R. v. Gibbons, 2011 ONCJ 218

COURT FILE No.: Toronto 4817 998 09 70007394 00 DATE: 2011·04·27 Citation: R. v. Gibbons , 2011 ONCJ 218 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LINDA GIBBONS Before Justice Mara Greene Reasons for Judgment on an Application for Abuse of Process released on April 27, 2011 M. Asma .................................................................................................................... for the Crown N. Rouleau & D. Santoro ................................................................ for the accused for Ms. Gibbons GREENE J.: Introduction [ 1 ] Ms.

Gibbons is charged under s.127 of the Criminal Code with disobeying a Court Order. It is alleged that she violated an interim injunction put in place by Adams J. in 1994 in the case of Ontario (Attorney-General) v. Dieleman et al (hereinafter Dieleman). Ms. Gibbons has brought an application to stay the proceedings on the basis that further prosecution of her is an abuse of process. Ms.

Gibbons argues that the prosecution should be barred from enforcing Justice Adams’ Order because the Crown has not only breached its obligation to move the matter forward expeditiously, but the Crown has also excluded, intentionally or negligently, Ms. Gibbons from the civil proceedings. [ 2 ] The Crown argues that the prosecution of Ms. Gibbons does not amount to an abuse of process. It is the position of the Crown prosecuting Ms. Gibbons that the Crowns involved in the civil suit have not breached their duty to act in a fair and proper manner and that their conduct does not amount to an abuse of process.

The Crown further argued that the allegation of abuse by Ms. Gibbons is nothing more than a collateral attack on the civil order. Background [ 3 ] In 1993 the Attorney General initiated an action against a number of parties, including Ms. Gibbons (who was also known as Linda Gross and Linda Groce at the time), requesting an Order prohibiting named persons (Ms. Gibbons included) and unknown persons from engaging in certain protest-related activities outside of abortion clinics, hospitals and named physicians’ residences and offices.

Upon initiating the action, the Attorney General also sought an interlocutory injunction against the named parties that would prohibit the named parties from being within 500 meters of named clinics, hospitals and named persons’ residences and offices. Ms. Gibbons and others vigorously opposed the imposition of the interlocutory injunction. After extensive argument, Adams J. granted the interlocutory injunction in-part and ordered that Ms. Gibbons, her co-defendants and persons unknown were prohibited from being within 60 feet of named abortion clinics while they were open.

They were also prohibited from carrying signs, intimidating persons working or attending the clinics, and protesting within 60 feet of the clinics. The temporary injunction did not prohibit protesting and the carrying of signs outside the 60-foot radius. There was also a prohibition against “approaching a second person closer than 10 feet from where the second person has made it clear that he or she does not wish to receive any communication from the first person” while within a 160-foot radius of the clinic (note a smaller radius was allowed for the Choice in Health Clinic).

There were no other limitations placed on the protesting activities outside of hospitals or any other location except a prohibition from attending at the residences and offices of named persons who worked at the clinics. [ 4 ] Ms. Gibbons is charged with breaching this Court Order. It is alleged that on January 20, 2009, the police attended at the Scott Clinic at the request of the staff of the Scott Clinic. The police reminded Ms. Gibbons of Adams J.’s Order and requested that she comply with the Order. When Ms. Gibbons failed to leave, the police arrested Ms.

Gibbons and charged her with disobeying a Court Order pursuant to

section 127 of the Criminal Code . Ms. Gibbons was brought to the College Park Court House for a show cause hearing and was granted a judicial interim release (which to date she has not signed).

The Status of the Injunction [ 5 ] To date the interim injunction remains in place and no party has taken steps to take the Dieleman matter to trial or to set aside the interim injunction. Having said that, counsel for all parties have continued settlement discussions on a very intermittent basis over the years. In 1995, the parties engaged in mediation with Justice Adams.

In 2001, a case management judge was assigned to the case and a date was set to speak to the matter in court and address the delay in bringing the matter to trial, but all the lawyers involved in the case asked for an adjournment of this date in order to continue settlement discussions. As a result, this date was vacated. There were a number of different meetings with counsel in 2001. Further discussions also took place in 2003 but to no avail.

No information was presented about any meetings or discussions taking place after 2003. [ 6 ] The Crown has conceded that Crown Law-Civil has not taken any steps to move this matter to trial or final settlement. The record indicates that no other party has filed a motion to set aside the injunction; no one has appealed the decision of Justice Adams; and no one has taken any steps to set a date for discoveries or trial. Evidence relevant to whether Ms. Gibbons was represented by counsel [ 7 ] In 1993, when the interim injunction issue was litigated, counsel, Mr.

Jervis, who also acted for a number of other parties, represented Ms Gibbons. [ 8 ] Mr. Jervis testified that immediately after Justice Adams’ issued his ruling, he stopped acting for Ms. Gibbons. According to Mr. Jervis, he had received information that Ms. Gibbons had no intention of complying with Justice Adams’ Order even before Justice Adams released his ruling. As a result, he spoke to Ms. Gibbons and all of his other clients and made it crystal clear to them that he would not be able to represent anyone who breached the interim injunction. It was Mr.

Jervis’ opinion that breaching Justice Adams’ Order would be detrimental to their position at trial, appeal or any settlement discussions. [ 9 ] Shortly after the judgement was given, Mr. Jervis was advised that Ms. Gibbons had in fact breached the Court Order. Mr. Jervis testified that, at that time, he advised Ms. Gibbons that he would no longer be able to represent her. [ 10 ] Mr. Jervis testified that he also telephoned Ms. Goldberg, one of the Assistant Crown Attorneys on the file, and advised her that he was no longer acting for Ms. Gibbons.

He followed up this conversation with a letter dated November 16, 1994. In this letter Mr. Jervis wrote, Further, as I advised Ms Goldberg on September 1, 1994, upon confirmation that Ms Groce had breached the injunction contrary to my specific legal advice and contrary to the agreement of all of the other Defendants to obey both “the letter and spirit” of any order granted, I will move immediately to be removed as solicitor of record for Ms. Groce. Given the confirmation of this information I have only recently received in writing, I will be bringing a motion to be removed from the record as counsel for Ms.

Groce. [ 11 ] According to Mr. Jervis, this letter confirmed his conversation with Ms. Goldberg and served as written notice to the Crown that he was no longer acting for Ms. Gibbons. [ 12 ] Everyone agreed that Mr. Jervis is still counsel of record for Ms. Gibbons and that he has never sought to be removed from the record. [ 13 ] In addressing why he did not file a motion and seek leave of the Court to be removed as solicitor of record for Ms. Gibbons, Mr. Jervis testified that it was common practice to only formally be removed from the record if something substantive took place.

As the matter never progressed, he felt it was unnecessary to attend court to be removed from the record. He further explained, that he had told all the lawyers involved in the case, as well as Ms. Gibbons, that he was no longer acting for her and to his mind, this was sufficient. [ 14 ] Ms. Price, who was one of the lawyers at Crown Law-Civil on the Dieleman case in 1994, testified at Ms. Gibbons’ trial. Ms. Price testified that she could not recall receiving the November 16, 1994 letter mentioned above, but, it was her opinion that receiving this letter, by itself, would not have led her to conclude that Mr.

Jervis was no longer acting for Ms. Gibbons. Ms. Price testified that, in her experience, conflicts could arise between a lawyer and client one day and resolve a short time later. The November 16, 1994 letter, if not followed by a further notice to be removed from the record or a clear indication that he was now no longer acting for Ms. Gibbons, would not have led Ms. Price to conclude that Mr. Jervis was no longer acting on Ms. Gibbons’ behalf. [ 15 ] Ms. Price further testified that it was her view that Mr. Jervis continued to act for Ms.

Gibbons as long as she was working at Crown Law-Civil and had any involvement in the Dieleman file. [ 16 ] In 1995, the Deileman matter proceeded to mediation with Justice Adams. Mr. Jervis attended this mediation. Mr. Jervis testified that he was no longer counsel for Ms. Gibbons at this time and did not act in her interest at the mediation. Mr. Jervis had no specific recollection of advising or not advising Justice Adams that he no longer acted for Ms. Gibbons. Mr. Jervis testified that this was not required, as he had already told the Crowns on the case that he did not act for her. [ 17 ] Ms.

Price testified that during the mediation in 1995, she assumed that Mr. Jervis was still acting for Ms. Gibbons. Having not received any further communication or a notice to be removed from the record, it was her position that Mr. Jervis was still counsel. Ms. Price took no steps during this mediation to confirm whether or not Mr. Jervis was still acting for Ms. Gibbons. Like Mr. Jervis, she too felt that it was unnecessary to explore the state of his retainer with Ms. Gibbons, as it was clear to her that Mr. Jervis was still on record.

[ 18 ] There was also an in-court application for costs in the Dieleman matter in 1995. Again, Mr. Jervis attended and Ms. Gibbons was a named party in the proceedings; but despite still being on the record, Mr. Jervis took the position at the hearing before me that he was not counsel for Ms. Gibbons and all the parties were aware of this fact. He further testified that he did not need to be removed from the record at this time, as her interests were not affected by this motion. Ms. Price testified that it was her understanding that Mr. Jervis was still counsel for Ms.

Gibbons during the motion for costs. [ 19 ] In 2001, the Dieleman matter was placed on the call over list. The Court was attempting to follow up on cases that appeared to be languishing. As a result of being placed on the call over list, lawyers from the Crown Law-Civil office contacted all counsel and started new settlement discussions. Mr. Jervis testified that during the discussions in 2001, he would not have told anyone that he was still counsel for Ms. Gibbons as he was not acting for her, and had not been her lawyer since 1994. Mr.

Jervis testified that he also would not have bothered to repeat to everyone that he was not her counsel, as this was already a well-known fact. [ 20 ] Mr. Marshall, who took over the file in 2001, testified that during his settlement discussions in 2001 with counsel, it was his belief that Mr. Jervis was still on record and acting for Ms. Gibbons. No one had advised him to the contrary and he was still counsel on record with the Court. Mr. Marshall testified that had Mr. Jervis stopped acting for Ms.

Gibbons, he ought to have taken steps to be removed from the record, as the rules demand this. [ 21 ] As a result of ongoing settlement discussions between the different lawyers involved in the Dieleman case, all parties agreed to adjourn the appearance date on the call over list. With the consent of all the lawyers, Mr. Marshall wrote a letter to Justice Blair, who was case managing this brief, advising that all parties wanted to vacate the court date. Mr. Marshall testified that when he wrote this letter, he was under the impression that Mr. Jervis was counsel for Ms.

Gibbons and that she had agreed, through counsel, to vacate these dates. It is clear from the letter that Mr. Marshall sent a copy of this letter to all the lawyers involved in the case but did not send one to Ms. Gibbons. [ 22 ] In 2003, there was another meeting with all the lawyers. At this meeting, Mr. Jervis advised counsel that he was no longer acting for Ms. Gibbons and that he would seek to be removed as counsel of record. Mr. Marshall told Mr. Jervis that he had to file an application to be removed from the record and that he should do so. To date, Mr.

Jervis has not been removed as counsel of record in the civil case. Mr. Jervis testified that it is common practice not to take formal steps to be removed from the record if no steps were being taken to advance the litigation. Reason for delay in setting a trial date in the Dieleman case [ 23 ] No direct evidence was presented at the hearing to explain why the temporary injunction imposed by Justice Adams has remained in effect for seventeen years. There was also no direct evidence on why the Crown has not taken steps to move this matter forward expeditiously.

The absence of evidence lies mostly with the fact that much of the answer to this question is protected by solicitor client privilege or settlement privilege. [ 24 ] Having said that, both Mr. Jervis and Mr. Marshall provided some evidence to explain the delay; Mr. Jervis, when asked about why he failed to file a motion and be removed as counsel of record, explained that at the end of 1994 everyone was exhausted from the extensive litigation surrounding the interim order and that money was short so the matter went into “limbo” for a while. [ 25 ] Mr.

Marshall also shed some light on why this matter stalled in 2001. Mr. Marshall testified that in 2001 an attempt was made by all parties to settle the Dieleman matter. He testified that the impression he had from all parties was that the original hearing was costly and time consuming and that the parties were not rushing to face this kind of expense again. Issues [ 26 ] The sole issue on this motion is whether the Crown conduct in prosecuting Ms. Gibbons for breaching Justice Adams’ Order is an abuse of process. The sub-issues raised on this motion include:

a) Did the Crown, intentionally, exclude Ms. Gibbons from mediation discussion and settlement discussions?

b) Did the Crown, through either malice or negligence, mislead the case management Judge assigned to the Dieleman matter into believing that Ms. Gibbons consented to the Dieleman matter being adjourned?

c) Has the Crown been negligent by failing to act expeditiously in bringing the Dieleman matter to trial?

d) If I answer yes to any of the above, does the conduct of the Crown amount to an abuse of process.

e) Is the Applicant barred from bringing this Application, as it is nothing more than a collateral attack on Justice Adams’ Order?

a) Did the Assistant Crown Attorney’s intentionally or negligently exclude Ms.Gibbons from mediation and settlement discussions? [27] Mr. Jervis, who was counsel for Ms. Gibbons in 1994, testified that he stopped acting for Ms. Gibbons shortly afterJustice Adams issued his judgment and that he verbally conveyed this to Ms. Goldberg and conveyed this to the other Crowns in writingon November 16, 1994. The letter dated November 16, 1994, confirms that Mr. Jervis formed the intention to stop representing Ms.Gibbons and that he expressed this intention to Ms. Goldberg.

In my opinion, this letter does not, however, confirm that Mr. Jervis hadstopped acting for Ms. Gibbons. I accept Ms. Price’s evidence that she:

a) has no memory of receiving this letter (although I accept thatit was in fact sent and received by her office) and

b) that this letter would not have caused her to believe that Mr. Jervis was no longeracting for Ms. Gibbons. [28] Ms. Price conceded that at the subsequent proceedings, including the costs application and the mediation in 1995, she didnot take steps to clarify with Mr. Jervis the status of his retainer with Ms. Gibbons. Nor did Mr. Jervis alert Crown counsel to the factthat he was not acting for Ms. Gibbons, despite her obvious absence from the mediation discussions and correspondence. While I acceptthat Mr. Jervis is of the view that he had no obligation to remind the Crown that he was not acting for Ms.

Gibbons, it is my view that theCrown’s misunderstanding with respect to Mr. Jervis’ retainer would have been patently obvious from the fact that no one ever tooksteps to include her. I accept Ms. Price’s evidence that during her involvement in the case, she thought that Mr. Jervis was still actingfor Ms. Gibbons. However, in light of the letter she received from Mr. Jervis in November 1994, it would have been more prudent forMs. Price to have taken steps to clarify with Mr. Jervis the state of his retainer. While both sides should have been more prudent inclarifying the status of Mr. Jervis’ relationship with Ms.

Gibbons, given Mr. Jervis’ lack of clarity I am unable to conclude that theCrown was negligent in excluding Ms. Gibbons from meetings and settlement discussion; nor can I conclude that the Crownintentionally excluded Ms. Gibbons.

b) Did the Assistant Crown Attorneys involved in the Dieleman matter, either bynegligence or by malice, mislead the case management Judge in 2001? [29] Mr. Marshall took over the Dieleman brief for the Crown in 2001. After speaking to all counsel, he advised Justice Blair,who was case managing the file, that all parties agreed to vacate the call over date. I am satisfied from Mr. Marshall’s evidence, whoseevidence I completely accept, that he thought Mr. Jervis spoke on behalf of Ms. Gibbons when he wrote this letter. There was no reasonfrom viewing the file, including the letter from November 16, 1994, for Mr.

Marshall to conclude that Mr. Jervis was no longer actingfor Ms. Gibbons. Mr. Jervis had not sought to be removed as counsel of record, was still attending meetings and did not address theissue of his relationship with Ms. Gibbons at the meetings. [30] Counsel for Ms. Gibbons appeared to accept that Mr. Marshall honestly believed that Mr. Jervis was counsel for Ms.Gibbons in 2001. Instead they argued that Ms. Price and Ms. Goldberg were negligent in failing to advise Mr. Marshall that Mr. Jerviswas no longer acting for Ms. Gibbons. I disagree. Having found that Ms.

Price legitimately and honestly believed that Mr. Jervis stillacted for Ms. Gibbons, she could not have told Mr. Marshall otherwise. I accept the evidence of Ms. Price, Ms. Di Ciano and Mr.Marshall that they all believed that Mr. Jervis was acting for Ms. Gibbons at all the relevant times already addressed.

c) Has the Crown’s office been negligent in failing to move the Dieleman matter totrial? [31] There is no dispute that the Crown has failed, over the past seventeen years, to bring the Dieleman matter to trial. Thisfailure arguably runs contrary to the general rule that the party who obtains an interim injunction must move expeditiously in taking thecase to trial. Clearly, the Crown has not proceeded expeditiously in the Dieleman case. At a minimum, it appears that the case has beencompletely dormant since 2003 and arguably a lot longer.

While there have been a few settlement discussions between 1994 and 2003,sadly, very little has been done. [32] The Crown has chosen to call no evidence to explain their failure to move this matter to trial, however, there was someevidence that suggested that all the parties, at least as known to the Crown at the time, were content with the pace of litigation. Whiledelay in moving a matter to trial provides a basis for a civil court justice to set aside an interim injunction, other relevant factors includewhether the opposing party has been content with the pace of litigation.

d) Does the conduct of the Crown amount to an abuse of process? [33] Trial judges have discretion to stay proceedings for an abuse of process where compelling an accused person to stand trialwould violate the fundamental principles that underlie the community’s sense of fair play and decency and to prevent an abuse of thecourt’s process through oppressive and vexatious proceedings (R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 at 135). [34] There are two categories of abuse of process. The first category relates to trial process and fair trial rights. The Applicantdoes not allege any trial fairness issues.

Instead, the Applicant relies on the second category. This second category of abuse of processaddresses “the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner asto connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the

integrity of the judicial process” (See R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 at para 70 and R. v. Regan, [2002]S.C.C. 12 at para 49). [35] Having found that the Crown did not, intentionally or negligently, exclude Ms. Gibbons from settlement discussions, therelevant Crown conduct on the abuse application is the Crown’s failure to move the Dieleman matter forward expeditiously. Ms.Gibbons’ counsel argued that the Crown should not be able to prosecute Ms.

Gibbons for breaching an Order that only remains inexistence today because of the negligence of the Crown’s office and their failure to comply with their duty to act diligently on interiminjunction cases. [36] In my view, while I find it troubling that the Crown’s office has not acted diligently and expeditiously in the Dielemanmatter – in that an interim injunction remains in force seventeen years later – the prosecution of Ms. Gibbons does not amount to anabuse of process. [37] Firstly, I am unable to conclude that the Crown is intentionally delaying the Dieleman matter.

It appears that all parties,at least as was known to the Crown at the time, have been content with the pace of litigation. [38] Secondly, I am unable to conclude that Crown prosecuting Ms. Gibbons is doing so knowing that his colleagues in theCrown Law-Civil office are acting maliciously in delaying the Dieleman case. From the evidence presented at the hearing, the delayseems to be by agreement of all parties. [39] Thirdly, I am also unable to conclude that the Crown is proceeding with a prosecution with the knowledge that were theOrder reconsidered by the Superior Court today, it would be set aside.

I am not convinced that the delay in the Dieleman case alone issufficient to warrant setting aside Justice Adams’ Order. While I appreciate that the case law establishes that there is a burden on a partythat receives an interlocutory injunction to move expeditiously (see Ciba-Giegy Ltd. v. Noveopharm Ltd., (FC), [1997]F.C.J. No. 1836 (F.C.T.D.) at para. 22, MacKay J., citing Hoffman J. from Newsgroup Newspapers Limited v. The Mirror GroupNewspapers

(1986) Limited), the case law also establishes that inaction by the defendants is also a relevant factor to consider whenassessing the validity of an temporary injunction (see Business Depot Ltd. v. Canadian Office Depot Inc., (FC),[2000] F.C.J. No. 63 aff’d by the Federal Court of Appeal at [2000] F.C.J. No. 1405; Jack Digital Productions Inc. v. Comex ForeignExchange Inc., [2007] O.J. No. 3994.). In the case at bar, no one has taken any step to move this matter forward.

Given the state of thelaw on setting aside temporary injunctions, I am unable to conclude that the Assistant Crown Attorneys involved in the Dieleman matterare acting negligently; nor am I am able to conclude that the Crown’s office is prosecuting Ms. Gibbons for breaching an Order theyknow only exists because of Crown negligence. [40] Given the facts of this particular case, I am unable to conclude that the lack of diligence in the Crown Law-Civil office inthe management of the Dieleman file acts as a bar to the prosecution of Ms. Gibbons for breaching the Order in the Dieleman case.

While I am troubled by the fact that no one has seen fit to move this matter forward, I am not satisfied that the prosecution of Ms.Gibbons amounts to an abuse of process. [41] I do note, however, that the Crown is now on notice that Ms. Gibbons is no longer represented by counsel in theDieleman case, that she is not content with the pace of litigation, and that she wants an expeditious final resolution to this matter. Moreover, I must indicate that I am somewhat troubled by the laissez fair attitude of the Crown in relation to this matter.

The interiminjunction received in 1994 binds not only the named parties but all other persons. While Justice Adams went to great length to balancethe competing interests and reach a fair and just resolution, his Order was meant to be a temporary Order. His Order has an impact onfree speech and the ability of persons residing in Ontario to protest. These are not frivolous rights that can be treated with a laissez fairattitude. These are fundamental rights that deserve final resolution. In my view, in light of the broad interests at stake, it is verytroubling that this matter has sat dormant for so long.

e) Is the Applicant barred from arguing Abuse of Process because of the CollateralAttack Rule? [42] The collateral attack rule essentially prohibits any trial judge from considering the validity of the underlying order in anycase where the substance of the allegation involves a breach of the court order. In R. v.

Wilson (1983), (SCC), 9 C.C.C.(3d) 97 (S.C.C.), the Supreme Court of Canada described a collateral attack as “an attack on a judicial order made in proceedings otherthan those whose specific object is the reversal, variation, or nullification of the order or judgment”. [43] The Supreme Court of Canada explained the reason behind the collateral attack rule in Canada (Human RightsCommission) v. Taylor, (SCC), [1990] S.C.J. No. 129 at para 90: The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he mayconsider it or how flawed it may, in fact, be.

Public order demands that it be negated by due process of the law, not by disobedience. [44] The collateral attack rule is so deeply entrenched in the Canadian criminal justice system that the courts have even heldthat the constitutionality of an underlying Order is not relevant to the charge of breaching a Court Order. In Canada (Human RightsCommission) v. Canada Liberty Net, (SCC), [1998] 1 S.C.R. 626 at para 51, McLachlin C.J.C. stated: If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind.

Thecitizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them. [45] Similar sentiments were expressed by Doherty J. in R. v. Domm (1996), (ON CA), 111 C.C.C. (3d)449 (O.C.A.) at para 22:

Nor does giving the challenge to the validity of a court order a constitutional flavour open the door to collateral attack on such orders. Even orders that are constitutionally unsound must be complied with unless set aside in a proceeding taken for that purpose. [46] Furthermore, in Canada (Canadian Human Rights Commission) v.

Taylor, supra, McLachlin J., writing for the minorityof the Court, found that despite the fact that in her view the Order in question was unconstitutional, this was not a defence to theallegation of breaching the Court Order. [47] Crown counsel argued that the Applicant, in bringing an abuse of process application, is asking the Court to look behindthe original Order and speculate as to whether the Order would be set aside for delay and as such, this is nothing more than a collateralattack on the Order. In making this argument, the Crown relied on the B.C. (A.G.) v.

Perry Ridge Water Users Assn., [1998] B.C.C.J.No. 350 (SCJ). In that case, an interim injunction had been granted on an ex parte basis. The injunction was eventually set asidebecause the Court determined that the Crown, in applying for the Order, provided misleading and incomplete information to the Court. Prior to the setting aside of the Order, the accused in that case, violated the injunction and were charged with contempt.

At trial, theaccused argued that “what the Attorney General did in obtaining an injunction on incomplete information was such an abuse that topunish those in contempt of that order would be more harmful to the appearance of justice than to forbear”. (B.C. (A.G.) v. Perry Ridge,supra, at para 18). [48] This argument was rejected by the Court. The trial Judged in finding that the accuseds were in fact in contempt of theOrder stated as follows: [19] I do not think so.

While I have been at pains, in my limited role as the judge before whom the orders have come for enforcement, toarticulate the workings of due process in an appropriate forum, I am not confronted here with an either/or proposition. There is extant anaction within which issues respecting the injunction may be resolved. The activities of the contemners reflect an election to step outsidethat process altogether and to recast their dispute with the Ministry of Forests as a dispute with the court. This Court, in thecircumstances, is bound by its responsibility to uphold its authority and the rule of law.

Whatever the contemners frustrations may bewith legislative processes, they cannot be with the court, which has demonstrably, when called upon to do so, afforded them audienceand where appropriate, redress. These contemners can have no quarrel with a legal system they have chosen to ignore. (Appeal toB.C.C.A. dismissed R. v. Clark 2001 BCCA 706 , [2001] B.C.J. No. 2555). [49] Counsel for Ms.

Gibbons argued that the case at bar can be distinguished from the collateral attack cases because theattack is not on the validity of the Order per se, but on the Crown for prosecuting a breach of an Order that only exists because of Crownmisconduct. They argued that in the collateral attack cases, the Crowns prosecuting the breaches of Court Orders were of the opinionthat the Orders were valid and constitutional. In the case at bar, counsel for Ms.

Gibbons argue that the prosecuting Crown is aware thatthe Crown’s office handling the Dieleman file have breached their legal duty to move expeditiously and are also aware that were theOrder to come under scrutiny, it would fail. [50] In light of the legal principles articulated above, it is difficult to conclude that the abuse of process motion raised by Ms.Gibbons is anything but a collateral attack on the Court Order.

First of all, given the record before me at this hearing, I am unable toconclude that the prosecuting Crown knows that Justice Adams’ Order would be set aside if a motion to that effect was filed in Court.Secondly, since the argument, as put forward by counsel for Ms. Gibbons, requires me to make a finding that Justice Adams’ Orderwould be set aside if questioned, it really is nothing more than a collateral attack on the original Order. [51] In my view, Ms. Gibbons is in much the same position as the accused persons in the Perry Ridge case. Ms. Gibbons haschosen to ignore the legal system and take her own action.

It was, and still is, open to Ms. Gibbons to bring an application in civil courtto set aside the temporary injunction; having failed to bring such an application, she cannot now argue that the prosecution under s.127of the Criminal Code is abusive because she would have been successful in setting aside the Order had she tried. In my view, theallegation of abuse is still nothing more than a collateral attack on the Order. [52] Counsel for Ms.

Gibbons further argued, in the alternative, that the collateral attack rule should not apply in the case atbar because the interests of justice are not served by strict adherence to it. It is open to a trial judge to consider a defence that wouldotherwise amount to a collateral attack where “the interests underlying the rule are not served by adherence to it in these circumstances,or that the remedial component of the rule of law demands an exception to the rule against collateral attack” (See R. v. Domm, Supra, atpara 30). [53] Respectfully, I disagree. Had the evidence before me established that Ms.

Gibbons was intentionally excluded from thelitigation or that Ms. Gibbons had no other mode of redress against the Order, then there might be some merit to this argument. However, Ms. Gibbons does have options. She can bring an application to have the Order set aside for delay. In my view, this is not acase to resort to the rare exceptions to the collateral attack rule. Conclusion [54] On the record before me, I find that the prosecution of Ms. Gibbons does not amount to an abuse of process. TheApplication is dismissed. Released: April 27, 2011 _______________________

Justice Mara Greene