Supreme Court dismisses Gibbons appeal
Gibbons was appealing a criminal charge of disobeying a court order by arguing that while the 18-year-old temporary injunction she is accused of violating was instituted by a civil court, she has since been tried in criminal courts.
Her lawyer, Daniel Santoro, argued that the Crown is taking her before the criminal court because the civil court would have the power to overturn the injunction.
But the Supreme Court agreed with the Crown in an 8-1 decision issued at 9:45 a.m.
Gibbons’s criminal charge was quashed by a lower court judge in January 2009 on the grounds that the matter was improperly heard in a criminal, rather than civil, court. But the Ontario Court of Appeal later overturned the ruling and reinstated her criminal conviction.
Gibbons has spent nine of the last 18 years behind bars for repeated violations of the injunction because she steadfastly refuses to accept a bail condition that requires her to stay away from the abortion facilities.
She told LifeSiteNews in 2011 that signing the bail papers would be like saying, “Yes I will cease defending innocent unborn children that are about to be killed.” She explained, “If a two-year-old was being murdered next door, you’re not going to sit down and write a letter to your MP.” She added: “When we’re having unborn children slaughtered at the rate we are in Canada … should our lives go on as normal?”
The 1994 injunction was instituted by Bob Rae’s provincial NDP government amidst calls for a government crackdown against the pro-life movement after they were declared guilty by the media for the 1992 fire and explosion at abortionist Henry Morgentaler’s Toronto facility. Charges were never laid in that bombing, however, and the prime suspect was the father of a child aborted at the facility.
Nevertheless, the injunction has had the effect of silencing pro-lifers’ freedom of speech, and effectively impeding the life-saving work of sidewalk counselors and vigil-keepers.
Gibbons told LifeSiteNews in 2011 that she will continue to challenge the injunction “as long as God gives me life and breath. If I can get out of bed and put my feet on the floor, then I want to continue.” She added: “When we begin to suffer for the unborn, our identification with them, that’s when we’re going to impact society, when they see that.”
The majority opinion was written by Justice Marie Deschamps and it is a highly technical analysis of the applications of the Ontario Rules of Civil Procedure (sections 60.11 and 60.12) and section 127.1 of the Criminal Code. Lawyer Daniel Santoro argued the ONRCP contempt orders applied because the injunction was granted in a civil court. The state said that as a repeat offender, Gibbons should face the more stringent criminal sanctions.
Pro-life activists note that Gibbons is never charged with violating the injunction because if she was, she could challenge the constitutionality of the injunction. Instead, she is often charged with disobeying an officer’s lawful order. Santoro has argued that is an abuse of process.
Santoro argued that Criminal provisions could only be used once civil procedures were exhausted. The Supreme Court majority disagreed.
Deschamps’s opinion created a three-pronged test as to when the Criminal Code should be used, but as legal analyst Mekhala Chaubal wrote at thecourt.ca blog, “the majority seems to have begun with the assumption that the CC (Criminal Code) provision was the most fitting one to begin with, and placed the onus on Gibbons to prove it was not.”
Justice Morris Fish was the sole dissenter as he found that the Ontario Rules of Civil Procedure applied under the Section 127 exceptions from Criminal Code charges and thus agreed with Gibbons’s lawyers that the civil procedures should be exhausted before going to Criminal Court.
The National Post editorialized in Gibbons’ favour, saying that “notwithstanding the technical aspects of the legal case against” her, “the underlying animus against her is clear.”
The Post claimed that although Canada permits abortion, it is wrong to “build a protective ring around the issue, and make advocacy against abortion a restricted activity.”
The Crown dropped the case decided by the Supreme Court because Gibbons had already served six months in jail awaiting trial. She still, however, faces charges in another case stemming from an August 2011 arrest at the Morgentaler abortuary in Toronto.
Crown attorney Andrew Cappell told Judge William Wolski that Gibbons was “disturbing” abortuary clients and that by distributing pro-life pamphlets she was “intimidating people into not having these abortions performed – intimidating them into not executing a legal right that they have.”
Gibbons’ lawyer Daniel Santoro said his client’s action are peaceful and although “it may be disturbing, she’s allowed to do that.” He pointed out that she was not preventing the abortion facility from taking in clients or carrying out abortions: “nothing she is doing is disturbing the function of the clinic.” Santoro said, “if she persuades someone not to go in, so be it.”
Parts of this article originally appeared June 8 at LifeSiteNews.com and is used with permission.