



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gibbons, 2013 ONCA 777

DATE: 20131220

DOCKET: M43201 (C56895)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Gibbons

Appellant/Applicant

Nicolas Rouleau, for the applicant

Jennifer Mannen, for the respondent

Heard: December 17, 2013

On application to appoint counsel pursuant to s. 684 of
    the
Criminal Code
on an application for leave to appeal from the
    judgment of Justice Gary T. Trotter of the Superior Court of Justice, sitting
    as a summary conviction appeal judge, dated March 15, 2013, with reasons
    reported at 2013 ONSC 1403, dismissing the appeal from the conviction entered on
    April 12, 2011, by Justice Mara B. Greene of the Ontario Court of Justice.

Juriansz J.A.:

[1]

This is an application for funding under s. 684 of the
Criminal Code
,
    R.S.C. 1985, c. C.46 (the 
Code
).

[2]

The applicant was found guilty by a judge of the Ontario Court of
    Justice on a charge of disobeying a court order, contrary to s. 127 of the
Code
.
    The court order she breached was an interlocutory injunction made in a civil
    case in 1994. In 1994, the applicant was a named defendant in
Ontario (Attorney
    General) v. Dieleman
(1994), 20 O.R. (3d) 229 (Gen. Div.). The applicant
    and the other defendants were engaging in protests outside of abortion clinics,
    including the Scott Clinic in Toronto. The Attorney General obtained an interim
    injunction prohibiting the applicant and others from being within 60 feet of
    the clinics while they were open, and from engaging in a number of specified
    activities in the vicinity of the clinics. The case never proceeded to trial
    and the interim injunction has remained in force.

[3]

The applicant was found guilty of disobeying the order in January 2009
    by standing directly in front of the Scott Clinic and holding a sign. The
    police cautioned the applicant and asked her to move. When she refused, she was
    arrested, charged and convicted of a breach of s. 127. Her appeal to the
    Superior Court of Justice was dismissed, and she wishes to seek leave to appeal
    to this court. She has been refused a legal aid certificate by the Group
    Applications and Test Cases Committee of Legal Aid Ontario.

[4]

The applicant seeks to raise two arguments on appeal. She challenges the
    constitutionality of s. 127 and argues that the proceedings against her should
    be stayed as an abuse of process. Counsel for both the applicant and the Crown
    agree that the application turns on the merit of the proposed appeal. I am
    satisfied the applicant cannot advance the complex legal arguments herself, and
    the parties agree that the applicant meets the other criteria for funding. Counsel
    did not provide a case defining the standard to be met to obtain s. 684 funding
    for an application for leave to file a second appeal. The usual merits test for
    funding a first appeal is laid out by Doherty J.A. in
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.). In my view, when the issue is an
    application for leave to file a second appeal, the applicant must establish
    that it is reasonably arguable that leave to appeal should be granted.

[5]

I will consider the applicants arguments in light of this standard.

(1)

The constitutional argument

[6]

Section 127(1) of the
Code
provides as follows:

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 of

(a) an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction. [Emphasis
    added.]

[7]

The applicants argument focuses on the excepting phrase unless a
    punishment all other mode of proceeding is expressly provided by law. She
    submits that the excepting phrase of s. 127 impermissibly delegates to the
    provinces a role in defining what behavior is criminalized. A province by
    enacting an other mode of proceeding is able to determine the scope of
    behavior to which s. 127 applies. Neither of the courts below dealt with this
    aspect of the applicants argument. I consider that it is reasonably arguable
    that leave to appeal should be granted on this issue.

(2)

The abuse of process argument

[8]

The abuse of process argument is not as clear. The trial judge found as
    a fact that all parties were content with the pace of the litigation. The
    confusion about whether the applicant was represented was due to a minor
    misstep and did not result in any prejudice to her. She was well aware of the
    interim injunction was still in force when she engaged in protest in front of
    the Scott Clinic in January 2009. A finding of abuse of process is reserved for
    the clearest of cases and the applicant cannot launch a collateral attack on
    the validity of the order: see
R. v. Nixon
, 2011 SCC 34, [2011] 2
    S.C.R. 566, at paras. 33-42.

[9]

Counsel for the applicant submits there is no collateral attack. He
    recognizes the validity of the order but argues it is unenforceable against
    her. He submits that the Attorney General, upon obtaining an interim injunction
    that interferes with the freedom of expression of an individual, has a duty to
    move the case forward to trial to avoid an order intended to be temporary
    remaining in place permanently.

[10]

In
    my view the applicants position is weak but reasonably arguable on a leave
    application. The standard of reasonably arguable does not require that I be
    satisfied at this stage that leave to appeal should be granted.

(3)

Conclusion

[11]

In
    my opinion, it is desirable in the interests of justice that the applicant be
    represented and that counsel be appointed to represent her on an application
    for leave to appeal to this court, and if leave is granted, on the appeal.
    Should Legal Aid decline to issue a certificate on a reconsideration
    contemplated under s. 28(6) of the
Legal Aid Services Act, 1998
, S.O.
    1998, c. 26, an order under s. 684 shall issue.

Released: December 20, 2013

R.G. Juriansz J.A.


