



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gibbons, 2015 ONCA 47

DATE: 20150126

DOCKET: C56895

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Gibbons

Appellant

Nicolas M. Rouleau and Daniel C. Santoro, for the
    appellant

Susan Magotiaux, for the respondent

Heard: January 16, 2015

On appeal from the judgment of Summary Conviction Appeal
    Judge Gary T. Trotter of the Superior Court of Justice 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, with reasons reported at 2010 ONCJ 470 and 2011 ONCJ 218.

By
    the Court:

[1]

The appellant seeks leave to appeal a summary conviction
    appeal court judges order dismissing an appeal from a conviction under s. 127
    of the
Criminal Code
,
R.S.C. 1985, c. C-46.
    Section 127 makes it an offence to disobey a lawful order, other than an order
    for the payment of money, without lawful excuse, unless a punishment or other
    mode of proceeding is expressly provided by law.
[1]

[2]

On January 20, 2009, the appellant breached an
    interlocutory injunction, issued in 1994 by a judge of the Ontario Court
    (General Division), which prohibits anti-abortion protests within 60 feet of certain
    abortion clinics.

[3]

At trial, the appellant did not contest the
    Crowns assertion that she acted in a manner that violated the terms of the
    injunction. Rather, the appellant argued before both the trial judge and the
    summary conviction appeal court judge, as she does on this appeal, that, by
    virtue of its delay and other conduct in the civil proceeding, the Crowns
    prosecution of her is an abuse of process. In addition, the appellant argued,
    and argues, that s. 127 of the
Criminal Code
is unconstitutional. In comprehensive reasons, both the trial judge and the
    summary conviction appeal court judge rejected these submissions.

[4]

For the reasons that follow, leave to appeal is
    granted but the appeal is dismissed and the appellants application to
    introduce fresh evidence on appeal is denied.

(1)

Abuse of Process

[5]

In our view, the summary conviction appeal court
    judge was correct to dismiss the appellants abuse of process argument.

[6]

The trial judges findings concerning this issue
    included the following:

·

she was unable to conclude that the Crown was
    intentionally delaying the injunction proceeding, because it appeared that all
    parties, at least as was known to the Crown at the time, have been content with
    the pace of litigation;

·

she was unable to conclude that the Crown was
    prosecuting the appellant knowing that the delay on the part of the Crown Law
    Office  Civil was malicious, as [f]rom the evidence presented at the hearing,
    the delay seem[ed] to be by agreement of all parties;

·

she was not satisfied that the delay in the
    injunction proceeding standing alone would be a basis for setting aside the
    interlocutory injunction; and

·

based on the confusion concerning whether the appellants
    counsel in the injunction proceeding continued to represent her, the trial
    judge was not satisfied that the Crown was negligent in failing to involve her
    in that proceeding.

[7]

The test for granting a stay based on abuse of
    process on the residual ground on which the appellant relies creates a high
    threshold: an abuse of process occurs where a prosecution is conducted in such
    a manner as to connote unfairness or vexatiousness of such a degree that it
    contravenes fundamental notions of justice and thus undermines the integrity of
    the judicial process:
R. v. OConnor
, [1995]
    4 S.C.R. 411,

at para. 73; see also
R. v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 49-50.

[8]

In the face of the trial judges findings, as
    set out above, there was no basis for a finding that the prosecution of the
    appellant for breach of the interlocutory injunction constituted an abuse of
    process. The fact of the delay and the trial judges additional statements that
    she was troubled by the delay and somewhat troubled by the Crowns laissez
    fair[e] attitude do not change that.

[9]

In any event, we also agree with the summary
    appeal court judge and the trial judge that the abuse of process argument is an
    impermissible collateral attack on the underlying order for an interlocutory
    injunction for the reasons they explained. The appellants proposed fresh
    evidence, which indicates that the Crown has not moved the civil proceeding
    forward following her conviction, does not alter this conclusion. We decline to
    admit the fresh evidence.

(2)

Constitutionality of s. 127

[10]

There are two aspects of the appellants
    constitutional argument. First, the appellant raises a division of powers
    argument. On this issue, we agree with the reasons of the summary conviction appeal
    court judge and the trial judge.

[11]

In this court, the appellant focused on an
    argument that s. 127 is
ultra vires
Parliament
    because the section impermissibly delegates part of the federal criminal law power
    to provincial legislatures through the exception contained in s. 127. The
    appellant also argued that s. 127 lacks a valid criminal law purpose.

[12]

We reject the appellants division of powers argument.
    The Supreme Court of Canada has made it clear that Parliament may delegate legislative
    authority to bodies other than provincial legislatures, it may incorporate
    provincial legislation by reference and it may limit the reach of its
    legislation by a condition, namely the existence of provincial legislation:
R.
    v. Furtney
, [1991] 3 S.C.R. 89, at pp. 104-105. In our
    view, s. 127 is an example of the latter. See also
R. v. Hydro-Quebec
, [1997] 3 S.C.R. 213, at para. 153, where the court observed, with
    respect to federal legislation, that Parliament has made it clear that the
    provisions of this Part are not to apply where a matter is otherwise regulated
    under other equivalent federal or provincial legislation.

[13]

Further, as the summary conviction appeal judge pointed
    out at para. 21 of his reasons, McLachlin J. addressed this issue in
United
    Nurses of Alberta v. Alberta (Attorney General)
, [1992] 1
    S.C.R. 901, at p. 938. She said:

The distinction between creating the criminal
    law and engaging it is illustrated by consideration of s. 127 of the [
Criminal
]
Code
, 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. [Emphasis in
    original.]

[14]

Although the constitutionality of s. 127 was not at issue in
United
    Nurses
, it is clear that this analysis would only apply to a
    constitutionally valid exercise of the federal power over criminal law.

[15]

We also reject the appellants submission that s. 127 is unconstitutional
    because it does not reflect a valid criminal law purpose, for the reasons given
    by the trial judge and the summary conviction appeal judge.

[16]

Based on the foregoing reasons, we would not
    give effect to the appellants division of powers argument.

[17]

The second aspect of the appellants
    constitutional argument is that s. 127 contravenes s. 7 of the
Canadian
    Charter of Rights and Freedoms
because it is arbitrary,
    overbroad and grossly disproportionate. We see no merit in these arguments. We
    agree with the Crown that, because the purpose of s. 127 is directed at maintaining
    public order and preserving respect for the administration of justice  and
    because the section is a specific-intent offence that provides for a
defence
of lawful excuse, is hybrid in nature and has internal limitations
     the effect of s. 127 cannot be arbitrary, overbroad or grossly
    disproportionate and does not breach s. 7 of the
Charter
. We decline to
    give effect to this ground of appeal.

(3)

Disposition

[18]

Leave to appeal is granted, but the
    appeal and the application to introduce fresh evidence on appeal are dismissed.

K. Feldman J.A.

Janet Simmons J.A.

S.E.
    Pepall J.A.





[1]

The full text of s. 127(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, is 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.


