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 an indictable offence and liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction.
– Criminal Code of Canada, section 127 (1)
The 2012 Supreme Court of Canada case of R. v. Gibbons, http://canlii.ca/t/frmhd asked what law enforcement and the legal system should do with Linda Gibbons, a quiet but persistent abortion protester. Is her disobedience of court orders a matter for the criminal law or the common law?
Does the excessive incarceration of devout, conscience-bound individuals such as Gibbons beyond what some murderers and bank robbers serve for sentences bring the administration of justice into disrepute?Linda Gibbons was born in Whitehorse, Yukon almost 70 years ago. She moved to Toronto where she picketed abortion clinics. In 1994, the Ontario Court issued an injunction prohibiting Gibbons from displaying protest signs within 60 feet of certain abortion clinics. A devout Christian, she quietly prays and protests inside that bubble. She is a peaceful protester who holds a sign and occasionally asks patrons of the abortion clinics to think twice about the abortion. For those principles, and after numerous arrests, she has served a total of some 11 years in jail.
In 2008, Gibbons was charged under section 127 of the Criminal Code for breaching the 1994 civil injunction to not protest inside the bubble. The Criminal Code makes it an offence to disobey a court order. The question on an appeal in 2012 was whether section 127 of the Criminal Code or the Ontario Rules of Civil Procedure applied to contempt of court orders. Another way of understanding this is that the Supreme Court of Canada needed to determine whether Gibbons should be dealt with by private or common law or by the more serious criminal law.
The Supreme Court of Canada Decision
Eight of the nine judges in the top court concluded that the Ontario procedural rules regarding contempt of court did not over-ride or displace section 127 of the Criminal Code. Accordingly, the criminal charge could proceed. Quiet protest anywhere within the 60 foot cordon could be prosecuted as a crime. This result followed the decision in a 1981 case called Clement, which made it far more serious for peaceful protesters to ignore injunctions because those violations might be prosecuted as criminal offences.
As a result of the Supreme Court of Canada decision which was issued on June 8, 2012, a criminal trial was set for the fall of 2013. On September 11, 2013, Gibbons was sentenced to six months in prison. Less time served, she had to serve 29 more days. She was released on October 10, 2013.
This case raises important social and legal issues. Should a non-violent anti-abortion protester have the full force of the criminal law power of detention applied against her? Hardened criminals serve much less time for committing serious crimes than Gibbons has served for her peaceful protests.
What about her freedoms of expression, conscience and religion in the Charter of Rights? How can a private abortion clinic enlist the formidable powers of the provincial Attorney General’s department to protect what is a private business? If other private businesses face protesters, they have to deal with that themselves or hire private security.
The Gibbons case before the Supreme Court of Canada appeared to be approached and answered on technical statutory interpretation grounds. In Canada, there are other chronic offenders of laws, some by intentional protest such as Gibbons and others perhaps less intentionally. The question arises as to what to do with these offenders who are not violent and for whom years in jail seems cruel.
Hardened criminals serve much less time for committing serious crimes than Gibbons has served for her peaceful protests.
Is there something morally wrong with repeatedly sending Gibbons to jail for her simple protests and technical breaches of the injunction based on her deeply-held religious views, especially where her constitutional freedoms of expression, religion and conscience have not been explored? Criminal law follows the venerable limiting principles of proportionality and global reasonableness in sentencing. Does the excessive incarceration of devout, conscience-bound individuals such as Gibbons beyond what some murderers and bank robbers serve for sentences bring the administration of justice into disrepute? Is the legal system so blunt an instrument that it cannot handle the Gibbons problem differently?
Can Gibbons and others with strong Christian convictions be made to suffer jail so long at the hands of the state in the modern era? That sounds more like something that would have happened in Charles Dickens’ day.