breach of a 1999 injunction which restrained Ms. Gibbons and like-minded others from, generally speaking, protesting in front of the Morgentaler Clinic (referred to hereafter as the Clinic). Ms. Gibbons is an anti-abortionist and she is opposed to legal abortions sanctioned by law, which are medically supervised in abortion clinics. The facts in the case before me are similar, but not identical, to the facts in a 2014 summary conviction appeal decision of Justice G. Trotter wherein he granted the appeal, set aside a conviction and entered an acquittal. I found Justice Trotter's decision a useful template in my analysis. (See R. v. Gibbons, 2014 ONSC 4269, [2014] O.J., No. 3508; 2014 ONSC 4269; 115 W.C.B.(2d) 36).

Background

[3] The following background is not disputed:

[4] On April 7, 1999, after years of litigation, Madam Justice Lang signed a consent order that settled an action making permanent an injunction against four of the five originally named defendants as well as against "John Doe, Jane Doe and Other Persons Unknown". Previous cases have held that Linda Gibbons, a dedicated protestor, is bound by the order.

[5] The Order reads as follows:

This court orders and adjudges that the action for a permanent injunction be granted as against the defendants… restraining them from:

(a) watching or besetting (including secondary picketing) or causing to watch or be set the premises of the Plaintiffs;

(b) impeding, interfering, blocking or obstructing ingress or egress to or from the premises of the Plaintiffs;

(c) disturbing, interrupting or attempting to interrupt or disturb the functioning of the Morgentaler clinic…;

(d) Unlawfully conspiring to injure the Plaintiff's in their business by supporting, encouraging, condoning or engaging in activity intended to have the effect of disturbing, interrupting, restricting or limiting the services of the Plaintiffs…;

(e) Wrongfully and without lawful authority, inducing, counseling or procuring a breach or breaches of contract or contracts and attempting to interfere with the performance of a contract or contracts between the Plaintiffs and other persons;

(f) trespassing at the premises of the Plaintiffs…;

(g) Intimidating or attempting to intimidate or unlawfully threatening to interfere with the freedom of the Plaintiffs, their employees, their patients, their servicemen and suppliers to carry on their business at the place of business or operations…;

(h) Causing a nuisance within 500 feet of the place or operations of the Plaintiffs…

Prior 2012 Case: Justice G. Trotter's Summary Conviction Appeal

The 2012 Incident

[6] On October 30, 2012, Linda Gibbons was outside of the Clinic located on Hillsdale Avenue in Toronto. She silently walked back and forth on the sidewalk directly in front of the Clinic. She was carrying a large sign depicting an image of an infant with the following caption: "Why Mom? When I have so much love to give." Ms. Gibbons carried anti-abortion pamphlets/leaflets. Although a witness saw Ms. Gibbons speaking to a couple across the street, no one heard what was said. Afterwards, the couple made a call on their cell phone, a car pulled up and they drove away. The trial judge considered this evidence as "neutral", which assisted neither the crown or the defence. Trotter, J., did not interfere with the finding.

Trotter's Analysis and Ruling

[7] In that case, the trial crown had argued that Ms. Gibbons' behaviour infringed three paragraphs of the Order: a) watching and besetting, d) unlawfully conspiring to injure the Plaintiffs in their business; and h) causing a nuisance within 500 feet of the clinic. The trial judge ruled that Ms. Gibbons' activity, which he found took place over a very short time span, did not violate any of the above named paragraphs. Instead, the trial judge convicted Ms. Gibbons on the basis that her behaviour infringed paragraph (g), namely, that the use of the poster and the emotional impact of the image on the poster were clearly intended by Ms. Gibbons "as a form of coercive behaviours to attempt to intimidate and to deter people from using the services of the clinic". (see Gibbons, supra at para. 16)

[8] In overturning the conviction, Justice Trotter found that based on the trial judge's findings of fact, Ms. Gibbons did nothing unlawful or intimidating by merely walking back and forth in front of the clinic. "Short of causing a nuisance, which the trial judge found that she did not, Ms. Gibbons was entitled to engage in this conduct so close to the Clinic". (see Gibbons, supra at para. 24)

[9] Further Justice Trotter at paragraph 26 wrote, "In short Ms. Gibbons' conduct was in the realm of peaceful leafleting, a constitutionally protected activity" and he referred to the decision of United Food and Commercial Workers, Local 1518 v. Kmart Canada Ltd., [1999] 2 S.C.R. 1083, whereby the Supreme Court of Canada distinguished legally protected consumer leafleting from potentially illegal picketing.

[10] In closing, Trotter, J. found that while Ms. Gibbons' act of silently walking outside of the clinic, carrying a placard and pamphlets (as well as a 3-inch plastic model of a human fetus) clearly breached the spirit of the injunction, the Court found Ms. Gibbons' conduct did not amount to an attempt to intimidate. Trotter, J. left open the possibility of a different conclusion "in circumstances where the protestor is more active, uses a different sign, uses the same sign in a different way or engages in concerted activity with others". As Justice Trotter concludes at paragraph 31, "But that is for another day".

[11] The question is whether the facts before this court relating to Ms. Gibbons' conduct on September 2, 2015 is that proverbial other day.

Evidence Before This Court – September 2, 2015

Crown Evidence: The Incident

[12] On this day, Ms. Gibbons was walking on the same sidewalk in front of the same Clinic, carrying the same sign with the same drawing of the child with the same printed message as she did in 2012. However, in addition, the crown and defence agreed that on September 2, at 9:24 am, security guard Joe Colletti was dispatched to the Clinic and he stood outside to prevent Ms. Gibbons from interacting with patients. The lawyers agree that Mr. Colletti heard Ms. Gibbons telling patients entering the building: "We have a pregnancy centre you can go to instead. You don't have to do this. You don't need to be here. Your son or daughter needs you".

Testimony of Sarah Workman (Clinic Administration)

[13] The Crown also called two Clinic employees: Sarah Workman, who on September 2nd worked as part of the administration department. Ms. Workman's job included answering calls, booking appointments, greeting patients and preparing their paperwork. September 2nd was a busy morning with approximately 10 patients in the waiting room. Ms. Workman testified that when security alerted her that Ms. Gibbons was outside, office protocol dictated that she make a general announcement advising the patients that a protester was outside and, if they had any questions, she would try and answer them. According to Ms. Workman, four or five people had questions asking, "Why would [she] be here?", "what was her purpose?" and the patients commented that they wanted the person to leave. According to Ms. Workman, some of the patients seemed upset and felt incredulous that someone could do that. She said the patients' body language was consistent with some being "upset and disturbed". She could also sense some frustration because, as Ms. Workman described it, for many patients coming to the Clinic was already stressful.

[14] As part of the regular procedure, Ms. Workman then escorted patients into a smaller room in order to complete some paperwork. Ms. Workman said this took more time because she had to answer their questions. She also had to go back and forth to the waiting room to check on others.

[15] Ms. Workman said she also saw Ms. Gibbons speaking to two people as they approached the clinic. She could not hear what Ms. Gibbons was saying and the two people continued inside the building.

[16] At one point, Ms. Workman testified she went outside and a woman with a camera took her picture. Ms. Workman testified she assumed the woman was with Ms. Gibbons because she had seen them together previously. Ms. Workman later searched the internet entering "Linda Gibbons protesting", and she found a picture of herself taken that day. Ms. Workman said she felt her privacy had been invaded and she was very uncomfortable.

[17] Ms. Workman testified she has worked at the Clinic for the past four years and she has seen Ms. Gibbons, who she did not know by name, outside the clinic doing the same thing on four previous occasions. Ms. Workman agreed with defence counsel that when she took the job she was told that she might have to deal with protestors, but she did not know the exact terms of the injunction. Ms. Workman disagreed with defence counsel's description of Ms. Gibbon's activities as a "peaceful protest".

Testimony of Michelle Hohenberger (Clinic Accounting Supervisor)

[18] The crown also called Michelle Hohenberger, who had worked at the clinic since 2011 and on September 2, 2015, was the accounting supervisor. Ms. Hohenberger testified she has seen Ms. Gibbons at least five times on previous dates protesting outside. On September 2nd, when she heard Ms. Gibbons was back, she called security. Ms. Hohenberger went to the waiting room, where she heard her co-worker telling the patients that extra security as well as the sheriff's office had been called, urging everyone to stay calm and advising that a security escort would be available for them when they leave. After Ms. Hohenberger returned to her second-floor office, which overlooked where Ms. Gibbons was walking with her sign on the sidewalk. Ms. Hohenberger took photographs on her cell phone, which have been marked as exhibits at this trial. It is agreed that the photographs show members of the news media present as well.

[19] Ms. Hohenberger described one patient in particular, who came in looking "quite nervous" when she entered through the front door, where she would have had to have passed Ms. Gibbons. Ms. Hohenberger said the patient appeared "shaken" as she listened to the office announcement.

[20] Ms. Hohenberger testified she also went outside and recorded the license plate numbers of vehicles belonging to members of Ms. Gibbon's group, in order, to give the plate numbers to police. Ms. Hohenberger testified that on September 2, her office duties were completely interrupted between 9 AM until Ms. Gibbons arrest at approximately 11:03 AM. Ms. Hohenberger strongly disagreed with defence counsel's suggestion that managing this type of interruption was part of her "formal duties". Ms. Hohenberger did not know the exact terms of the injunction, but it was her understanding that there were legal restrictions on protesters being within a certain distance of the clinic.

Cross-Examination and Credibility Assessment

[21] Defence counsel cross examined both witnesses attempting to establish that their automatic reaction upon seeing Ms. Gibbons was to call security even though neither knew the specifics of the injunction. Mr. Santoro also suggested to the witnesses that having accepted their respective jobs at an abortion clinic, they were forewarned that dealing with abortion protestors would be part and parcel of some day's work. Further, it was suggested to Ms. Workman and Ms. Hohenberger that any interruption of their day's work was the result of their setting into motion the calls to security, the sheriff, and so forth as opposed to anything Ms. Gibbons, herself, had done.

[22] I found both Ms. Workman and Ms. Hohenberger to be honest, straightforward and credible witnesses. They answered Mr. Santoro's suggestions intelligently and reasonably. Both agreed with many of defence counsel's suggestions: for example, they agreed that Ms. Gibbons did not prevent anyone from entering the clinic, she spoke in a calm and civilized tone of voice, and she did not wave her arms or do anything with the placard except carry it. Counsel, however, did not successfully challenge Ms. Workman when she said she felt uncomfortable and her privacy invaded. To paraphrase her evidence, "This is my workplace. It is not something I should have to deal with when I am just going to work and doing my job". Interestingly, one of the cases provided by Ms. Gibbons' counsel was United Food and Commercial Workers v. Kmart Canada, supra., where at paragraph 25, Dickson, C.J. referring to another labour relations case: "A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being". I accept Ms. Workman's testimony that although she was told when she took the job that she might have to deal with protestors that the disruption, annoyance, and her sense of personal violation was a direct result of Ms. Gibbons' conduct; and was not simply part of the day's work. I am satisfied that a reasonable person standing in Ms. Workman's position would agree with those sentiments and, as such, I accept her evidence as being both subjectively and objectively reasonable.

[23] As for Ms. Hohenberger she, too, disagreed that dealing with protestors and the resulting disruption to her office duties is part of her "formal duties" at the Clinic. I have already reviewed Ms. Hohenberger's evidence how Ms. Gibbons' action caused considerable disturbance and interruption to her day.

[24] Overall, I found both Ms. Hohenberger and Ms. Workman to be honest, credible and reliable witnesses.

Analysis

The Legal Test

[25] Subsection 127(1) of the Code reads:

127(1) everyone 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.

Crown's Position

[26] The crown argues the court should be satisfied that Ms. Gibbons breached conditions (c) and (h) of the Order; namely, c) disturbing, interrupting or attempting to disturb or interrupt the functioning of the Clinic and/or h) causing a nuisance within 500 feet of the place or operations of the Plaintiffs. Mr. Brandes does not seek a conviction relating to condition (g) intimidation, upon which the 2012 prosecution failed. As well unlike the 2012 case, crown counsel has also called additional evidence.

Defence Position

[27] Defence counsel submits that based on Justice Trotter's decision, Ms. Gibbons should be similarly acquitted because she was conducting herself in the same manner for which she was acquitted. Mr. Santoro agrees I must consider the testimony of the Clinic staff, but even with the added testimony, he submits the Court should still find Ms. Gibbons not guilty because her conduct amounted to peaceful leafleting, which is sanctioned by law.

Distinguishing the Prior Case

[28] In my view, Justice Trotter's ruling was based on substantially different findings made by the trial judge than what has been presented in the case before me.

[29] Firstly, there is unchallenged evidence that Ms. Gibbons spoke directly to patients entering the clinic and what she said to them. She was clearly trying to persuade the women to change their mind about having an abortion: imploring them to consider their alternatives and to consider their unborn son or daughter, all the while carrying her sign. Secondly, there is clear and credible evidence that as a result of Ms. Gibbons' activities on September 2nd, the normal functioning of the Clinic was disturbed and interrupted. For the reasons already stated, I accept the evidence of Ms. Workman and Ms. Hohenberger regarding the negative impact Ms. Gibbons' appearance created that day to the Clinic's functioning as well to the emotional well-being of the patients and to themselves. As for Ms. Workman and Ms. Hohenberger's response to Ms. Gibbons' return, clearly they are responsible for the welfare and safety of the patients, other staff members and themselves. They have to call police even if the witnesses cannot rhyme off the terms and conditions of the Order. As noted in the decision of Morgentaler v. Wiche, [1989] O.J. No. 2582 (Ont. Sup.Ct.), anti-abortion protesters have a history of being openly hostile, aggressive and violent. Today, even though abortion is legal, it remains a divisive topic both here in Canada and in even more so in the United States. The Clinic staff would have been derelict in their duties if they did not respond immediately by calling security, who likely then called police to deal with Ms. Gibbons.

Ms. Gibbons' Knowledge and Intent

[30] Moreover, I find that it can be reasonably inferred that Ms. Gibbons, an experienced and dedicated anti-abortion activist, knows full well that her appearance outside the Morgentaler Clinic will trigger a response. Ms. Gibbons knows her attendance is the catalyst for what inevitably are the calls to security, the sheriff's office and police. Presumably that is why Ms. Gibbons returns to the same spot where she has been arrested and prosecuted before. If she were simply trying to convey a message and educate women on their reproductive alternatives to abortion then Ms. Gibbons could easily choose any other street corner in Toronto and hand out her leaflets, carry her placard and other props. However, Ms. Gibbons standing at the intersection of Yonge and Bloor clearly would not cause the same drama as her walking with her sign directly in front of the Morgentaler Clinic, and she knows that. Ms. Gibbons' target market are the women seeking abortions at the Clinic and her aim is to discourage, persuade, and stop these women. Ms. Gibbons knows full well that when she appears with her sign, police will be called; and that in turn, she knows with certainty that her actions will disrupt and interrupt the proper functioning of the clinic.

Peaceful Leafleting and Obiter Remarks

[31] As for Justice Trotter's comments comparing Ms. Gibbons conduct "in the realm of peaceful leafleting", firstly, I find Trotter, J.'s remarks were made within the context of the findings of fact and law upon which he was adjudicating the appeal. I find his comments therefore, obiter, and hence, not binding on my decision. The evidence and the legal issues before me are substantially different than what the crown called and argued before Justice Trotter on appeal. Trotter, J. clearly left the door open to, as he put it for "another day", when prophetically His Honour likely anticipated Ms. Gibbons again breaching the Order, and that another court would have to adjudicate the issues.

Distinguishing Kmart

[32] Lastly, I find that the decision of Kmart, supra, can be distinguished from the case at bar because here there is a legally binding order, which prohibits a wide range of activities from the more passive activities such as watching and besetting, to more active interference relating to the Clinic. In my view, the absence of any particulars in Justice Lang's order such as "shall not carry placards", does not make the Court's intention any less clear.

Breach of Specific Terms

[33] I agree with Justice Trotter that "individuals cannot be subject to criminal liability for breaching the spirit or intention of a court order (whether it is a probation order, bail order, prohibition order or a civil injunction); liability only lies where it has been proved that a specific term of an order has been infringed": see Gibbons, supra at para. 19 referring to R. v. Elton (2010), 2010 ONSC 4001, 258 C.C.C. (3d) 224 (Ont.S.C.J.). Based on all of the evidence at this trial, I am satisfied the crown has proven beyond a reasonable doubt that Ms. Gibbons without reasonable excuse breached paragraph (c) of the Order, by knowingly disturbing and interrupting the functioning of the Clinic.

Nuisance Analysis

[34] As well, I am satisfied the crown has also proven beyond a reasonable doubt that Ms. Gibbons also breached paragraph (h) of the Order by causing a nuisance within 500 feet of the Clinic. "Nuisance" is defined in the Morgentaler v. Wiche, supra at page 10 as the following:

The tort of nuisance is committed where the plaintiff is an occupier of land and nuisance interferes with his use and enjoyment of the land. The interference must be substantial and unreasonable. Physical damage to property is not required. Sensible personal discomfort, annoyance or inconvenience is sufficient. Pecuniary loss is not necessary. If the primary aim of the defendants is to injure the enterprise of the plaintiffs, that is highly relevant.

[35] The test is an objective one: "whether conduct is a nuisance or not is the effect of such conduct on the average reasonable one".

[36] Justice Trotter deferred to the trial judge's finding that Ms. Gibbons' behaviour did not constitute a nuisance. However, as noted earlier, Justice Trotter's decision left open the door for a different finding based on the evidence. In the case before me, I am satisfied that when objectively viewed, Ms. Gibbons activities constituted a nuisance by acts which she knew would, and did, substantially and unreasonably interfere with the Clinic's functioning.

Conclusion

[37] For all of these reasons, I am satisfied beyond a reasonable doubt that Ms. Gibbons wilfully, without lawful excuse, disobeyed specific conditions of a lawful order and she will be found guilty as charged.

Released: January 21, 2016

Justice M. Wong