ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 47/13
DATE: 20140723
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LINDA GIBBONS
Appellant
Stephania Fericean, for the Crown
Daniel Santoro and Nicolas Rouleau, for the Appellant, Ms. Gibbons
HEARD: April 24, 2014
TROTTER J.
Introduction
[1] Linda Gibbons was charged with disobeying a court order (Criminal Code, s. 127) that prohibited certain activities outside of the Morgentaler Clinic (“the Clinic”) in Toronto. After a trial before the Honourable Mr. Justice William Wolski of the Ontario Court of Justice, Ms. Gibbons was found guilty.
[2] Ms. Gibbons appeals her conviction. For the following reasons, the appeal is allowed, the conviction is set aside and an acquittal is entered.
The Facts
(a) The Underlying Order
[3] In 1989, the Morgentaler Clinic (“the Clinic”) launched an action against anti-abortion protestors, seeking $1,000,000 in damages, as well as an interlocutory and permanent injunction to enjoin the defendants from engaging in certain activities at or near the Clinic's place of business. The action was brought against five named defendants and against “John Doe, Jane Doe and Other Persons Unknown." Ms. Gibbons was not one of the named defendants.
[4] Later that year, Craig J. issued an interlocutory injunction, restraining the defendants from engaging in the conduct complained of by the plaintiff: Morgentaler v. Wiche, [1989] O.J. No. 2582 (Ont. H.C.J.). The case never went to trial.
[5] Approximately ten years later, on April 7, 1998, Lang J. (as she then was) signed a consent order that settled the action by making the injunction permanent against four of the five named defendants (excluding Wiche). Importantly, the formal Order was also made against “John Doe, Jane Doe and Other Persons Unknown.” A few weeks later, on April 28, 1999, Cameron J. signed an order in identical terms, to which Wiche consented.
[6] It is important to set out the precise terms of the injunction. The operative paragraph of the Order states:
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 be watched or beset 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 disturb or interrupt the functioning of the Morgentaler clinic…;
(d) Unlawfully conspiring to injure the Plaintiffs in their business by supporting, encouraging, condoning or engaging in activities 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 of operations of the Plaintiffs….. [emphasis added]
[7] I have underscored the last two paragraphs because of their significance to this appeal. While I will elaborate further below, paragraph (g) does not seek to protect everyone; it identifies the classes of persons that the order is meant to protect. Moreover, short of trespassing, the Order does not create a generally protected perimeter around the Clinic; instead, it only prohibits creating a nuisance within 500 feet of the Clinic.
(b) Events Outside of the Clinic
[8] Many years later, on October 30, 2012, Ms. Gibbons was outside of the Clinic, which had relocated to Hillsdale Avenue in Toronto.[^1] Ms. Gibbons was observed to silently walk back and forth on the sidewalk in front of the Clinic. At the time, she would have been as close as 15 feet from the front door. Ms. Gibbons was carrying a sign (the size of which was never determined at this trial), depicting an image (not a photo) of an infant with the following caption: “Why Mom? When I have so much love to give.”
[9] At one point, Ms. Gibbons walked across the street, away from the Clinic. While still holding the sign, she engaged a man and a woman in conversation. They turned away from Ms. Gibbons and the man held the woman. He then made a call on his cell phone. Ms. Gibbons walked back across the street in the direction of the Clinic. A car soon arrived to pick up the couple. There was no evidence about who these two people were. It was suggested that they were walking towards the Clinic. However, they were on the other side of the road. More importantly, there was no evidence about what Ms. Gibbons said to them. A Sherriff’s officer thought that Ms. Gibbons had attempted to counsel the couple. Short of the officer’s familiarity with Ms. Gibbons, there was nothing to substantiate this claim.
[10] Another Sherriff’s officer approached Ms. Gibbons and read aloud the entire Order of Lang J. He informed her that she was within “500 metres” (the Order says “500 feet”) of the Clinic and asked her to leave. The Order was read again. When Ms. Gibbons refused to leave, she was arrested. At the time of her arrest, Ms. Gibbons was carrying the sign and had anti-abortion pamphlets or leaflets in her hand. She also had a small (3”) plastic model of a human fetus “on her person.” There was no evidence that Ms. Gibbons displayed the plastic model or attempted to give the pamphlets to anyone.
(c) The Charges
[11] Ms. Gibbons was charged with infringing the Order made by Lang J. From the outset, there was confusion about the manner in which Ms. Gibbons breached the Order. The Sherriff’s officer who arrested Ms. Gibbons thought that she was infringing paragraph (h) (creating a nuisance within 500 feet). In an Information sworn on October 31, 2012, Ms. Gibbons was charged with: (1) disobeying a court order, contrary to s. 127 of the Criminal Code; and (2) obstructing a peace officer engaged in the lawful execution of her duty, contrary to s. 129(a) of the Criminal Code. Importantly, the first count particularized the breach as “causing a nuisance within 500 feet” of the Clinic. The second count was particularized to allege that the obstruction of the officer involved not leaving the vicinity when asked to do so.
[12] The confusion continued. Two days later, on November 2, 2012, another Information was laid, alleging the same two offences. This time, however, neither offence was particularized.
[13] The Crown withdrew the first (October 31, 2012) Information. It also withdrew the obstruct police officer count on the second Information. The trial proceeded on the sole count of disobeying a court order. Defence counsel did not request particulars. A motion for a directed verdict was brought on Ms. Gibbons’ behalf. It was suggested that the Order did not bind Ms. Gibbons because she was not a named party to the underlying proceedings and she did not consent to the Order made by Lang J. The trial judge rejected this argument.
[14] The Crown at trial (not Ms. Fericean) relied on three paragraphs of the Order to establish Ms. Gibbons’ liability, namely paragraph (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. As discussed below, the trial judge would ultimately reject these bases of liability. However, following the main submissions of counsel, and after reserving judgment, the trial judge requested that counsel re-attend for further argument. After mentioning that the Crown was relying on the three paragraphs noted above, the trial judge said:
But as I was writing my judgment, I realized that there might be another section, and since the Information was not particularized, I thought I would broach it with counsel, and I think it’s clause G, attempting to intimidate?
The Crown responded, “[y]es, you are quite correct, Your Honour” and proceeded to justify liability on this basis. Defence counsel did not object to this manner of proceeding. On the basis of R. v. Groot (1988), 1998 2151 (ON CA), defence counsel (Mr. Santoro) agreed that any prejudice that might have arisen from the trial judge’s newly posited theory of liability was cured by the opportunity to make submissions. Counsel argued that Ms. Gibbons’ conduct did not amount to an attempt to intimidate.
[15] After further argument, the learned trial judge again reserved judgment for a short period of time. In his Reasons for Judgment, he found that Ms. Gibbons did not infringe paragraphs (a), (d) and (h) of the Order. Interestingly, in rejecting the argument that Ms. Gibbons was watching and besetting that day, the trial judge said: “There is nothing in this evidence upon which I could conclude that her actions were persistent, concerted or causing any harassment within such a short time span when she was first observed.” I will return to this finding below.
[16] Ultimately, the trial judge found that Ms. Gibbons’ behaviour infringed paragraph (g). In making this finding, the trial judge did not rely upon Ms. Gibbons’ encounter with the couple across the street from the Clinic. He characterized this evidence as “neutral.” Thus, the case was determined solely on the basis of Ms. Gibbons’ silent protesting behaviour. As the learned trial Judge held:
I am satisfied beyond a reasonable doubt that Ms. Gibbons did attempt to intimidate patients from using the services of the clinic on October 30, 2012. Holding onto the plastic fetus, bearing the placard or poster, and disseminating the pamphlets draws the logical inference that she intended to attempt to intimidate patients from using the services of the clinic. No other logical explanation exists. The use of these images, the emotional impact, particularly of the poster or placard containing the image of the young infant with the words as I have already described, were clearly employed by Ms. Gibbons as a form of coercive behaviours to attempt to intimidate and to deter people from using the services of the clinic. [emphasis added]
The Positions of the Parties
[17] Ms. Gibbons raises two arguments. First, she asserts that the injunction does not apply to her or any other person not named in the proceedings before Craig J. and then Lang J. Secondly, she argues that the learned trial judge erred in finding that her conduct amounted to an attempt to intimidate.[^2]
[18] In response, Ms. Fericean for the Crown argues that the injunction applies to the named defendants and to the public at large. Secondly, she claims that this argument is an impermissible collateral attack on the Order. Thirdly, she submits that it was proved that Ms. Gibbons’ conduct amounted to an attempt to intimidate.
Analysis
[19] This case is somewhat out of the ordinary in the sense that the foundation for the criminal prosecution is an injunction obtained through the litigation of a private dispute. Nevertheless, it engages the same principles applicable to the enforcement of any order through the use of the criminal sanction. 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: R. v. Eltom (2010), 2010 ONSC 4001. In this case, while there was ample proof of the former, the evidence was lacking on the latter.
[20] The language of the Order, which was presumably drafted by the parties to the litigation, is broad in its scope, and partly couched in the language of general tort concepts. Compare the more detailed and restrictive terms of an injunction crafted by Adams J. in similar circumstances: Attorney General (Ontario) v. Dielemen et al (1994), 1994 7509 (ON SC). Ms. Gibbons has been convicted of breaching this latter order in the past: R. v. Gibbons (2013), 2013 ONSC 1403. For a discussion about the importance of precision in drafting orders granting injunctive relief, see Hon. Robert J. Sharpe, Injunctions and Specific Performance, 4th ed., looseleaf (Toronto: Canada Law Book, 2013), at pp. 1-18 to 1-19 and Culligan Canada Ltd. v. Fettes (2010), 2010 SKCA 151.
[21] For Ms. Gibbons, Mr. Rouleau argues that the term “intimidation” should be defined in a manner consistent with the tort of intimidation. For the Crown, Ms. Fericean submits that a much broader, dictionary-based definition is appropriate. In other words, the Crown submits that, even though the underlying civil action was predicated on tort liability, the Order that derived from that proceeding should be limitless in its definitional potential. I reject this argument. There would have been no legal basis to issue an injunction that sought to enjoin conduct not grounded in the advanced causes of action. As Justice Sharpe says in his text, supra, at p. 1-19, “the terms of an injunction should be no wider than is required to protect the plaintiff’s right.” See also Bowaters Newfoundland Limited v. Pelley (1977), 12 Nfld. & P.E.I.R. 251 (Nfld. C.A.), at para. 22.
[22] I agree with Mr. Rouleau that the definition of the expression “intimidate or attempt to intimidate” must be defined in a manner that is consistent with the order and reasons of Craig J. The plaintiff’s action was brought in tort. The order of Craig J. was clearly designed to terminate the alleged tortious activity. As he explained in his detailed reasons:
The tort of intimidation occurs when the plaintiffs are coerced by unlawful means, for example, a threat that obstructs them from doing something they have a legal right to do, made with an intention to injure the plaintiffs. The threat need not be express. Threatening or coercive conduct may be sufficient. In my view, excessive picketing that coerces or deters people from entering the premises amounts to intimidation Remedies in Tort, 1988, v. 1, Ch. 13; and International Union v. Pacific Western Airlines Ltd., 1986 ABCA 38, [1986] 3 W.W.R. 531 at 542 (Alta. C.A.).
[23] More recently, the elements of the tort of intimidation have been encapsulated in Philip H. Osborne, The Law of Torts, 4th ed. (Toronto: Irwin Law, 2011), at p. 311:
It is now well-established that intimidation arises where the defendant either threatens to use unlawful means to coerce a third person to damage the plaintiff or threatens unlawful acts that directly compel the plaintiff to act to his detriment…The gravamen of each is the threat of an unlawful act.
Similarly, in Tort Law, 5th ed. (Toronto: Carswell, 2012), Professor Klar stresses that the tort requires the performance of an unlawful act by the plaintiff. As he notes at p. 727: “Where the acts threatened are not unlawful, the cause of action will fail.” See also Central Can. Potash Co. v. Saskatchewan (Attorney General), 1978 21 (SCC), [1979] 1 S.C.R. 42.
[24] On the facts of this case, there was nothing unlawful or intimidating in what Ms. Gibbons did as she walked back and forth in front of the Clinic. She was holding a sign that displayed a particular message. She was in possession of leaflets and a small plastic fetus, but there was no evidence that she showed or gave these items to anyone on the street that day. 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. Indeed, the Sherriff’s officers allowed her to do so for 30 to 40 minutes before she was arrested. It was only when Ms. Gibbons spoke to the couple across the street from the Clinic that the officers believed that Ms. Gibbons had breached the Order.
[25] It may be that those associated with the Clinic desire a more effective protective zone around the premises, similar to the one created in the order of Adams J. in Dielemen, supra. That injunction prohibits “leafleting”, “handbilling” and “displaying a sign” within 60 feet of various locations. Ms. Gibbons’ conduct on October 30, 2012 would clearly have infringed that injunction. But that is not what the injunction in this case provides.
[26] In short, Ms. Gibbons’ conduct was in the realm of peaceful leafleting, a constitutionally protected activity. In United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. KMart, 1999 650 (SCC), the Supreme Court contrasted picketing with leafleting. As Cory J. said for the Court at p. 1113:
Consumer leafleting is very different from a picket line. It seeks to persuade members of the public to take a certain course of action. It does so through informed and rational discourse which is the very essence of freedom of expression. Leafleting does not trigger the “signal” effect inherent in picket lines and it certainly does not have the same coercive component. It does not in any significant manner impede access to or egress from premises. Although the enterprise which is the subject of the leaflet may experience some loss of revenue, that may very well result from the public being informed and persuaded by leaflets not to support the enterprise. Consequently, the leafleting activity if properly conducted is not illegal at common law. [emphasis added]
[27] In her submissions, Ms. Fericean characterized Ms. Gibbons’ sign as “disgusting”, “disturbing”, and “offensive”, among other pejorative labels. I am neither required nor inclined to determine whether the sign amounted to any of these things. To do so would engage me in a discussion of the substantive merits of the injunction and the moral propriety of Ms. Gibbons’ conduct. Of course, I must refrain from doing so. The sole inquiry in this case is, from a legal perspective, whether Ms. Gibbons’ conduct, including the use of the sign, was intimidating in the manner described above. There was no evidence that anyone was, or was likely to be, intimidated by Ms. Gibbons that day. Despite reference in the learned trial judge’s Reasons to the emotional impact of the sign Ms. Gibbons carried, there was no evidence adduced on this issue. Moreover, the trial judge’s finding that Ms. Gibbons behaviour was intimidating was at odds with his previous finding that the very same conduct was not “persistent, concerted or causing any harassment within such a short time span.” The evidence does not permit the inference that the conduct crossed the line from lawful attempts at persuasion to illegal intimidation through coercion.
[28] Ms. Fericean argues that Ms. Gibbons’ conduct did not amount to permissible leafleting because the sign that she carried was irrational in that it attributed spoken words to an infant. If this strictly literal approach were to be accepted, it would make many modes of potentially persuasive expression illegal. For example, it would ban the use of signs and literature that employ cartooning or animation, based on the theory that cartoon characters do not exist in the physical world and therefore cannot hold, let alone express, real views. It would also outlaw signs that attribute words to animals, because we all know that animals do not speak words (except, perhaps, in cartoons). I reject this approach. While some may find Ms. Gibbons’ mode of expression not to their tastes, her conduct that day managed to elude the reach of the Order. Or perhaps it might be more accurate to say that the investigation of Ms. Gibbons’ conduct failed to gather evidence of a breach.
[29] By way of example, Ms. Fericean places a great deal of emphasis on the conversation that Ms. Gibbons had with the man and woman on the street that morning. The learned trial judge rightly treated it as neutral behaviour because there was no investigation of what Ms. Gibbons said to these two individuals. She may have said something that was intimidating; she may have said something that was quite benign. We will never know. Without this key piece of evidence, nothing may be evinced from the encounter.
[30] Lastly, Ms. Fericean argues that, if I accept Ms. Gibbons’ argument concerning the intimidation paragraph of the injunction, I should sustain the conviction by re-visiting the learned trial judge’s conclusion that Ms. Gibbons’ behaviour that day did not constitute a nuisance. In my view, the trial judge’s finding on this paragraph of the Order was reasonable.
Conclusion
[31] While the spirit of the Order of Lang J. was clearly breached, Ms. Gibbons’ conduct on October 30, 2012 did not amount to an attempt to intimidate. A different conclusion might be reached in circumstances where a protestor is more active, uses a different sign, uses the same sign in a different way or engages in concerted activity with others. But that is for another day.
[32] Accordingly, I respectfully set aside the conviction as unreasonable and not supported by the evidence and substitute an acquittal. In the circumstances, it is not necessary to consider the other issues addressed by counsel.
TROTTER J.
Released: July 23, 2014
COURT FILE NO.: 47/13
DATE: 20140723
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LINDA GIBBONS
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: July 23, 2014
[^1]: The final Orders of Lang and Cameron JJ. referred to premises “located at 157 Gerrard Street East, Toronto or such other premises in the City of Toronto to which the Plaintiffs may relocate.”
[^2]: On the morning of the appeal, Counsel attempted to argue a further ground of appeal, not previously in its factum and not argued at trial. The proposed argument was that Ms. Gibbons should have been charged with contempt of court, rather than being charged under s. 127 of the Criminal Code. Due to the timing of the new argument, its foundational nature and the lack of notice given to the Crown, I declined to permit the ground to be argued.