SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 47/13

DATE: 20140415

RE: HER MAJESTY THE QUEEN, Respondent

AND:

LINDA GIBBONS, Appellant

AND:

LEXOGEST INC. CARRYING ON BUSINESS AS

THE MORGENTALER CLINIC, Moving Party

BEFORE: MacDonnell, J.

COUNSEL: Counsel for the Appellant, Daniel C. Santoro and Nicolas M. Rouleau

Counsel, for the Respondent, Stefania Fericean

Counsel for the Moving Party, Gerald Chan

HEARD: April 14, 2014

ENDORSEMENT

[1] This is a ruling on a motion by the Morgentaler Clinic (the “Clinic”) for leave to intervene in the summary conviction appeal brought by Linda Gibbons against her conviction for wilfully disobeying a court order, contrary s. 127 of the Criminal Code.

I. The Background

[2] The order in question is an injunction that was granted on April 7, 1999 by Justice Lang in an action brought by Henry Morgentaler and the Clinic against five named individuals and against “John Doe, Jane Doe and Other Persons Unknown”. In the action, the plaintiffs sought an order permanently enjoining the defendants from engaging in certain activities at the Clinic’s place of business, including intimidating or attempting to intimidate the Clinic’s patients. The appellant was not one of the five named defendants.

[3] On May 5 1989, shortly after the action was commenced, Justice Craig issued an interlocutory injunction restraining the defendants until the trial of the action from engaging in the activities complained of by the plaintiffs.[^1] The action never proceeded to trial. A decade after it was launched, four of the five named defendants consented to a judgment ordering “that the action for a permanent injunction be granted as against the defendants other than Wiche…” Justice Lang signed that judgment on April 7, 1999. Several weeks later, the remaining named defendant, Wiche, consented to a judgment granting an injunction as against her in terms identical to those of the April 7 injunction.

[4] On October 30, 2012, the appellant was observed by Sheriff’s officers walking back and forth on the sidewalk in front of the Clinic’s place of business. The position of the officers was that the April 7, 1999 injunction was binding on the public at large and that the appellant was engaging in activity prohibited by the injunction. As a result, the appellant was charged under s. 127 of the Criminal Code with disobeying a court order. On March 12, 2013 she was convicted of that offence.

[5] On her appeal from conviction, the appellant raises two grounds. First, she argues that the April 7, 1999 injunction only enjoins the defendants who consented to it. Second, she argues that the trial judge erred in finding that her conduct on October 30, 2012 was prohibited by the injunction.

[6] The moving party seeks leave to intervene in the appeal only in relation to the first of those grounds. The respondent Crown does not oppose the motion. Ms. Gibbons submits that leave to intervene should be refused.

II. Discussion

[7] It is well established that “the right to intervene in criminal proceedings where the liberty of the subject is involved is one which should be granted sparingly”: R. v. Seaboyer, 1986 7320 (ON CA), [1986] O.J. No. 128, per Howland C.J.O. Generally speaking, the moving party must establish (i) that it has a real, identifiable and significant interest in the outcome of the proceeding; (ii) that it can bring to the resolution of the issues submissions that will be useful and different from those of the other parties; and (iii) that the intervention will not result in undue prejudice to the accused: Reference re Workers’ Compensation Act 1983, 1989 23 (SCC), [1989] 2 S.C.R. 335, at paragraph 8l; R. v. Finta, 1993 132 (SCC), [1993] 1 S.C.R. 1138, at paragraph 5; Bedford v. Canada (Attorney General), 2009 ONCA 669, at paragraph 2; R. v. Thurlow, [1994] O.J. No. 68 (Gen. Div.), at paragraph 4.

(i) Does the moving party have a sufficient interest in the outcome of the appeal?

[8] It is not disputed that the Clinic has a real and significant interest in the manner in which the first ground of appeal is resolved. In his reasons for granting the interlocutory injunction in 1989, Justice Craig referred to evidence that “the clinic [had been] besieged on a daily basis by protestors and demonstrators, such as the defendants, who [had] as their goal the disruption of the business of the clinic”.^2 Both the interlocutory injunction and the permanent injunction were aimed at providing the Clinic with relief from that behaviour. The appellant’s first ground of appeal places the scope of the relief in issue.

(ii) Does the moving party have submissions different from those of the other parties?

[9] The argument of the appellant in relation to the first ground of appeal, as set forth in her factum and as confirmed in the course of oral argument on this motion, does not challenge the validity of the April 7, 1999 injunction. Counsel for the appellant has made it clear that if the injunction is interpreted as binding the public at large, no argument will be advanced that the appellant was not bound by it. The appellant’s argument, rather, is that it should not be interpreted as binding the public at large.

[10] The fundamental premise of the prosecution in this case, and the proposition that the moving party seeks leave to support, is that the April 7, 1999 injunction binds everyone, not just the individuals who consented to it. The trial judge accepted that premise, and in order to uphold the conviction the Crown will have to defend it. In my opinion, the submissions that the moving party proposes to make in that regard are in substance indistinguishable from those that the Crown has made in the past in other proceedings involving the same appellant and the same injunction and that the Crown will be bound to make on this appeal.

[11] In his thorough canvass of the law, counsel for the moving party has referred to a number of cases in which leave to intervene has been granted. Most of those cases raised issues involving the Canadian Charter of Rights and Freedoms. The resolution of issues of that kind will often require courts to take into account interests beyond those of the parties to the litigation and in such cases leave to intervene is more easily obtained: see, e.g., R. v. Finta, 1990 6824 (ON CA), [1990] O.J. No. 2282 (C.A.), at paragraphs 8 and 9. Similarly, courts may be more inclined to permit intervention where the court is being asked to alter the state of the law. In the present case, there are no Charter issues in play, nor is the court being asked to consider altering the state of the law.

[12] While the Clinic clearly has an interest in the interpretation of the judgment signed by Justice Lang, its interest does not set its submissions apart from those of the Crown or add anything to them. In R. v. Zundel, [1986] O.J. No. 742, Chief Justice Howland refused to grant leave to intervene in an appeal, in part, because “the Crown will be responding to all of the issues which have been raised by the appellant”. He stated: “In my opinion, in all the circumstances, it does not require the assistance of the applicants to illuminate any particular aspect of the appeal.” I am of a similar opinion in the present case.

(iii) Will granting leave cause prejudice to the appellant?

[13] In the course of his reasons for refusing leave to intervene in an appeal to the Court of Appeal in R. v. Finta, supra, Morden J.A made the following observation, at paragraph 8:

…[Both] fairness and the appearance of fairness in the criminal law process are of paramount concern. Under s. 7(3.75) of the Criminal Code the prosecutor is the Attorney General of Canada or counsel acting on his behalf. A criminal proceeding in which the accused person is obliged to respond to submissions of more than one prosecutor lacks the appearance of fairness.

[14] The weight to be given to the concern identified by Justice Morden will vary from case to case. To the extent that my assessment is correct that the submissions that the moving party proposes to make are substantially the same as those to be advanced by the Crown, the concern may be attenuated. If, however, I were to have accepted the moving partys position that its submissions add something to the position of the Crown in support of the appellants conviction, the concern identified by Morden J.A. would have been engaged.

III. Disposition

[15] For the foregoing reasons, I am not persuaded that the moving party should be granted leave to intervene in this appeal. The motion is dismissed.

MacDonnell, J.

Released: April 15, 2014

[^1]: See Morgentaler v. Wiche, [1989] O.J. No. 2582 (Ont. H.C.J.)