COURT FILE NO.: 79/11
DATE: 20130315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LINDA GIBBONS
Appellant
David E. Mitchell, for the Crown
Daniel C. Santoro and Nicolas M. Rouleau, for the Appellant
HEARD: November 30, 2012
TROTTER J.
I. INTRODUCTION
[1] This appeal raises questions about the enforceability of a court order that was made many years ago. The order in issue, an interlocutory injunction concerning activities around Toronto abortion clinics, was made in 1994. Ms. Gibbons was charged with disobeying the order in 2009, contrary to s. 127 of the Criminal Code. She claims that the injunction is unenforceable against her.
[2] After a trial presided over by the Honourable Madam Justice Mara Greene of the Ontario Court of Justice, Ms. Gibbons was found guilty of disobeying the order. In the course of the proceedings, Ms. Gibbons unsuccessfully challenged the constitutionality of s. 127, arguing that the provision was ultra vires the Parliament of Canada and that it infringes s. 7 of the Charter for being overbroad. In very thorough reasons reported at (2010), 2010 ONCJ 470, 261 C.C.C. (3d) 565, Greene J. dismissed this application. In equally thorough reasons, the learned trial judge dismissed Ms. Gibbons’ application to have the proceedings against her stayed as an abuse of process: 2010 ONSC 2393, [2010] O.J. No. 1889. She was subsequently found guilty, based on an Agreed Statement of Facts.
[3] Ms. Gibbons appeals her conviction, arguing that the learned trial judge erred in dismissing both of her applications. For the following reasons, I would dismiss the appeal.
II. FACTUAL BACKGROUND
[4] In the early 1990s in Toronto, protests outside of abortion clinics were commonplace. They were sometimes volatile affairs. In 1994, the Attorney General for Ontario applied to a judge of this Court (then the “Ontario Court (General Division)”) for an interim injunction in respect of anti-abortion activities at specific clinics, including the Scott Clinic in Toronto. Ms. Gibbons was a named respondent. The application was successful and an order was made by Adams J.: see Ontario (Attorney General) v. Dieleman et al (1994), 1994 7509 (ON SC), 117 D.L.R. (4th) 449 (Ont. Gen. Div.). The order prohibits Ms. Gibbons and others from being within 60 feet of the clinics while they are open. They are also prohibited from carrying signs, intimidating persons working at the clinics and protesting within 60 feet. The named respondents are also prohibited from “approaching a second person closer than 10 feet where the second person has made it clear that he or she does not wish to receive any communication from the first person.”
[5] After all of these years, the order of Adams J. is still in force. There was no appeal. It has never been set aside. No one has ever tried. Equally, none of the parties to that proceeding have taken steps to bring the matter to trial or final settlement.
[6] One of Ms. Gibbons’ principal arguments is that, after Adams J. made his order, certain proceedings in the case occurred without her participation. Ms. Gibbons submits that proceedings should be stayed against her because the Attorney General intentionally or negligently excluded her from these proceedings. This requires some elaboration.
[7] When the injunction was obtained, Ms. Gibbons was represented by counsel, Mr. Peter Jervis. He testified before Greene J. on the abuse of process motion. In his evidence, Mr. Jervis said that he advised Ms. Gibbons (and the other clients that he acted for in the same proceeding) that he would not be able to represent anyone who breached the order of Adams J. Having heard that Ms. Gibbons breached the order almost immediately after it was made, he advised her he would no longer represent her. Before Greene J., Mr. Jervis testified that he called Ms. Elizabeth Goldberg (one of the counsel for the Attorney General on the injunction proceedings) to advise that he no longer represented Ms. Gibbons. He followed up with a letter to a different counsel (Ms. Leah Price), referencing his conversation with Ms. Goldberg, and saying he would take steps to immediately remove himself from the record. Mr. Jervis did not remove himself from the record because, it was his view that, everyone knew that he no longer represented Ms. Gibbons, and no substantive steps were taken in the proceedings. He is still on the record.
[8] The learned trial judge found that Mr. Jervis’s letter was sent and received. Lawyers for the Attorney General assigned to the case could not recall having received Mr. Jervis’s letter and assumed that he continued to act for Ms. Gibbons, especially since he made a few appearances on behalf of other parties after Adams J. made his order. Ms. Gibbons never appeared on her own behalf, nor did she engage new counsel.
[9] In her Reasons for Judgment on the abuse of process motion (2010 ONSC 2393, [2010] O.J. No. 1889), Greene J. concluded that, despite the misunderstanding over the nature of Mr. Jervis’s retainer, the Crown did not negligently nor intentionally exclude Ms. Gibbons from mediation and settlement discussions. She further found that the Crown was not negligent in failing to move the case to trial, noting that all parties seemed content with the pace of the litigation.
[10] Years after all of this, on January 20, 2009, Ms. Gibbons was armed with leaflets and carrying a 2-foot by 3-foot sign that said: “Why mom? When I have so much love to give.” She stood on the sidewalk in front of the Scott Clinic. The Sherriff was called and Ms. Gibbons was warned to move outside of the 60-foot buffer zone created by the injunction. Despite multiple warnings, she refused. The police were called and they asked Ms. Gibbons to do the same thing. She refused. She was then arrested and charged under s. 127 of the Criminal Code.
III. ANALYSIS
(a) Introduction
[11] At the heart of this appeal is s. 127 of the Criminal Code, which provides:
s. 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
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) on an offence punishable by summary conviction. [emphasis added]
The provision is broad in its scope, applying to orders made under provincial and federal legislation, by both courts and tribunals. The availability of the inherent power to punish for contempt is not a “punishment or other mode of proceedings expressly provided by law”: see R. v. Clement (1981), 61 C.C.C. (3d) 449 (S.C.C.). Accordingly, the ability to supervise a court order through the contempt power is not a bar to a charge being laid under s. 127. This was recently confirmed by the Supreme Court in R. v. Gibbons (2012), 2012 SCC 28, 283 C.C.C. (3d) 295 (S.C.C.), a case relating to the identical charge laid against Ms. Gibbons within days of the charge in this case.
[12] The rationale behind this built-in limitation to s. 127 is important to Ms. Gibbons’ arguments, discussed below. As Deschamps J. said for the majority in R. v. Gibbons, supra, at p. 300:
Rather, the determination must be based on the conclusion that Parliament or the legislature intended to limit the application of s. 127 by creating an express alternative statutory response to acts amounting to contempt of court.
The majority concluded that, while the Ontario Rules of Civil Procedure (R.R.O 1990, Reg. 194) provide a much more comprehensive and detailed procedural framework than the Rules considered in R. v. Clement, supra, the former are as dependent on the common law for their foundation as the latter (p. 301). Consequently, the availability of the contempt power to enforce orders (such as the one made by Adams J.) does not oust the operation of s. 127.
[13] The section leaves it up to Parliament and the legislatures to decide whether breaches of certain orders will be addressed through an alternative mode of proceeding. When this occurs, s. 127 is taken out of play in the circumstances. As an example, the majority of the Supreme Court in R. v. Gibbons, supra, pointed to s. 545 of the Criminal Code, which provides judges with certain powers when a witness refuses to testify. This issue was also discussed in the Court of Appeal decision that was appealed from (R. v. Gibbons (2010), 2010 ONCA 77, 251 C.C.C. (3d) 460 (Ont. C.A.)). As Watt J. held at pp. 470-471 of that decision:
Various 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, 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. ss. 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: see e.g. s. 605(2) (disobeying 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.
[14] As the appellant argues, this arrangement between the two levels of government allows the provinces and territories to decide what becomes criminalized under s. 127 of the Code. By repealing specific legislated punishments for breaching orders made under provincial or territorial authority, the provinces and territories essentially decide when s. 127 may be used. But this really only tells half the story because Parliament may similarly arrange its affairs.
(b) Division of Powers
[15] Ms. Gibbons argues that s. 127 of the Criminal Code is ultra vires the Parliament of Canada. In rejecting this argument, the learned trial judge, in accordance with Re Dairy Industry Act (Margarine Reference), 1948 2 (SCC), [1949] S.C.R. 1, inquired into whether or not the law purported to be criminal in nature and whether it was really enacted for a criminal purpose. After reviewing a number of the governing authorities (i.e., Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), [1998] 1 S.C.R. 626 and Canada (Human Rights Commission) v. Taylor, [1993] 3 S.C.R. 892), Greene J. concluded at p. 571:
In my view, s. 127 of the Criminal Code seeks to address the potential harm to the public order and to the confidence in the administration of justice. If people are free to ignore court orders without consequence, it only follows that some people will ignore court orders. This would interfere with public order as well as with public confidence in the administration of justice. In my view, both goals fail squarely within the jurisdiction of the Parliament of Canada. Public order has long been recognized as a properly criminal law purpose. With respect to maintaining confidence in the administration of justice, it is hard to imagine how public confidence in the administration of justice would not fall within the criminal law power. Our legal system would have no force if the public lost confidence in it.
[16] I agree.
[17] I also agree with the trial judge’s analysis of the interaction of s. 127 and provincial constitutional jurisdiction. It is well accepted that overlap of federal legislation with provincial powers is not enough to make the former ultra vires: see R. v. Clement, supra and Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783. As Greene J. concluded at p. 573:
There is no basis to conclude that section 127 in purpose or effect interferes with provincial regulation or that it is “piggy backing.” Section 127 only serves to criminalize breaches of court orders. It does not serve to enforce a provincial regulation nor does it act to penalize individuals for violation a provincial regulation. Its purpose and effect lies squarely within the jurisdiction of the Parliament of Canada.
[18] As the learned trial judge explained (at p. 574), s. 127 does not simply sanction a violation of a provincial statute. By the time it comes to engage s. 127, the sanction (i.e., the order) is already in place. Section 127 is not concerned with the purpose or policy of the underlying statutory authority (whether federal or provincial). Instead, s. 127 ensures public order and confidence in the administration of justice by sanctioning non-compliance with orders. As Greene J. held, this sufficiently distinguishes this case from R. v. Boggs, 1981 39 (SCC), [1981], 1 S.C.R. 49.
[19] This point is illustrated (albeit from a somewhat different perspective) by reference to the decision of United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901. In this case, the United Nurses of Alberta (“the union”) went on strike, contrary to directives forbidding the strike, made by the Alberta Labour Relations Board (“the Board”) under the Alberta Labour Relations Act (as amended S.A. 1983, c. 34)(“the Act”), and then filed with the Court of Queen’s Bench, pursuant to s. 142(7) of that legislation. The union was found guilty of two counts of criminal contempt and fined $250,000 and $150,000 respectively. The Alberta Court of Appeal ((1990), 1990 ABCA 64, 73 Alta. L.R. (2d) 152) dismissed the union’s appeal.
[20] In its decision, the Supreme Court dealt with a number of issues related to the common law offence of criminal contempt. The one that has some bearing on Ms. Gibbons’ situation concerns whether a directive made by the Board, and filed with the Alberta Court of Queen’s Bench, can found a citation for criminal contempt. The union argued that s. 142(7) of the Act violated s. 96 of the Constitution Act, 1867 which establishes courts under federal jurisdictions. The union argued that the Act permits a provincial board to exercise powers that may only be exercised by a s. 96 judge and that, conversely, the s. 96 court enforcing the directives of the Board is trespassing on the field of the provincial legislature. It is the latter aspect of this argument that is germane to this appeal.
[21] Writing for the majority, McLachlin J. (as she then was) rejected these arguments. As she observed (at p. 934), this type of sharing arrangement between the two levels of government is quite common. Moreover, she made the critical distinction between a province engaging criminal law in contradistinction to creating or enacting criminal law. Justice McLachlin referred to s. 127 of the Criminal Code to illustrate her point at p. 938:
The distinction between creating the criminal law and engaging it is illustrated by consideration of s. 127 of the Code, R.S.C., 1985, c. C-46, 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.
[22] I acknowledge that the Court did not resolve the issue in question under the traditional division of powers paradigm that is operative in this case; and I recognize the differences between the common law power of criminal contempt and s. 127 of the Criminal Code. Nevertheless, the case lends at least tacit support for the proposition that s. 127 does not improperly tread upon provincial jurisdiction.
[23] By triggering s. 127 of the Criminal Code, the criminal law is engaged for the purposes discussed above. By being engaged in this manner by a province, s. 127 does not improperly impinge on the legislative sphere of the province and thereby step outside its proper ambit under s. 91(27) of the Constitution Act, 1867. Short of want of jurisdiction to make the order in the first place, a judge deciding a case under s. 127 does not become concerned with the soundness of the underlying order, nor the regulatory or policy objectives involved in obtaining the order. The sole focus is on preserving public order and maintaining the integrity of the administration of justice by the enforcement of orders.
[24] For these reasons, I agree with Greene J. that s. 127 of the Criminal Code is not ultra vires the Parliament of Canada.
(c) Overbreadth
[25] Ms. Gibbons also argued that s. 127 is unconstitutional because it is overbroad within the meaning of s. 7 of the Charter: see R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761 and R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735. The basic argument is that s. 127 is overbroad because it criminalizes minor breaches of court orders, including orders made by administrative tribunals.
[26] This argument was rejected by Greene J. and I respectfully adopt the manner in which she disposed of it in the following passage of her Reasons (p. 56):
In my view, s. 127 is directly linked to its purpose in that it only sanctions the intentional disobedience of Court Orders. While breaching Court Orders may have varied impact on public safety, all breaches of Court Orders have an effect on public order, the administration of justice, and the integrity of the criminal justice system. To start creating a hierarchy of Court Orders suggests to the public that some Court Orders need not be followed and this is just not the case.
In my view, the section is also appropriately tailored. I note that s. 127 is a specific intent offence. Anyone, to be convicted under s. 127, must have the specific intention to disobey a Court Order. Moreover, s. 127 is a hybrid offence, providing for a wide variety of sentences, in order to take into account the different types of violations that may fall under this section. Furthermore, not all violations of Court Orders are captured under s. 127. Section 127 does not apply to any breach of a Court Order where the breach relates to an order for the payment of money or where a "punishment or other mode of proceeding is expressly provided by law". In light of these factors, in my view s. 127 is not over broad and is constitutional.
[27] Some further, indirect support for this conclusion is found in the Supreme Court’s decision in R. v. Gibbons, supra. The Court addressed the argument that s. 127 permits the provinces to expand the ambit of criminal liability by relinquishing responsibility to administer provincial legislative or administrative schemes. Deschamps J. disagreed with this argument and said (at p. 302): “In response to this argument, I note that no evidence was adduced to demonstrate an overuse of s. 127 to sanction contempt of court.” And there was certainly no evidence adduced in this case to demonstrate how frequently the section is used or that it is being used in questionable circumstances.
[28] In short, there are a number of self-limiting safeguards built into s. 127 of the Criminal Code and its application that prevent a finding of gross disproportionality. For these reasons, this ground of appeal is dismissed.
(d) Abuse of Process
[29] On this ground of appeal, I can add little to the analysis of Greene J. on whether the state of affairs surrounding the prosecution amounts to an abuse of process: 2010 ONSC 2393, [2010] O.J. No. 1889. I defer to Greene J.’s findings that, while she found it “troubling” that the Attorney General has not moved the case forward, this in itself, does not amount to an abuse of process. As she pointed out, all parties appear to have been content with the pace of the litigation.
[30] I also accept her conclusion that the Attorney General did not negligently or intentionally continue settlement or mediation discussions without Ms. Gibbons being present or represented by counsel. There is clearly no basis whatsoever to conclude that the eminent and honourable counsel who represented the Attorney General on the injunction proceedings intentionally excluded Ms. Gibbons from the proceedings. And while it is not necessary to the ultimate conclusion I have reached on this ground of appeal, I am not convinced that, had there been negligence or an avoidable mistake made by the Attorney General in terms of Ms. Gibbons’ representation, it would have amounted to an abuse of process.
[31] After all, Greene J. found that the Jervis letter was sent and received. I note that it was copied to other counsel, all very senior and experienced, appearing on the case. More profoundly, nothing happened in the few meetings or steps that were taken after Mr. Jervis stopped representing Ms. Gibbons. Ms. Gibbons was certainly aware that Mr. Jervis was no longer representing her. And there was no evidence before Greene J. as to whether Ms. Gibbons wished to be present as these further steps were taken and what, if anything, she had hoped to achieve if she had been present. These factors, combined with the passage of time between these events and the time when Ms. Gibbons was charged, sever any connection between those distant events and the propriety of the subsequent enforcement of the order against Ms. Gibbons. Moreover, it is important to note that there is no suggestion that prosecuting counsel engaged in misconduct in any way. The allegations all relate back to a minor misstep (if it can even be called that) many years ago by civil counsel. For some, that state of affairs might be troubling. But it is far from amounting to the clearest of cases to warrant this type of remedy: see R. v. Nixon (2011), 2011 SCC 34, 271 C.C.C. (3d) 36 (S.C.C.) and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.
[32] Before concluding this part of my reasons, I wish to make a comment about one aspect of Greene J.’s analysis of this issue. As I have noted above, Mr. Jervis testified that he told Ms. Goldberg that he would no longer continue to act for Ms. Gibbons. Ms. Price could not speak to that issue. She said she could not recall receiving Mr. Jervis’s letter. During oral argument, Greene J. observed that Ms. Goldberg had not been called to testify and that perhaps she should have been. In my view, this was important. It meant that Mr. Jervis’s evidence on this point stood uncontradicted. The record amply demonstrated that Mr. Jervis advised everyone involved in this case that he would no longer act for Ms. Gibbons. The fact that wires got crossed in the offices of the Attorney General should not somehow impact adversely on Mr. Jervis because he failed to follow through by getting off the record. While he technically remains on the record, so do a number of other persons, some of whom now occupy judicial positions. Mr. Jervis rightly considered his client’s defiance of the order to be an obviously inappropriate response to an unwanted result. In my view, Mr. Jervis acted decisively and honourably in apprising all concerned that he would distance himself from any breach of Adams J.’s order.
[33] This leads to the more fundamental finding of the learned trial judge that the assertion of an abuse of process in this case amounted to an impermissible collateral attack on the underlying order. As Doherty J.A. explained in R. v. Oliveira (2009), 2009 ONCA 219, 243 C.C.C. (3d) 217 (Ont. C.A.), at p. 224:
Generally speaking, the validity of a court order can only be challenged in the proceeding in which it is made or on an appeal or judicial review from that proceeding: R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594, at p. 599; R. v. Domm (1996), 1996 1331 (ON CA), 31 O.R. (3d) 540 (C.A.), at p. 545, leave to appeal to SCC refused (1997), 43 C.R.R. (2d) 188.
[34] In R. v. Domm, supra, the accused, like Ms. Gibbons, was charged with disobeying a court order contrary to s. 127 of the Criminal Code. The charge arose from a publication ban ordered at a notorious criminal trial in Ontario. Mr. Domm disagreed with the order because he believed that it infringed his rights under s. 2(b) of the Charter. He decided to breach it. After being charged under s. 127, he tried to attack the validity of the underlying order. This brought him face-to-face with the rule against collateral attack.
[35] Writing for the Court, Doherty J.A. elaborated on the nature and scope of the rule against collateral attack of court orders (at p. 456):
The rule against collateral attack on court orders has been consistently applied in criminal proceedings where the charge involves an alleged breach of a court order. For example, in R. v. Reed (1994), 1994 1634 (BC CA), 91 C.C.C. (3d) 481 at p. 499, 24 C.R.R. (2d) 163 (B.C.C.A.), the court held that the accused could not defend against a charge of breaching a term of his probation by arguing that the term was invalid. Similarly, in R. v. Rent, 1989 9593 (NS CA), [1989] N.S.J. No. 177 (C.A.), the court invoked the rule against collateral attack in holding that an accused charged under the predecessor section to s. 127 of the Criminal Code could not attack the validity of the restraining order which he was alleged to have disobeyed: see also R. v. Dawson (1995), 1995 NSCA 151, 100 C.C.C. (3d) 123 at pp. 130-31, 143 N.S.R. (2d) 1 (C.A.), per Jones J.A. (for the majority on this point); further appeal to Supreme Court of Canada dismissed November 21, 1996 without reference to this issue: 1996 150 (SCC), 111 C.C.C. (3d) 1, [1996] S.C.J. No. 113.
The rule against collateral attack comes to the forefront in criminal contempt cases where the contempt alleged involves a breach of a pre-existing court order. Courts have consistently refused to permit an accused to challenge the validity of the order underlying the contempt charge except on jurisdictional grounds: Canadian Transport (U.K.) Ltd. v. Alsbury (1952), 1952 218 (BC CA), 105 C.C.C. 20 at pp. 44-45, 57-58, [1953] 1 D.L.R. 385 (B.C.C.A.), affirmed, without reference to this point, sub nom. Poje v. British Columbia (Attorney General), 1953 34 (SCC), [1953] 1 S.C.R. 516, 105 C.C.C. 311; R. v. Bridges (1990), 1990 5419 (BC CA), 62 C.C.C. (3d) 455 at pp. 468-70, 78 D.L.R. (4th) 529 (B.C.C.A.): MacMillan Bloedel Ltd. v. Simpson (1994), 1994 1731 (BC CA), 89 C.C.C. (3d) 217 at p. 234, 90 B.C.L.R. (2d) 24 (C.A.); R. v. Hunchuk (1956), 1956 590 (BC CA), 25 C.R. 142 at pp. 143-44, 20 W.W.R. 446 (B.C.C.A.).
The effect of these and similar cases is summed up by McLachlin J., speaking for the majority in United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901 at p. 935, 71 C.C.C. (3d) 225 at p. 255:
The validity of the order is not an issue on the contempt hearing. Unless the order has been set aside for want of jurisdiction, the judge hearing the motion on criminal contempt must accept it as valid.
[36] As Doherty J.A. further explained (at pp. 458 to 460), the rule against collateral attack also applies to alleged Charter violations. This is based on the broader premise that Charter violations are not equated with jurisdictional error: R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.) and R. v. Sarson (1996), 1996 200 (SCC), 107 C.C.C. (3d) 21 (S.C.C.).
[37] Very capable counsel for Ms. Gibbons understand the strictures of this rule. They accept that this is not the proceeding in which to attack to the validity of the order of Adams J. Instead, they forcefully argue that the challenge is not to the validity of the order itself, but only to the enforcement of the order. However, that this is a distinction without a difference is illustrated by a simple example. Suppose that the order of Adams J. only applied to Ms. Gibbons. If the validity versus enforcement argument relied upon by the counsel for the appellant were sound, the argument concerning enforcement would equate with an attack on the validity of the order in these circumstances. Without the ability to enforce compliance, there is no point in having the order in the first place. Whether one attacks the validity of the order, or its enforcement, as a defence to a prosecution under s. 127 of the Criminal Code, it still amounts to the same thing – an impermissible collateral attack.
[38] Ms. Gibbons was a named party in the proceedings before Adams J. She lost. It was open to her to seek to set aside that order. It still is. Instead, Ms. Gibbons prefers a strategy of “breach first, ask questions later.” This provides a perfect example of why the rule against collateral attack developed in the first place.
IV. CONCLUSION
[39] For these reasons, and despite the able submissions of Mr. Santoro and Mr. Rouleau, the appeal is dismissed.
TROTTER J.
Released: March 15, 2013
COURT FILE NO.: 79/11
DATE: 20130315
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LINDA GIBBONS
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: March 15, 2013