A Valiant Attempt to Fight the Court’s Contempt: R v Gibbons

Linda Gibbons is no stranger to the law, and to the fact that it can be a harsh teacher, given that she has spent a fair amount of time in prison for her anti-abortion picketing activities.  Labeled by the media as “peaceful but relentless,” Gibbons has served a total of nearly nine years behind bars, giving her quite the reputation as a lawbreaker. Her latest run-in has resulted in a loss before the Supreme Court of Canada (SCC).  By a resounding majority, the Court ruled that by repeatedly violating a civil injunction order that was issued in 1994, she could, in fact, be charged under the Criminal Code (CC) for contempt of court. The case, R v Gibbons (2012 SCC 28), was decided by the SCC on June 8, 2012, with an 8-1 majority ruling. The Court conducted a highly technical analysis, pitting provisions of the Ontario Rules of Civil Procedure (ONRCP), r. 60.11 and 60.12) against those of the Criminal Code (s. 127(1)). The issue before the Court was whether the ONRCPs contained sufficiently strong provisions to justify being used in lieu of the CC, to “punish” repeated offenders like Gibbons for violating injunction orders that were set against them. The majority of the SCC applied a narrow 3-factor test, which led to its conclusion that the CC must prevail. The sole dissenter in the ruling, Justice Fish, chose to consider the ONRCP provisions as more than mere recognizers or preservers of the common law (at para. 35), and held that they would have provided sufficient basis to trigger an exception to criminal liability under s.127(1) of the CC.

Facts

Gibbons is known both in civil and legal circles as a tireless protester against abortion, a role that she has stuck to with amazing dedication since 1970s, in keeping with her moral and religious convictions. Even more her noteworthy is her constant disregard for the law and its disciplinary mechanisms, including the subject of this case, an 18-year old temporary injunction that she violated by picketing in front of certain clinics that she was told to stay away from. Filed against her in 1994, the civil court order asked that she refrain from picketing in front of these abortion clinics, but did not seem to specify the length of time that she was to do so. In the years since then, Gibbons went through numerous arrests and much jail time for violating the order. Finally, she faced criminal charges for repeated disobedience of the order, by being held in contempt of court, which she subsequently appealed to the SCC. The sole issue at trial then, was whether she could be held liable under s. 127(1) of the CC, which focuses on meting out punishment as a criminal liability for contempt of lawful civil court orders. Alternatively, Gibbons asked the SCC to consider if she could face civil liability instead. ONRCP rules 60.11 and 60.12, which were set up to issue contempt orders to offenders in a civil context, were considered in the latter situation. Naturally, when compared to the ONRCP provisions criminal liability has much higher consequences under s. 127(1); imprisonment is a major factor in its considerably increased power.

Analysis

Writing for the majority, Justice Deschamps cited R v Clement, [1981] 2 S.C.R. 468 extensively, using it to assess whether Gibbons’ actions could be suitably punished in a civil context. She drew three conditions necessary for the creation of an “express alternative statutory arrangement” that would help an accused person escape criminal liability under s. 127(1) of the CC. These were: 1) if and when Parliament or legislature had provided a “legal foundation for the court’s power to issue contempt orders, 2) had defined the circumstances when contempt would be found, and 3) had provided specific punishment for the contempt” (at para. 8). If these conditions had been met, Gibbons would have satisfied the requirements for the s. 127(1) exception, and would have been charged as per the ONRCP. For the remainder of the analysis, the majority and the minority each considered whether these three factors had been met by the ONRCP, and if Gibbons would have to be held criminally liable. As it turned out, the s. 127(1) exception had not been triggered, and Gibbons did end up facing criminal charges.

Deschamps J. and the majority held this alternative statutory framework to a high standard, by stating that just having provisions for punishment within them would not be enough; what was needed was a detailed legal framework which would clearly outline any action that would be taken against someone who was held to be in contempt of court. The Court stated that an “inherent” provision could not, by nature, be an “express” one as well (at para. 5). Further, the majority held that the ONRCP provisions’ reliance on the common law could not be held as a sufficiently strong substitute for the criminal contempt provision of the CC. Deschamps J. rejected Gibbons’ argument that s.127(1) was only to be invoked when all other legislative and statutory alternatives had been exhausted. In her opinion, while this was a legitimate policy concern, it was not relevant in this case, as the conditions to trigger an exception to s. 127(1) had not been met in this case (at para. 12). In reaching this conclusion, the majority seems to have begun with the assumption that that the CC provision was the most fitting one to begin with, and placed the onus on Gibbons to prove that it was not, which the latter failed at. Further, Deschamps J. also rejected the argument that s. 127(1) was overreaching in its authority, and would discourage provinces to administer their own schemes (at para. 13), because there was no evidentiary basis found for this allegation. The final straw that broke the SCC camel’s back, however, was that the ONRCP provisions were solely procedurally-based; while they outlined a clear and detailed procedure for action to be taken against someone who had been held in contempt of court, they lacked specifics with respect to the definition of contemptuous behaviour, and terms of imprisonment. A simple reliance on procedure then, was not enough to pass muster with the majority of the SCC— who seemed eager to avoid too much emphasis on just common law precedent and judicial discretion in favour of the CC‘s more stringently defined legal framework.

In contrast, Fish J. did not find the ONRCP provisions to be lacking at all. He found these rules to be placed squarely within the definitions provided in s. 127(1) of the CC, in that they were definitely law, and that they “expressly” provided “a punishment or other mode of proceeding for disobedience of the court order” (para. 18). In distinguishing from the majority’s use of Clement, Fish J. found that rules 60.11 and 60.12 provided “an originating motion, complete with notice requirements, affidavit support, prescribed forms, and powers of the court in disposing of such motions…” (at para. 28).  He deemed this was enough to hold the ONRCP provisions as having crossed the “merely procedural framework” threshold, contrary to the majority’s findings. Additionally, he held that the rules aided in furthering existing common law by engaging with it, and providing guidelines for its development. Hence, Fish J. found that the ONRCP provisions would have triggered the exception to criminal liability under s. 127(1) of the CC, and Gibbons would not have needed to be charged with a criminal offence.

Implications

It seems as though the SCC has ruled strongly on a matter that has long been a thorn in the side of the judiciary. Gibbons has been unapologetic about her beliefs, and has invoked her s.2 Charter rights of freedom of expression (s. 2(b)) and peaceful assembly (s.2(c)) to carry out her activities. Commentators have deemed the SCC’s judgment as disadvantageous for persons whose views might go against those of the majority, even though the SCC’s ruling was about contempt orders, and not about Gibbons activities per se. What will be interesting to note, however, is if the precedent set by this decision can create a distinction between the quality of contempt of the court, if such a thing can exist.

For instance, supporters of anti-abortion movements consider Gibbons to be a hero, and do not think her actions are worthy of criminal sanctions. In fact, they might argue that the courts are deliberately trying to silence Gibbons by using “contempt of court” as a tool. The SCC seems to have avoided considering why Gibbons was so adamant about ignoring her injunction. Admittedly, this was not the issue that was put forward at this trial, but it also seems as though the SCC might have pointedly avoided addressing or even alluding to it, to avoid stirring up even more controversy around the abortion debates. It will be worth noting how future courts will pit Charter rights against the CC‘s 127(1) in similar matters. After all, one person’s nuisance activist is another’s crusader, and currently, Gibbons has not set any way to distinguish between the two, except perhaps, ironically, through judicial discretion— the very method the SCC sought to avoid through this ruling, by giving the importance it did to the CC’s 127(1) framework.