Her Majesty the Queen v. Gibbons

[Indexed as: R. v. Gibbons]

Ontario Reports

Ontario Superior Court of Justice,

Trotter J.

June 4, 2015

126 O.R. (3d) 751 | 2015 ONSC 3617

Case Summary

Criminal law — Disobeying court order — Appellant violating injunction which was imposed to protect abortion clinic in proceedings to which she was not named party — Appellant properly convicted of disobeying court order contrary to s. 127 of Criminal Code — Criminal contempt charge not only way to enforce order against non-party — Criminal Code, R.S.C. 1985, c. C-46, s. 127.

Injunctions — Enforceability — Appellant not named party to proceedings which led to court order enjoining named parties and "John Doe, Jane Doe and Other Persons Unknown" from interfering with abortion clinic — Injunction nevertheless enforceable against appellant — Appellant's argument that injunction was unenforceable against her also amounting to impermissible collateral attack on underlying order.

The appellant was found to have violated an injunction imposed to protect an abortion clinic. She was not a named party to the proceedings in which the order was made, but the order enjoined "John Doe, Jane Doe and Other Persons Unknown". She was convicted of disobeying a court order contrary to s. 127 of the Criminal Code. The appellant appealed, arguing (1) that the injunction was unenforceable against non-parties and (2) that she should have been charged with criminal contempt rather than with an offence under s. 127.

Held, the appeal should be dismissed.

The trial judge did not err in finding that the injunction applied to the appellant even though she was not a named party to the underlying litigation. In any [page752] event, the appellant's argument that the injunction was unenforceable against her amounted to an impermissible collateral attack on the injunction.

A criminal contempt charge is not the only way to enforce an order against a non-party. Section 127 of the Code could be properly invoked in the circumstances of this case.

MacMillan Bloedel Ltd. v. Simpson, 1996 165 (SCC), [1996] 2 S.C.R. 1048, [1996] S.C.J. No. 83, 137 D.L.R. (4th) 633, 199 N.R. 279, [1996] 8 W.W.R. 305, J.E. 96-1690, 79 B.C.A.C. 135, 22 B.C.L.R. (3d) 201, 109 C.C.C. (3d) 259, 22 C.E.L.R. (N.S.) 1, 2 C.P.C. (4th) 161, EYB 1996-67128, 65 A.C.W.S. (3d) 79, 31 W.C.B. (2d) 543; R. v. Gibbons, [2012] 2 S.C.R. 92, [2012] S.C.J. No. 28, 2012 SCC 28, 292 O.A.C. 1, 430 N.R. 228, 2012EXP-2194, J.E. 2012-1141, 283 C.C.C. (3d) 295, 348 D.L.R. (4th) 214, 24 C.P.C. (7th) 225, 100 W.C.B. (2d) 787; R. v. Watson, 1996 2013 (BC CA), [1996] B.C.J. No. 733, 73 B.C.A.C. 281, 22 B.C.L.R. (3d) 1, 106 C.C.C. (3d) 445, 30 W.C.B. (2d) 445 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 256, 108 C.C.C. (3d) vi], consd

Other cases referred to

Morgentaler v. Wiche, [1989] O.J. No. 2582 (H.C.J.); R. v. Gibbons, [2014] O.J. No. 3508, 2014 ONSC 4269 (S.C.J.); R. v. Gibbons, [2015] O.J. No. 326, 2015 ONCA 47, 318 C.C.C. (3d) 261, 329 O.A.C. 198, 119 W.C.B. (2d) 478, affg [2013] O.J. No. 1212, 2013 ONSC 1403, 278 C.R.R. (2d) 363 (S.C.J.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 127 [as am.]

Authorities referred to

Sharpe, Robert J., Injunctions and Specific Performance, 4th ed., looseleaf (Toronto: Canada Law Book, 2012)

APPEAL from a conviction for disobeying a court order.

Darren Hogan, for Crown.

Daniel C. Santoro and Nicolas M. Rouleau, for Ms. Gibbons.

TROTTER J.: —

1. Introduction and Background

[1] After a trial before the Honourable Justice F. Bhabha of the Ontario Court of Justice, Ms. Gibbons was found guilty of disobeying a court order, contrary to s. 127 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Ms. Gibbons was found to have violated an injunction imposed many years ago to protect a Toronto abortion clinic, its employees and patients. Ms. Gibbons was not a named party to the proceedings leading up to the court order that enjoined named parties, as well as "John Doe, Jane Doe and Other Persons Unknown". For a brief summary of the history of these proceedings, see R. v. Gibbons, [2014] O.J. No. 3508, 2014 ONSC 4269 (S.C.J.), at paras. 3 to 7. [page753]

[3] Ms. Gibbons defended the charge on the merits and by asserting that, based on MacMillan Bloedel Ltd. v. Simpson, 1996 165 (SCC), [1996] 2 S.C.R. 1048, [1996] S.C.J. No. 83, 109 C.C.C. (3d) 259 ("MacMillan Bloedel"), the order is unenforceable against non-parties. The trial judge disagreed with the legal argument. She also found that the evidence established a breach of the order.

[4] Ms. Gibbons appeals. She does not contest her conviction on the facts. Instead, she attacks the trial judge's legal ruling. She also seeks to raise a new issue for the first time on the appeal.

2. Analysis

(a) Injunctions and non-parties

[5] I see no error in the manner in which the learned trial judge resolved the legal issue before her. The injunction applied to Ms. Gibbons, even though she was not a party to the underlying litigation. I adopt the trial judge's reasoning and make the following observations.

[6] First, in MacMillan Bloedel, McLachlin J. (as she then was) discussed the impact of injunctions on non-parties. Responding to the argument that it is improper to use private litigation to obtain an injunction to constrain public action, she said the following, at p. 271 C.C.C.:

The interlocutory injunctions obtained against the named defendants for blocking the logging roads also bound members of the public at large. There is nothing new in this. Canadian courts have for decades followed the practice of issuing orders directed at prohibiting interference with private property rights, which orders affect not only the named parties but also the general public.

For the purposes of this case, it is unnecessary to go further. I note, however, that where a final injunction is in issue, some cases suggest that caution should be exercised in including non-parties in the terms of the order: Sandwich West (Township) v. Bubu Estates Ltd. (1986), 1986 2645 (ON CA), 30 D.L.R. (4th) 477 (Ont. C.A.) . . . Subject to this caveat and other considerations bearing on the special circumstances of the case, the proposition that the courts possess inherent jurisdiction to issue injunctions to restrain large-scale public action violative of private rights enjoys wide recognition.

(Emphasis added)

Interestingly, included in the numerous authorities cited in support of this proposition is Morgentaler v. Wiche, [1989] O.J. No. 2582 (H.C.J.), the foundational judgment that resulted in the injunction in this case.

[7] Second, around the time that MacMillan Bloedel was making its way to the Supreme Court of Canada, the same issue arose in R. v. Watson, 1996 2013 (BC CA), [1996] B.C.J. No. 733, 106 C.C.C. (3d) 445 (C.A.), leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 256, 108 C.C.C. (3d) vi. This case also involved activities outside of an [page754] abortion clinic. Just like Ms. Gibbons, Watson was not a named defendant in the injunction proceedings. Nevertheless, he was convicted of criminal contempt for engaging in conduct prohibited by the order. On appeal, he made the same argument as Ms. Gibbons -- because he was not a party to the proceedings, he could not be held legally accountable for his conduct.

[8] The British Columbia Court of Appeal dismissed his appeal. As Prowse J.A. held, at pp. 452-53 C.C.C.:

The full answer to Mr. Watson's submission that the order does not apply to him is found in the wording of the order which, in express terms, says that it applies to "anyone who has knowledge of this Order." There is no dispute that Mr. Watson had knowledge of the order at the time he participated in the activities that resulted in his charge and conviction for criminal contempt. In MacMillan Bloedel Ltd. v. [Simpson] (1994), 1994 943 (BC CA), 93 C.C.C. (3d) 289 (B.C.C.A.), the majority of this court held (2:1) that an injunction which expressly provides that it applies to third parties can be enforced against third parties by contempt proceedings.

Shortly after this judgment, the Supreme Court released its decision in MacMillan Bloedel. It subsequently refused leave to appeal in Watson.

[9] Even though Ms. Gibbons was not a party to the underlying litigation, she is still prohibited from engaging in the conducted specified in the order. To hold otherwise would render the order virtually useless. Moreover, Ms. Gibbons is well acquainted with the order and its prohibitions. It was read to her before she was arrested. She was given a chance to desist and leave the vicinity. She decided to ignore the order and forge ahead.

[10] While I have addressed this ground of appeal on the merits, it really amounts to an impermissible collateral attack on the underlying order. Ms. Gibbons prefers to breach orders first and then challenge their validity afterwards: see R. v. Gibbons, 2013 ONSC 1403, [2013] O.J. No. 1212, 278 C.R.R. (2d) 363 (S.C.J.), at paras. 33-38, affd 2015 ONCA 47, [2015] O.J. No. 326, 318 C.C.C. (3d) 261 (C.A.), at p. 266 C.C.C. On this appeal, she argues that her challenge is to the applicability of the order, not its validity. I disagree. Underlying the argument about the reach or scope of the order is the more fundamental assertion that the judge that made the original order erred by purporting to enjoin the conduct of non-parties. This amounts to a collateral attack on the validity of the order.

[11] This ground of appeal must fail.

(b) Contempt vs. [s. 127](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec127_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[12] Ms. Gibbons seeks to raise a new argument on appeal. Also based on MacMillan Bloedel, she now argues that she should never have been charged under s. 127 of the Criminal Code. [page755] Instead, Ms. Gibbons argues that she should have been charged with criminal contempt.

[13] While it is somewhat perplexing that this issue was not raised on Ms. Gibbons' behalf at trial (or in some of her other cases), I am satisfied that this failure was not tactical. Moreover, the record is sufficient for me to consider and dispose of this argument.

[14] I am not persuaded that MacMillan Bloedel stands for the proposition that the only manner of enforcing an order against a non-party is through the criminal contempt power. In Hon. Robert J. Sharpe, Injunctions and Specific Performance, 4th ed., looseleaf (Toronto: Canada Law Book, 2012), the learned author notes that, in circumstances like the case at bar, the usual course is for the Attorney General to commence a motion for contempt or launch a prosecution under the Criminal Code. Here, he specifically references s. 127 of the Criminal Code. As Justice Sharpe further observed (at p. 6-31):

Proceedings taken under the Criminal Code involve the full paraphernalia of the trial of an indictable offence, including the right to elect trial by judge and jury. Since cases are seen as criminal in the sense that they are taken to punish rather than coerce compliance, it is difficult to see why proceedings under the Code should not be the ordinary course. However, this does not seem to be the case and it would appear that the usual practice is to proceed by way of motion. Still, it is clear that resort may be had to the Criminal Code.

(Emphasis added)

[15] Justice Sharpe then refers to R. v. Gibbons, 2012 SCC 28, [2012] 2 S.C.R. 92, [2012] S.C.J. No. 28, 283 C.C.C. (3d) 295 ("Gibbons"), a case in which Ms. Gibbons was alleged to have violated a different order, at a different abortion clinic. Ms. Gibbons was a party to the underlying proceedings in that case. The Supreme Court's decision essentially absorbs the new issue on this appeal. The court accepts that the criminal contempt and s. 127 may coexist. As Deschamps J. said for the majority, at p. 301 C.C.C.: "Parliament and the legislatures may provide an express alternative to the failure to obey a court order even where the court's power to take contempt proceedings originates in common law." It is an express statutory response to impugned conduct that renders s. 127 inoperative, not the availability of criminal contempt proceedings.

[16] MacMillan Bloedel was a case about criminal contempt. The court made no reference to s. 127 of the Criminal Code. MacMillan Bloedel must be viewed along with the court's decision in Gibbons, which deals directly with the scope of s. 127. The inescapable conclusion to be drawn from these two decisions is that s. 127 of the Criminal Code may be properly invoked in the circumstances of this case. That Ms. Gibbons was not a party to the underlying proceedings does not dislodge the [page756] combined effect of this authority. It was irrelevant to the Supreme Court's analysis in Gibbons. It is irrelevant in this case.

3. Conclusion

[17] The appeal is dismissed.

Appeal dismissed.

End of Document