New & Notable: Defining section 127

Linda Gibbons is a staunch anti-abortionist. On October 8, 2008 she was protesting with a sign outside an abortion clinic. This protest was in contravention of an interlocutory injunction issued in 1994 by Adams J barring such protests within a certain distance of abortion clinics. Gibbons was charged with breaching a court order under section 127 Criminal Code. She sought to quash the information arguing that section 127 had no application as the Ontario Rules 60.11 and 60.12 were a “punishment or other mode of proceeding”.  Her motion was dismissed, a decision upheld by the Supreme Court: 2012 SCC 28.


Section 127 criminalizes a breach of a court order and applies to such conduct “unless a punishment or other mode of proceedings is expressly provided by law”. Gibbons argued that Rules 60.11 and 60.12 of the Rules of Civil Procedure provided for that other mode of proceeding and accordingly section 127 was not applicable.


Referring to R v Clement, 1981 CanLII 212 (SCC), Deschamps J (for the majority – Fish J dissenting) offered the following analysis of that issues as it flowed from Clement:


On the basis of Clement, however, neither the specificity of the punishment nor the comprehensiveness of the procedure is determinative of whether a law satisfies the conditions for ousting the application of s. 127 of the Cr. C. Rather, the determination must be based on a conclusion that Parliament or the legislature intended to limit the application of s. 127 by creating an express alternative statutory response to acts amounting to contempt of court. The exception in s. 127 will be triggered where Parliament or a legislature has provided a legal foundation for the court’s power to issue contempt orders, defined the circumstances in which a person will be found in contempt, and provided a specific punishment or mode of proceeding. Section 545 of the Criminal Code, to which this Court referred in Clement, is one example of such a provision [para 8].


Turning to the issue of whether Rules 60.11 and 60.12 bar the application of section 127, Deschamps J concluded as follows:


The Ontario Rules do not define contempt or specify the circumstances in which a person will be found in contempt. A judge must thus rely on the “common law substratum” in issuing an order for contempt under Rule 60.11. Nor do the Ontario Rules establish the legal foundation for a contempt proceeding. They simply circumscribe, in the same way as the Manitoba Rules in Clement, the judge’s power to make orders on finding a person in contempt.


The common law must also be relied on in deciding on the offender’s punishment. Rule 60.11(5) lays down no maximum terms of imprisonment, fines or costs, and it leaves the judge with a great deal of discretion. Rules 60.11 and 60.12 set out in considerable detail the procedure to be followed on a motion for a contempt order, but in light of the Court’s reasoning in Clement, procedure alone is insufficient to trigger the exception in s. 127 [paras 14-15].