SUPREME COURT OF CANADA

Transcription

1 SUPREME COURT OF CANADA File No (ON APPEAL FROM A JUDGMENT OF THE COURT OF APPEAL FOR ONTARIO) BETWEEN: LINDA DALE GIBBONS - and - APPELLANT (Appellant) HER MAJESTY THE QUEEN RESPONDENT (Respondent) FACTUM OF THE APPELLANT, LINDA GIBBONS (Pursuant to rule 42 of the Rules of the Supreme Court of Canada) Mr. Daniel C. Santoro Mr. Nicolas M. Rouleau Suite Dundas Street West Toronto, Ontario M5G 2G8 Ms. Marie-France Major McMillan LLP Suite O Connor Street Ottawa, Ontario K1P 6L2 Tel.: / Fax: / daniel@santorolaw.ca rouleaun@gmail.com Counsel for the Appellant Tel.: Fax: marie-france.major@mcmillan.ca Agent for the Appellant Henri A. Lafortune Inc. Tel.: Fax: lafortune@factum.ca 2005 Limoges Street Longueuil, Québec J4G 1C4 S

2 - 2 - Ms. Susan Magotiaux Mr. Emile Carrington Attorney General of Ontario Crown Law Office, Criminal 10 th Floor 720 Bay Street Toronto, Ontario M5G 2K1 Tel.: Fax: susan.magotiaux@ontario.ca Counsel for the Respondent Mr. Robert E. Houston Burke-Robertson 70 Gloucester Street Ontario, Ottawa K2P 0A2 Tel.: Fax: rhouston@burkerobertson.com Agent for the Respondent

3 - i - TABLE OF CONTENTS FACTUM OF THE APPELLANT, LINDA GIBBONS Page PART I STATEMENT OF FACTS... 1 A. Overview: The Ontario Rules of Civil Procedure supplant the common law mode of proceeding for the breach of specific types of orders... 1 B. The Ontario Court (General Division) issued a temporary injunction in C. Ms. Gibbons was charged criminally in 2008 for breach of the then 14-year old temporary injunction... 3 D. The government could have proceeded under the Ontario Rules of Civil Procedure s contempt of court provisions... 4 E. Decisions of the lower courts... 5 PART II STATEMENT OF ISSUES... 8 PART III STATEMENT OF ARGUMENT... 9 OTHER MODE OF PROCEEDING: When has a government done enough to create an exception to s. 127 of the Criminal Code?... 9 A. Has the government supplanted the common law by drafting into the Ontario Rules of Civil Procedure a new comprehensive mode of proceeding to administrate the breach of orders made in civil proceedings in the Superior Court of Justice and Court of Appeal for Ontario? Section 127 and its exception Why did the inherent common law power of the court to conduct its own affairs not contain an exception to s. 127 in R. v. Clement?... 11

4 - ii - TABLE OF CONTENTS FACTUM OF THE APPELLANT, LINDA GIBBONS Page 3. Why did the Rules of Court of Queen s Bench of Manitoba not contain an exception to s. 127 in R. v. Clement? R. v. Clement provides the following test to assess whether a provision (or series of provisions) contains another mode of proceeding expressly provided by law The Ontario rules of civil procedure expressly provide by law a mode of proceeding The Ontario rules of civil procedure expressly provide by law an other mode of proceeding The Ontario rules of civil procedure expressly provide by law another comprehensive mode of proceeding The Ontario rules of civil procedure provide the legal foundation for a proceeding for contempt of court Provincial rules of civil procedure can provide a mode of proceeding as an exception to s B. Is it the intention of s. 127 Criminal Code to funnel the enforcement of orders through criminal courts or is the intention merely to capture conduct to which no other provision is designed to apply? A court that makes an order is in the best position to enforce that order Criminal courts should only in the rarest and clearest of cases be called upon to enforce administrative orders made by other bodies in the course of their everyday operations Watt J.A. s interpretation treats the same mode of proceeding in different courts differently Rule 60 provides adequate enforcement Conclusion... 35

5 - iii - TABLE OF CONTENTS FACTUM OF THE APPELLANT, LINDA GIBBONS Page PART IV SUBMISSIONS ON COSTS PART V ORDER SOUGHT PART VI ALPHABETICAL TABLE OF AUTHORITIES PART VII STATUTES, REGULATIONS, RULES Criminal code of Canada, R.S.C. 1985, c. C-46, ss. 2, Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules French version... 47

6 - 1 - Statement of Facts FACTUM OF THE APPELLANT, LINDA GIBBONS PART I STATEMENT OF FACTS A. Overview: The Ontario Rules of Civil Procedure supplant the common law mode of proceeding for the breach of specific types of orders 1. Section 127 of the Criminal Code criminalizes the breach of orders where there exists no other mode of proceeding expressly provided by law. This case is about whether the comprehensive mode of proceeding dictated by rule 60.11(1) of the Ontario Rules of Civil Procedure qualifies as an exception to s. 127 of the Criminal Code. 2. In R. v. Clement, this Court ruled that the various discretionary common law modes of proceeding available pursuant to the inherent power of the court to punish for contempt of court did not qualify as express modes of proceeding. These modes of proceeding are not expressly provided through statute law or regulations; they are inherently provided through the common law, and will vary from court to court and circumstance to circumstance. Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at (See Appellant s Book of Authorities hereinafter B.A., Tab 15) 3. In the present case, the Ontario legislator has supplanted the common law modes of proceeding, by expressly providing a new comprehensive mode of proceeding (a motion for contempt ) to address the breach of specific orders made by specific courts. This new comprehensive mode of proceeding does not reiterate the common law, but rather supplants it, redefining the ways in which the Ontario Superior Court can exercise its inherent powers in conformity with s. 96 of the Constitution Act, Thus, it constitutes another express mode of proceeding provided by law. 4. The crown disregards the legislator s new express and comprehensive mode of proceeding. In doing so, the crown brings the breach of as many orders as possible under the purview of criminal courts, removing the application of judicial discretion for widely differing offences (and

7 - 2 - Statement of Facts potentially preventing the court from considering the practical effects of its orders on the public and on the parties). 5. In the present case, the rule 60.11(1) mode of proceeding is expressly provided, it is comprehensive, and it differs from s. 127 (and also differs from the common law). This mode of proceeding provides a non-criminal avenue that brings alive the power of a court to consider the breach its own orders on a case-by-case basis, while nonetheless maintaining the court s ability to impose sanctions of civil or criminal contempt. B. The Ontario Court (General Division) issued a temporary injunction in On 9 April 1993, the Attorney General of Ontario issued a statement of claim in the Ontario Court (General Division) against 18 named people (including Linda Gibbons, then known as Linda Gross or Groce ) as well as John Doe, Jane Doe, and Other Persons Unknown. The Attorney General claimed for an interlocutory and permanent injunction restraining the defendants from picketing within 500 feet of numerous abortion clinics in Toronto. Ref.: Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4 th ) (Ont. Gen. Div.) at 461, 634, and (B.A. Tab 13) 7. At the time, the social climate in Canada surrounding the provision of abortion was extraordinarily heated, perhaps more so than at any other point in Canadian history. The Morgentaler decision had recently been released and the efforts of the Canadian Parliament to pass an abortion bill had been defeated. The court had evidence that mass-picketing and blockades were common occurrence in the late 1980s and early 1990s, and that one Toronto clinic had been bombed in 1992 (although no charges were laid in relation to this bombing). Ref.: Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4 th ) (Ont. Gen. Div.) at 463, (B.A. Tab 16); R. v. Morgentaler, [1988] 1 S.C.R. 30 (B.A. Tab 28).

8 - 3 - Statement of Facts 8. Before the hearing for what would be a lengthy trial, the Attorney General of Ontario advanced a motion to obtain an interim injunctive order against the defendants pending trial or other final disposition of the action. The Attorney General emphasized that, at this point of the proceeding, it merely had to demonstrate that there existed a serious issue to be tried and that irreparable harm would be sustained if the [interlocutory] injunction is not granted. These serious issues would then be more properly canvassed at the trial itself. Ref.: Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4 th ) (Ont. Gen. Div.) at 621 (B.A. Tab 16). 9. On 30 August 1994, after a lengthy hearing, Adams J. of the Ontario Court (General Division) granted the interlocutory injunction, prohibiting anti-abortion picketing within 60 feet of the Scott Clinic. Adams J. referred to the violence and unrest leading up to the Attorney General s statement of claim, and he emphasized that his findings on several portions of the evidence might differ in the course of a trial. Ref.: Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4 th ) (Ont. Gen. Div.) at 727, 729, , 736, 740 (B.A. Tab 16). 10. But the matter was never brought to trial or finally disposed of and, 17 years later, the government still has not pursued its request for a permanent disposition of the matter, instead opting to govern by interim injunction, binding Ms. Gibbons, Jane Doe, and John Doe through Adams J. s order. C. Ms. Gibbons was charged criminally in 2008 for breach of the then 14-year old temporary injunction 11. In 2008, 14 years after Adams J. issued the 1994 interlocutory injunction in the Dieleman case, this injunction still stood though the climate had cooled significantly from the unrest in the early 1990s. On 8 October 2008, Ms. Gibbons was charged with a criminal offence, arising from an act of civil disobedience: displaying a sign within 60 feet of the Scott Clinic contrary to Adams J. s 14-year old injunction. Ms. Gibbons was not charged with any act of violence,

9 - 4 - Statement of Facts intimidation, or mischief in relation to her act of civil disobedience. The police charged her pursuant to s. 127 of the Criminal Code : 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 (1) Quiconque, sans excuse légitime, désobéit à une ordonnance légale donnée par un tribunal judiciaire ou par une personne ou un corps de personnes autorisé par une loi à donner ou décerner l ordonnance, autre qu une ordonnance visant le paiement d argent, est, à moins que la loi ne prévoie expressément une peine ou un autre mode de procédure, coupable : (a) soit d un acte criminel passible d un emprisonnement maximal de deux ans; (b) soit d une infraction punissable sur déclaration de culpabilité par procédure sommaire. Ref.: Information, (See Appellant s Record, hereinafter A.R.., pp. 3 and 4); Criminal Code, R.S.C. 1985, c. C-46, s. 127(1) [emphasis added], infra, p Due to her extensive criminal record for acts of peaceful civil disobedience, Ms. Gibbons, then a 60 year-old grandmother, was ordered detained in pre-trial custody by a justice of the peace until the date of her trial, scheduled to take place three months later. D. The government could have proceeded under the Ontario Rules of Civil Procedure s contempt of court provisions 13. The crown could have brought a motion for contempt against Ms. Gibbons under rule 60.11(1) of the Ontario Rules of Civil Procedure, infra, p. 43. This motion would have placed the then 14-year interim injunction under the careful purview of the Ontario Superior Court of Justice, the court that crafted the injunction. The Superior Court would then have been asked to decide whether Ms. Gibbons act of civil disobedience constituted a breach of the injunction. If guilty the court, equipped with wide discretion, could have dealt appropriately with Ms. Gibbons s unique circumstance. This would have included the ability to sentence Ms. Gibbons to

10 - 5 - Statement of Facts jail for civil or criminal contempt of court. The Superior Court has never, since 1994, been called on to enforce the order of Adams J. 14. The crown, however, has an interest to prevent civil courts from addressing Ms. Gibbons sign-holding. Notwithstanding finding Ms. Gibbons in civil or criminal contempt, the Superior Court could simultaneously have called on the crown for an explanation as to the 17-year delay in moving the matter forward. The court could have varied the terms of its injunction (for example granting protesters a limited right to hold a sign ), or could even have dissolved its interim injunction, possibly giving the government enough time in the interim to move for a permanent injunction (which involves a stricter legal test) or to democratically legislate a bubble-zone around abortion providers, as the Province of British Columbia has done. Ref: Access to Abortion Services Act, R.S.B.C. 1996, c. 1 (B.A. Tab 2). E. Decisions of the lower courts 15. Ms. Gibbons brought an application prior to the hearing of any evidence for an order quashing the Information on the grounds that the Ontario Rules of Civil Procedure provisions for contempt of court expressly provide another mode of proceeding to administrate Ms. Gibbons alleged breach, and thus preclude prosecution under s. 127 of the Criminal Code. 1 Ref.: Judgment of the trial court below: Reasons for Judgment of Moore J.: Transcripts of Proceedings, pp. 3 and 15 (Ont. C.J). (A.R. pp. 46 and 58) Ontario Court of Justice 16. Moore J. of the Ontario Court of Justice concluded that his court a criminal court was not the proper forum to administrate Ms. Gibbons alleged breach. He concluded that the express provisions for contempt of court in the Ontario Rules as to how to deal with a person such as Ms. Gibbons who it is felt is breaching the civil court order constituted another mode of 1 Moore J. of the Ontario Court of Justice had the benefit of written submissions from the appellant and heard oral submissions from the appellant and the crown. Moore J. was also referred to all of the relevant appellate authorities, including the leading decision R. v. Clement from the Supreme Court of Canada.

11 - 6 - Statement of Facts proceeding expressly provided by law. Moore J. added that the Rules of Procedure of a civil court have to be followed and whatever sanctions are going to be imposed would be pursuant to civil proceedings, not criminal proceedings. Moore J. thus declined to hear evidence in the matter, agreed with Ms. Gibbons, and quashed the Information. Ms. Gibbons was released. Ref.: Judgment of the trial court below: Reasons for Judgment of Moore J.: Transcripts of Proceedings, pp (Ont. C.J) (A.R. pp. 5-10). Ontario Superior Court of Justice 17. Frank J. of the Ontario Superior Court of Justice, sitting as a Summary Conviction Appeals judge, set aside the decision of Moore J. and ordered a new trial. She suggested that while rules of civil procedure could furnish the legal foundation for a proceeding for contempt of court, the Ontario Rules did not meet this test. On the other hand, Frank J. admitted that the similar rules of civil procedure in Quebec did meet this test. 2 Ref.: Judgment of the superior court below: Decision of Frank J. (Ont. S.C.J.) at paras (A.R. p. 15). 18. As a result of Frank J. s new trial order, Ms. Gibbons was brought before a Judge of the Ontario Court of Justice on the charge before this Court. Ms. Gibbons refuses to sign any bail order that would require her to agree to the terms of the now 17-year old injunction. After a period of further incarceration, she was released on a summons on June 3, This point will be fleshed out later. It is important to keep in mind that in Quebec, as in Ontario, the law of contempt derives from the common law, and that judges of the superior court in both provinces hold the power to punish for contempt as part of their inherent jurisdiction: C.B.C. v. Quebec Police Comm., [1979] 2 S.C.R. 618 at (B.A. Tab 22); Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R at 1075, (B.A. Tab 23 ).

12 - 7 - Statement of Facts Court of Appeal for Ontario 19. The Court of Appeal for Ontario upheld Frank J. s decision. 3 Writing for the Court, Watt J.A. admitted that the contempt provisions in the Ontario Rules of Civil Procedure specify the procedure to be followed in a proceeding for civil contempt. However, adding a further requirement to the Supreme Court of Canada s R. v. Clement test, Watt J.A. suggested that the Ontario Rules did not qualify as another mode of proceeding because they did not establish the authority to take contempt proceedings. Ref.: Judgment of the Court of Appeal below: R. v. Gibbons, 2010 ONCA 77 at para. 41 (A.R. pp ). 20. The effect of Watt J.A. s additional requirement is to make it impossible for a civil mode of proceeding in a superior court ever to qualify as a s. 127 exception. It is impossible for the legislator to establish the authority of a superior court to take contempt proceedings, since s. 96 of the Constitution Act, 1867 already provides this authority and cannot be displaced. Ref.: Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (B.A. Tab 1); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (B.A. Tab 17) At the Court of Appeal below, Ms. Gibbons sought leave to argue that the prosecution should be stayed as an abuse of process on the grounds that the Attorney General was enforcing an interlocutory injunction it obtained 14 years previous without taking any further measures to bring the suit in which the injunction was obtained to trial. Such an application was before the trial judge in the present case, but was not argued as s. 127 motion was argued first and the Information was quashed. The Court of Appeal denied leave, stating that the arguments should be heard before the trial court. Ms. Gibbons did not request leave to argue this issue in this Court.

13 - 8 - Statement of Issues PART II STATEMENT OF ISSUES 21. This case raises the following two issues : OTHER MODE OF PROCEEDING: When has a government done enough to create an exception to s. 127 of the Criminal Code? A. Has the government supplanted the common law by drafting into the Ontario Rules of Civil Procedure a new comprehensive mode of proceeding to administrate the breach of orders made in civil proceedings in the Superior Court of Justice and Court of Appeal for Ontario? B. Is it the intention of s. 127 Criminal Code to funnel the enforcement of orders through criminal courts or is the intention merely to capture conduct to which no other provision is designed to apply?

14 - 9 - Statement of Argument PART III STATEMENT OF ARGUMENT OTHER MODE OF PROCEEDING: When has a government done enough to create an exception to s. 127 of the Criminal Code? A. Has the government supplanted the common law by drafting into the Ontario Rules of Civil Procedure a new comprehensive mode of proceeding to administrate the breach of orders made in civil proceedings in the Superior Court of Justice and Court of Appeal for Ontario? 22. This case is not about whether the common law modes of proceeding available pursuant to the inherent power of the court qualify as an other mode of proceeding expressly provided by law per s. 127 of the Criminal Code. The R. v. Clement case has made it clear that these common law modes of proceeding do not qualify, as they are too variable and discretionary. This case is about whether the Ontario legislator has created a s. 127 exception and supplanted the common law modes of proceeding in the present case, by expressly providing through rule 60.11(1) a new comprehensive mode of proceeding designed to address the breach of specific orders made by specific courts in specific proceedings. This new comprehensive mode of proceeding does not reiterate the common law, but rather defines the ways in which the Ontario Superior Court can exercise its inherent powers, in conformity with s. 96 of the Constitution Act, Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at (B.A. Tab 15); Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (B.A. Tab 1); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (B.A. Tab 17). 1. Section 127 and its exception 23. In its material parts, s. 127 provides :

15 Statement of Argument 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 127. (1) Quiconque, sans excuse légitime, désobéit à une ordonnance légale donnée par un tribunal judiciaire ou par une personne ou un corps de personnes autorisé par une loi à donner ou décerner l ordonnance, autre qu une ordonnance visant le paiement d argent, est, à moins que la loi ne prévoie expressément une peine ou un autre mode de procédure, coupable [ ] Ref.: Criminal Code, R.S.C. 1985, c. C-46, s. 127(1) [emphasis added], infra, p On its face, the scope of s. 127 is broad. Section 127 covers all orders in criminal and civil proceedings except orders for the payment of money. And it covers orders not only from courts of justice, but also orders from any persons or bodies of persons authorized by any Act to make or give the orders. As such, s. 127 has the potential to criminally address the breach of orders made by : all courts of justice (provincial, superior, and courts of appeal); the [property] Assessment Review Board; the College of Audiologists and Speech-Language Pathologists of Ontario; the Crop Insurance Appeal Board; the College of Teachers; the Ontario Labour Relations Board. Ref : List of Canadian Courts and Administrative Tribunals (B.A. Tab 32). 25. On the other hand, s. 127 can be easily pushed aside. The s. 127 exception provides that as soon as a punishment or other mode of proceeding is expressly provided by law, s. 127 cannot be used. As such, while s. 127 is designed to foster enforcement of all lawful orders of all courts, bodies, and persons, it recognizes that where other clear and express modes of proceeding exist, they must be used instead of the Criminal Code. In this sense, s. 127 of the Criminal Code acts as a basket clause to enforce those orders that cannot be enforced through express modes of proceeding.

16 Statement of Argument 2. Why did the inherent common law power of the court to conduct its own affairs not contain an exception to s. 127 in R. v. Clement? 26. In R. v. Clement, this Court was asked whether the inherent power of the court to conduct its own affairs included an express mode of proceeding that could act as an exception to s Writing for the Court, Estey J. explained that it did not. To administrate the offence of contempt of court, the inherent power of the court relied on the common law modes of proceeding. However, Estey J. found that the common law almost by its nature is not express. And its modes of proceeding are too variable and discretionary in their case by case application to qualify as express modes of proceeding: Such a body of law has developed through the centuries in connection with the conduct of the business of the courts, including procedures for the execution of their orders and the concomitant defiance of their orders. Such inherent power includes the right of the court to determine appropriate punishment at its discretion. It is impossible to construe the general inherent power of a court to conduct its affairs and punish for contempt including the punishment on citation for contempt as including an express common law prescription of a mode of proceeding in connection with this matter. Procedure will vary from court to court and indeed from circumstance to circumstance. The wording adopted in the subsection cannot in my view be stretched to cover, in the term expressly provided, the inherent power at common law in the courts to cite and to punish for contempt. Something inherent almost by its nature is not express. Indeed it is because the power exists as an intrinsic element of court that it need not be expressly provided. Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at 476 [emphasis added] (B.A. Tab 15). 27. The inherent power of the court does not include an "express" common law prescription of a mode of proceeding for contempt of court. Instead, the inherent power of the court includes various modes of proceeding that superior courts can use within their discretion to punish for contempt, namely summary process and indictment. 5 These modes of proceeding are not 4 5 R. v. Clement concerned s. 116 of the Criminal Code, now s The language used in s. 116 was different from the language currently used in s Section 116 referred to some penalty or punishment or other mode of proceeding [emphasis added]. This difference, however, is inconsequential in the present matter (B.A. Tab 15). Traditionally, contempt of court could also be brought by information, but R. v. Cohn (1984), 15 C.C.C. (3d) 150 at 157 (Ont. C.A.) notes that s. 506 of the Criminal Code has abolished this mode of proceeding (B.A. Tab 18).

17 Statement of Argument expressly provided through statute law or regulation; they are inherently provided through the common law, and will vary from court to court and circumstance to circumstance. 28. The R. v. Clement decision creates good law because, to fall under the s. 127 exception, it requires legislation to capture specific conduct under specific modes of proceeding. The common law captures and enforces conduct in a haphazard fashion under various modes of proceedings: First, various modes of proceeding under the inherent common law power of the court might be used to administrate offences of contempt of court. Thus, it cannot be ascertained with certainty which of these modes will be used in any particular case. Second, the various modes of proceeding are also uncertain within themselves. At common law, the presiding justice can decide what specific procedures to follow on a case-by-case basis so long as the procedure respects natural justice. The available procedures run the gamut from instantly citing and convicting for contempt (admittedly rare but available), to a proceeding instituted by a particularized notice of motion resulting in a full trial on the issues according to rules of criminal evidence. Ref.: R. v. Cohn (1984), 15 C.C.C. (3d) 150 (Ont. C.A.) (B.A. Tab 18); R. v. Vermette, [1987] 1 S.C.R. 577 at (B.A. Tab 19). 29. At common law, the judge s options are nowhere expressly provided and circumscribed by law. Even the over-arching requirement to respect natural justice is a common law requirement (now also required by s. 7 of the Charter). The inherent common law power of the court to punish for contempt does not expressly mandate another mode of proceeding. Ref.: R. v. Cohn (1984), 15 C.C.C. (3d) 150 (Ont. C.A.) (B.A. Tab 18); R. v. Vermette, [1987] 1 S.C.R. 577 at (B.A. Tab 19).

18 Statement of Argument 3. Why did the Rules of Court of Queen s Bench of Manitoba not contain an exception to s. 127 in R. v. Clement? 30. In addition to concluding that the inherent common law power of the court does not contain an expressly provided mode of proceeding, in R. v. Clement this Court also concluded that the Manitoba rules as they then existed failed to contain another mode of proceeding. The relevant Manitoba rules then read as follows, in their entirety : 483 A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal. 485 No writ of attachment shall be issued without the leave of the court, to be applied for on notice to the person against whom the attachment is to be issued. 492 Any corporation or individual disobeying a judgment, or guilty of any other contempt of court, may be fined. Such fine may be in lieu of, or in addition to, punishment by attachment, committal, or sequestration. Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at 474 [emphasis added] (B.A. Tab 15). 31. According to this Court, these rules merely provided a brief and imprecise recognition of the continuing inherent power of the Court of Queen s Bench to enforce its own process. Specifically, the procedures of attachment and committal mentioned in rule 483 fall within the summary process mode of proceeding, which is available pursuant to the common law. Rule 483, therefore, simply confirmed that the various discretionary modes of proceeding available according to the common law could still be used to administrate the breach of orders. The rule certainly did not supplant the modes of proceeding available at common law, nor did it provide the legal foundation for a new mode of proceeding. The common law still provided the legal foundation for the wide range of available modes of proceeding in the Manitoba courts. 6 Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at (B.A. Tab 15); McKeown v. The Queen, [1971] S.C.R. 446 at 463 (B.A. Tab 20). 6 Use of the word may in rule 483 also implied that the indictment mode of proceeding was still available. Rule 483, therefore, neither added nor removed anything from the common law.

19 Statement of Argument 4. R. v. Clement provides the following test to assess whether a provision (or series of provisions) contains another mode of proceeding expressly provided by law 32. A plain reading of s. 127 combined with an attentive reading of R. v. Clement reveal the following test for a provision (or series of provisions) to qualify as an exception to s. 127 of the Criminal Code: (i) The provision must expressly provide by law the mode of proceeding (or the punishment); (ii) The provision must provide an other mode of proceeding (or a punishment); (iii) The provision must provide a comprehensive mode of proceeding (or punishment); (iv) The provision must furnish the legal foundation for a proceeding (or punishment) for contempt of court; Ref.: Criminal Code, R.S.C. 1985, c. C-46, s. 127(1), infra, p. 40; R. v. Clement, [1981] 2 S.C.R. 468 at (B.A. Tab 15). 33. Where a provision fulfills the above criteria, it will qualify as an exception to s. 127 of the Criminal Code and s. 127 will not apply. 5. The Ontario rules of civil procedure expressly provide by law a mode of proceeding 34. In R. v. Clement, this court confirmed that rules of civil procedure can in principle provide another mode of proceeding to fulfill the s. 127 Criminal Code exception. This Court held that the phrase expressly provided by law includes statutory law and promulgated regulations such as rules of court. The issue is whether the Ontario Rules of Civil Procedure (infra, p. 43) provide such another mode of proceeding. Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at 477 (B.A. Tab 15).

20 Statement of Argument 35. They do. Rule 60.11(1) of the Ontario Rules of Civil Procedure expressly provides by law a mode of proceeding to address the breach of orders made by the Superior Court of Justice or Court of Appeal for Ontario in civil proceedings. Specifically, this mode of proceeding is a motion for contempt made to a judge in the proceeding in which the order to be enforced was made. Rule 60.11(1) states: Motion for Contempt Order (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made. R.R.O. 1990, Reg. 194, r (1). Ref.: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [emphasis added] (B.A. Tab 3) 36. To determine whether the s. 127 exception applies, the following two-part question can be asked: What modes of proceeding are available where Ms. Gibbons is alleged to have breached the order of Adams J. of the Ontario Superior Court of Justice, made in the course of a civil proceeding? Do these modes of proceeding meet the s. 127 exception? (i) Pursuant to the inherent common law jurisdiction of the court, various modes of proceeding are available. The precise mode of proceeding to be followed is ultimately within the discretion of the presiding judge according to the particular circumstances and facts of each case, drawing on the common law: Procedure will vary from court to court and indeed from circumstance to circumstance. For this reason, this Court stated in R. v. Clement that the modes of proceeding available at common law are not expressly provided. Therefore, the modes of proceeding provided by the inherent common law jurisdiction of the court do not oust the jurisdiction of s (ii) Pursuant to a set of rules such as those examined in R. v. Clement, the various modes of proceeding provided pursuant to the inherent common law jurisdiction of the court are again available. The precise mode of proceeding will once again depend on the

21 Statement of Argument exercise of discretion by the judge and the particular facts of the case. These various modes of proceeding are not expressly provided by law, since they are provided by the inherent common law jurisdiction of the court. Therefore, the modes of proceeding provided by the inherent common law jurisdiction of the court and recognized by the Manitoba rules of the Court of Queen s Bench considered in R. v. Clement do not oust the jurisdiction of s (iii) Pursuant to the current Ontario rule 60.11(1), the crown can proceed only by making a motion before the Ontario Superior Court of Justice to cite Ms. Gibbons for contempt. This rule does not confirm the various discretionary modes of proceeding provided by the inherent common law jurisdiction of the court. The rule rather replaces these modes of proceeding. Now, the presiding judge must proceed under rule 60.11(1) and follow its requirements. To borrow the language in R. v. Clement, the general inherent power of court to conduct its affairs and punish for contempt [now includes] an "express" prescription of mode of proceeding in connection with this matter. This express mode of proceeding is rule 60.11(1), through which the inherent jurisdiction of the court must necessarily be channeled. Therefore, the mode of proceeding provided by rule 60.11(1), which is expressly provided by law, ousts the jurisdiction of s Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at [emphasis added] (B.A. Tab 15). 37. In providing the rule 60.11(1) mode of proceeding, the Ontario legislator has expressly supplanted the variable and discretionary modes of proceeding previously available pursuant to the common law, thereby creating a specific and narrow exception to s In MacMillan Bloedel Ltd. v. Simpson, McLachlin J. (as she then was) observed: Parliament and the legislatures routinely make rules limiting the scope for the exercise of the court s inherent powers In every province Rules of Court limit and define the ways in which superior courts can exercise their inherent powers. 7 Rule 60.11(1) defines the way in which the Ontario Superior Court can exercise its inherent power, by providing a new express legislation-based mode of proceeding to administrate 7 While McLachlin J. s comments were made in dissent, their substance still holds.

22 Statement of Argument the breach of orders made in civil proceedings in the Superior Court of Justice and Court of Appeal for Ontario. Ref.: MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 at para. 79 (B.A. Tab 17). 38. The rule 60.11(1) exception applies only to the breach of orders made in the Superior Court of Justice and Court of Appeal for Ontario. The exception applies only to orders made in civil proceedings. The exception applies only to orders that are not for the payment of money. Finally, the exception is consonant with s. 96 of the Constitution Act, 1867, which guarantees that superior courts of justice will always have the core or inherent jurisdiction to fully control their own process by punishing for all forms of contempt. Ref.: Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (B.A. Tab 1); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (B.A. Tab 17). 39. Section 127 still applies to the breach of many orders made in criminal proceedings by the Superior Court of Justice and Court of Appeal for Ontario. 8 Section 127 also still applies to the breach of many orders made by bodies other than the Superior Court of Justice and Court of Appeal for Ontario for example orders of provincial courts and administrative bodies. 9 This holds true even where the Superior Court of Justice could administrate the breach of these orders pursuant to its inherent jurisdiction. The only way to prevent the application of s. 127 to the breach of orders made by other courts, bodies, or persons would be for the legislator to pass express modes of proceedings meant to administrate the breach of these orders. This is what the Ontario legislator has done in the present case for the orders of the Superior Court of Justice and Court of Appeal for Ontario made in civil proceedings. As a result, the various modes of proceeding that exist pursuant to the common law can no longer be used in the limited instances where rule 60.11(1) applies. 8 9 I.e., where there is no criminal offence specific to the situation. Where, as is commonly the case, no other express punishment or mode of proceeding is provided.

23 Statement of Argument 6. The Ontario rules of civil procedure expressly provide by law an other mode of proceeding 40. Obviously, to fit within the s. 127 exception, the expressly provided mode of proceeding must differ from the s. 127 mode of proceeding. There is no question that the rule 60.11(1) mode of proceeding differs from the s. 127 mode of proceeding: it therefore qualifies as another mode of proceeding. 41. However, two points on the differences between rule 60.11(1) and s. 127 bear mention. First, the Superior Court judge hearing a Rule 60.11(1) motion for contempt will have discretion to make such order as it just in the proceeding. As a judge of the court who issued the order, the discretion here is broad. The criminal court judge, most often a provincial court judge, has no such discretion. Second, in the specific case of an interlocutory order such as the order binding Ms. Gibbons, the judge where faced with a disobedience of the order would have the discretion to dissolve or alter the interlocutory injunction under rule This would be true even if the judge were also to find Ms. Gibbons guilty of contempt of court for breach of the injunction. Both of these points will be more fully discussed under Issue B. 42. Rules 60.11(1) and s. 127 are also similar in one principal respect. Although the rule 60.11(1) mode of proceeding is administrated through civil courts, a judge will nonetheless be able to cite an individual for civil or criminal contempt. In that sense, if necessary, under rule 60.11(1) or s. 127, the full force of the criminal law can be brought to bear on an alleged contemnor. 7. The Ontario rules of civil procedure expressly provide by law another comprehensive mode of proceeding 43. R. v. Clement provides that a mode of proceeding that serves as an exception to s. 127 must be a comprehensive provision dealing with contempt of court such as is obviously contemplated by the exception. The rule 60.11(1) mode of proceeding provided by the Ontario Rules of Civil Procedure is comprehensive. It fully outlines the procedure to be followed to obtain an order for contempt to enforce orders made in civil proceedings by the Superior Court of Justice and Court of Appeal for Ontario.

24 Statement of Argument 44. Rule 60.11(1) establishes the mode of proceeding. Rules and more generally (conjointly with rules 37 and 39, which outline the procedure for motions) set out the additional details on the mode of proceeding to be followed. For examples, the rules set out: a place for the hearing (see rule 37.03); requirements for forms and timelines (see rule 37.10); detailed specifics for the tendering of evidence (see rules 37); a procedure to procure witnesses (see rule 39.03(5), which incorporates rule 53); a provision to issue a warrant for the arrest of the alleged contemnor (see rule 60.11(4); the content of an order that a judge may make (see rule 60.11(5)); specifics as to costs (see rule 60.11(10)); specific remedies available on failure to comply with an interlocutory order (see rule 60.12). Ref.: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (B.A. Tab 3). 45. Certainly, the mode of proceeding draws some of its content from the various and discretionary modes of proceeding available at the common law; much Canadian law draws on the common law. As McLachlin J. (as she then was) stated with respect to criminal law, in United Nurses of Alberta v. Alberta: Definition of elements of codified crimes not infrequently requires recourse to common law concepts: see R. v. Jobidon, [1991] 2 S.C.R. 714, where the majority of this Court, per Gonthier J., noted the important role the common law continues to play in the criminal law. Ref.: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 930 (B.A. Tab 21).

25 Statement of Argument 46. But the common law, in all its uncertainty, is no longer available. Judges cannot use their discretion and draw upon it to determine the proceeding for the breach of these specific orders. In all cases, rule 60.11(1) must be used. While respecting the power of the Ontario Superior Court of Justice to punish for all forms of contempt per s. 96 of the Constitution Act, 1867, rule 60.11(1) comprehensively supplants the various common law modes of proceeding available pursuant to the court s general inherent power. Rule 60.11(1) provides a specific and exclusive mode of proceeding to administrate the breach of orders made by the Superior Court of Justice and Court of Appeal for Ontario in civil proceedings. Ref.: MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (B.A. Tab 17). 8. The Ontario rules of civil procedure provide the legal foundation for a proceeding for contempt of court 47. In R. v. Clement, this Court suggested that an exception to s. 127 of the Criminal Code had to furnish the legal foundation for a proceeding for contempt of court. Here, rule 60.11(1) furnishes the legal foundation for a motion for contempt of court. Ref.: R. v. Clement, [1981] 2 S.C.R. 468 at 475 (B.A. Tab 15). 48. Rules of court can limit and define the ways in which superior courts can exercise their inherent powers, for example by redefining the punishment available for contempt of court in superior courts or by redefining the modes of proceeding available for contempt of court in superior courts. These steps supplant the inherent common law power of the court. Before rule 60.11(1), the inherent common law power of the court furnished the legal foundation for various modes of proceeding for contempt of court. But since its creation, rule 60.11(1) furnishes the legal foundation for a motion for contempt of court. This motion for contempt is a new exclusive mode of proceeding that supplants or redefines the extant proceedings contained within the inherent common law power of the court.

26 Statement of Argument 49. Where did Watt J.A. go wrong in the court below? Watt J.A. believed that [c]ontempt is an "other mode of proceeding" within s. 127(1) of the Criminal Code. He observed that not every "other mode of proceeding" will mobilize the exception in s. 127(1). The source of the "other mode of proceeding" must be "expressly provided by law". Watt J.A. conceded that the Ontario Rules of Civil Procedure did indeed specify the procedure to be followed in a proceeding for civil contempt. However, he believed that the rules failed to meet the s. 127 exception because they do not establish the authority to take contempt proceedings. Despite their elegant details, rules and are as much dependent on the common law for their legal foundation as were the Rules under scrutiny in Clement [emphasis added] (at para. 41). 50. Watt J.A. instilled an additional requirement in the R. v. Clement test. He required rule 60.11(1) not only to provide the legal foundation for a proceeding for contempt (such as a motion for contempt), but also to provide the authority for a court to punish for contempt. 10 According to Watt J.A., if the authority of the court to punish for contempt originates pursuant to the common law, its mode of proceeding cannot be expressly provided by law. Ref.: Judgment of the Court of Appeal below: R. v. Gibbons, 2010 ONCA 77 at para. 39 (A.R. p. 30). 51. This cannot be. The first consequence of Watt J.A. s interpretation is that another mode of proceeding for contempt could never be provided for a superior court of justice in Canada, since superior courts already have the authority to take contempt proceedings as part of their inherent jurisdiction. To require a provision to provide the legal foundation for the authority of a superior court to take contempt proceedings is an impossibility. Section 96 of the Constitution Act, 1867 has already provided this legal foundation. 10 Watt J.A. s position is somewhat ambiguous, as he appears to use interchangeably the terms authority for a court to punish disobedience (e.g., para. 39), authority to take contempt proceedings (e.g., para. 41), and legal foundation for a proceeding for contempt (e.g., para. 41). The first two terms suggest that an exception to s. 127 must provide the authority to punish for contempt, while the third term suggests that s. 127 must only provide the legal foundation for the mode of proceeding to administrate contempt. Only the third term is used in R. v. Clement. The subsequent paragraphs explain why this third term provides the only sensible interpretation of s. 127 (A.R. pp. 5-10).

27 Statement of Argument 52. The second consequence, following the same logic, is that a punishment for contempt could also never be provided for a superior court, since superior courts already have the authority to punish for contempt as part of their inherent power to control their own proceedings. To require a provision to provide the legal foundation for the authority of a superior court to punish for contempt is an impossibility. Section 96 of the Constitution Act, 1867 has already provided this legal foundation. 53. The legislator must always provide the legal foundation for the authority of an other body (such as an inferior court or administrative tribunal) to take contempt proceedings or punish for contempt following the breach of that body s orders. But a rule dealing with the contempt of a superior court order must necessarily subsist in the inherent jurisdiction of a court in order not to violate s. 96 of the Constitution Act, For example, the Quebec Code of Civil Procedure provisions dealing with contempt adopt and rely on the common law offence of contempt: 49. The courts or judges may condemn any person who is guilty of contempt of court. 50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court. 51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding $5,000 or to imprisonment for a period not exceeding one year. Ref.: Code of Civil Procedure, R.S.Q. c. C-25, ss (B.A. Tab 4).

28 Statement of Argument 55. While these provisions do institute the authority to take contempt proceedings and punish for contempt in the Municipal Court of Quebec and the Court of Quebec, they do not, and could not institute an authority to take contempt proceedings and punish for contempt in the Superior Court of Quebec. 11 The Superior Court of Quebec has the authority to take contempt proceedings and punish for contempt as part of its inherent jurisdiction. Ref.: Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (B.A. Tab 1); C.B.C. v. Quebec Police Comm., [1979] 2 S.C.R. 618 at (B.A. Tab 22); Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R at 1075, (B.A. Tab 23); R. v. Vermette, [1987] 1 S.C.R. 577 at (B.A. Tab 19); Hogg, Constitutional Law of Canada, vol. 1, 5 th ed. (Toronto: Carswell, 2007, looseleaf) at pp to 7-43 (B.A. Tab 30). 56. Quebec rule 51 does, however, specify an exclusive punishment (up to $5000 in fine or one year imprisonment). Rule 51 is expressly provided by law, comprehensive, and provides the legal foundation for that punishment (though, as mentioned, not for the authority to punish 12 ). Although the $5000 punishment was previously available at common law for the Superior Court of Quebec to use as part of its inherent jurisdiction, rule 51 now ensures that no other common law punishments can be used in the Superior Court of Quebec (or in the other courts of Quebec). Rule 51 has supplanted the common law and meets the express punishment aspect of the s. 127 exception. 57. Ruling on ss in R. v. Gaudreault, the Court of Appeal for Quebec agreed with this reasoning, holding that these provisions met the s. 127 exception and constituted a punishment or other mode of proceeding. Ref.: R. v. Gaudreault (1995), 105 C.C.C. (3d) 270 (Que. C.A.) at 276 (B.A. Tab 24) The Court of Appeal of Quebec is left out of this discussion, as it appears to be unclear whether a court of appeal has the same inherent jurisdiction as a superior court. Although, to be more specific, it does provide the authority to punish in the Court of Quebec and the Municipal Court of Quebec, but not in the Superior Court.