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Criminal law — Offences — Disobeying order of court — Criminal charge laid for disobeying superior court order in civil matter — Criminal Code provision making it criminal offence to disobey court order unless “a punishment or other mode of proceeding is expressly provided by law” — Rules of Civil Procedure providing for contempt procedures — Whether exception to Criminal Code provision applies — Criminal Code, R.S.C. 1985, c. C-46, s. 127 — Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 60.11, 60.12 The appellant was charged under s. 127(1) of the Criminal Code with disobeying a court order, granted in 1994, that enjoined her and others from displaying protest signs in the vicinity of specific abortion clinics. She brought a pre-trial motion to quash the information on the ground that the exception in s. 127(1) applied because Ontario Rules 60.11 and 60.12 precluded the application of s. 127(1). The courts below held that they did not. Held: (Fish J. dissenting) The appeal should be dismissed. Per The Chief Justice, LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. 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. On the basis of R. v. Clement, 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 fact that rules of court provide for punishment or a mode of proceeding is also not sufficient to trigger the exception if the order was issued pursuant to the court’s inherent common law power. 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. Further, the Ontario Rules do not establish the legal foundation for a contempt proceeding, but simply circumscribe 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. As a result, while Rules 60.11 and 60.12 set out in considerable detail the procedure to be followed on a motion for a contempt order, in light of the Court’s reasoning in Clement, procedure alone is insufficient to trigger the exception in s. 127. Per Fish J. (dissenting): Rule 60.11(1), authorized by statute, provides a legislative foundation for the enforcement of court orders. It sets out in detail a complete procedural framework for the obtaining, the making and the enforcement of the orders it expressly contemplates. The power to make and enforce the order flows from the promulgation of the rule and not from the inherent common law powers of superior courts. The same is true of the sanctions: They are expressly set out in the relevant rules and neither is dependent on, nor circumscribed by, the common law relating to disobedience of court orders. Manifestly, this legislative scheme is not at all analogous to the rules considered in Clement. Rules 60.11 and 60.12 do not merely recognize or preserve the common law. On the contrary, they go beyond the common law and create an express mode of proceeding that carries with it express judicial powers. The exception in s. 127 of the Criminal Code does not require more.

English: Poster for the play Contempt of Court...

English: Poster for the play Contempt of Court by Dion Boucicault (Photo credit: Wikipedia)

 

SUPREME COURT OF CANADA

 

CITATION: R. v. Gibbons, 2012 SCC 28 DATE: 20120608

DOCKET: 33813

 

BETWEEN:

Linda Dale Gibbons

Appellant

and

Her Majesty the Queen

Respondent

 

 

 

CORAM: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

 

REASONS FOR JUDGMENT:

(paras. 1 to 16)

 

 

DISSENTING REASONS:

(paras. 17 to 39)

Deschamps J. (McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)

 

Fish J.

 

NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

 

 

 

 

 

R. v. GIBBONS

Linda Dale Gibbons                                                                                         Appellant

v.

Her Majesty the Queen                                                                                Respondent

Indexed as:  R. v. Gibbons

2012 SCC 28

File No.:  33813.

2011:  December 14; 2012:  June 8.

Present:  McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law — Offences — Disobeying order of court — Criminal charge laid for disobeying superior court order in civil matter — Criminal Code provision making it criminal offence to disobey court order unless “a punishment or other mode of proceeding is expressly provided by law” — Rules of Civil Procedure providing for contempt procedures — Whether exception to Criminal Code provision applies — Criminal Code, R.S.C. 1985, c. C-46s. 127 — Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 60.11, 60.12

The appellant was charged under s. 127(1) of the Criminal Code with disobeying a court order, granted in 1994, that enjoined her and others from displaying protest signs in the vicinity of specific abortion clinics.  She brought a pre-trial motion to quash the information on the ground that the exception in s. 127(1) applied because Ontario Rules 60.11 and 60.12 precluded the application of s. 127(1).  The courts below held that they did not.

                    Held:  (Fish J. dissenting) The appeal should be dismissed.

                    Per The Chief Justice, LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.  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.  On the basis of R. v. Clement, 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 fact that rules of court provide for punishment or a mode of proceeding is also not sufficient to trigger the exception if the order was issued pursuant to the court’s inherent common law power.  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.  Further, the Ontario Rules do not establish the legal foundation for a contempt proceeding, but simply circumscribe 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.  As a result, while Rules 60.11 and 60.12 set out in considerable detail the procedure to be followed on a motion for a contempt order, in light of the Court’s reasoning in Clement, procedure alone is insufficient to trigger the exception in s. 127.

                    Per Fish J. (dissenting):  Rule 60.11(1), authorized by statute, provides a legislative foundation for the enforcement of court orders.  It sets out in detail a complete procedural framework for the obtaining, the making and the enforcement of the orders it expressly contemplates.  The power to make and enforce the order flows from the promulgation of the rule and not from the inherent common law powers of superior courts.  The same is true of the sanctions: They are expressly set out in the relevant rules and neither is dependent on, nor circumscribed by, the common law relating to disobedience of court orders.  Manifestly, this legislative scheme is not at all analogous to the rules considered in Clement.  Rules 60.11 and 60.12 do not merely recognize or preserve the common law.  On the contrary, they go beyond the common law and create an express mode of proceeding that carries with it express judicial powers.  The exception in s. 127 of the Criminal Code does not require more.

Cases Cited

By Deschamps J.

Applied:  R. v. Clement1981 CanLII 212 (SCC), [1981] 2 S.C.R. 468; referred toOntario (Attorney General) v. Dieleman reflex, (1994), 20 O.R. (3d) 229; R. v. Traves 2000 CanLII 19596 (SK PC), (2000), 192 Sask. R. 128; R. v. Dawson 1995 CanLII 4253 (NS CA), (1995), 143 N.S.R. (2d) 1; R. v. Thompson, [1995] B.C.J. No. 2819 (QL); R. v. Creamer, 2001 ABPC 184, 297 A.R. 151; R. v. MacLean2002 NSSC 283 (CanLII), 2002 NSSC 283, 210 N.S.R. (2d) 150; R. v. Mulhall, [2001] O.J. No. 5237 (QL); R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597; R. v. Gaudreault 1995 CanLII 5075 (QC CA), (1995), 105 C.C.C. (3d) 270.

By Fish J. (dissenting)

Ontario (Attorney General) v. Dieleman reflex, (1994), 20 O.R. (3d) 229; R. v. Clement1981 CanLII 212 (SCC), [1981] 2 S.C.R. 468.

Statutes and Regulations Cited

Code of Civil Procedure, R.S.Q., c. C‑25art. 49.

Constitution Act, 1967, s. 96.

Courts of Justice Act, R.S.O. 1990, c. C. 43.

Criminal Code, R.S.C. 1985, c. C‑46ss. 127545, 686.

Criminal Code, S.C. 1892, c. 29, s. 139.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 60.11, 60.12.

Authors Cited

Great Britain.  Criminal Code Bill Commission.  Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences:  With an Appendix Containing a Draft Code embodying the Suggestions of the Commissioners.  London:  The Commission, 1879.

APPEAL from a judgment of the Ontario Court of Appeal (Goudge, Feldman and Watt JJ.A.), 2010 ONCA 77 (CanLII), 2010 ONCA 77, 100 O.R. (3d) 248, 258 O.A.C. 182, 251 C.C.C. (3d) 460, 73 C.R. (6th) 23, [2010] O.J. No. 342 (QL), 2010 CarswellOnt 476, affirming a decision of Frank J., 2009 CanLII 31598 (ON SC), 2009 CanLII 31598, [2009] O.J. No. 2559 (QL), 2009 CarswellOnt 3525, setting aside the quashing of an information by Moore J.  Appeal dismissed, Fish J. dissenting.

                    Daniel C. Santoro and Nicolas M. Rouleau, for the appellant.

                    Susan Magotiaux and Matthew Asma, for the respondent.

 

The judgment of McLachlin C.J. and LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.was delivered by

 

DESCHAMPS J. —

[1]                              This appeal concerns the interpretation of s. 127 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), in light of this Court’s decision inR. v. Clement1981 CanLII 212 (SCC), [1981] 2 S.C.R. 468. The question is whether the provisions of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Ontario Rules”), governing motions for contempt orders, preclude the application of s. 127 Cr. C., which makes it a criminal offence to disobey a court order.  On appeal, the Ontario Superior Court of Justice and Ontario Court of Appeal, relying on Clement, held that they do not. I agree. In my view, the exception in s. 127 is meant to apply where there is an express alternative statutory response to failures to obey court orders. I would dismiss the appeal.

[2]                              The appellant was charged in 2008 under s. 127(1) with disobeying a court order. The court order in question was an interlocutory injunction granted in 1994 by Adams J. that was still in force when the charge was laid (sub nom. Ontario (Attorney General) v. Dieleman reflex, (1994), 20 O.R. (3d) 229). It enjoined the appellant and others from displaying protest signs in the vicinity of specific abortion clinics. The appellant allegedly displayed a protest sign on October 8, 2008 within the prohibited distance from one of the clinics. The present proceedings result from a pre-trial motion brought by the appellant to quash the information on the ground that Ontario Rules 60.11 and 60.12 preclude the application of s. 127(1).

[3]                              Section 127 of the Cr. C. reads as follows:

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.

[4]                              The offence established in s. 127(1) came into being as an indictable offence in s. 139 of the Criminal Code of 1892, S.C. 1892, c. 29, which was based on s. 115 of the English Draft Code (Appendix to the Report of the Commission Appointed to Consider the Law Relating to Indictable Offences (1879)), at p. 88. In the Draft Code, the “penalty or other mode of proceeding” had not only to be “expressly provided by law”, but also to be “intended to be exclusive of all other punishment for such disobedience”:

Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to one year’s imprisonment, who without lawful excuse disobeys any lawful order made by any court of justice or by any person or body of persons authorised by any statute to make or give such order, unless some penalty or other mode of proceeding is expressly provided by law and is intended to be exclusive of all other punishment for such disobedience. [Emphasis added; p. 88.]

It is instructive that the exception in the Canadian provision is worded more broadly than its English predecessor. However, in amending this provision over time, Parliament has consistently required that the punishment or other mode of proceeding be “expressly provided by law”, thereby ensuring that the provision would have an important role.

[5]                              In Clement, this Court held that the term “lawful order” in s. 127 (then s. 116) refers to a court order that is either “criminal or civil in nature” (p. 472). It also held that the “law” referred to in that section is statute law. The Court was of the view that the inherent power of a court to conduct its business and punish for contempt cannot be said to be “expressly provided” within the meaning of s. 127: something “inherent”, almost by its nature, is not “express” (p. 476). The Court held that the provisions of the Rules of the Court of Queen’s Bench of Manitoba were insufficient to preclude the application of s. 127, because they did not provide the legal foundation for a proceeding for contempt of court. Instead, the common law continued to provide such a foundation. The Court added that, “[w]ithout that common law substratum, these rules alone cannot be a fulfilment of the exceptional requirement of s. [127(1)] that there be ‘some penalty or punishment or other mode of proceeding … expressly provided by law…’” (p. 475).

[6]                              In Clement, the Court rejected the argument that, if the inherent power of superior courts to punish for contempt was not sufficient to trigger the exception, there would be no limitation on the availability of s. 127 for the enforcement of compliance with court orders. It noted that there are instances in which punishment or other modes of proceeding are expressly provided by law, such as in s. 545 (then s. 472) of the Cr. C. (p. 479).

[7]                              Clement has been interpreted in different ways by lower courts. In some cases, specific punishments and modes of proceeding, applicable to specific situations, have been held to fall within the exception in s. 127 (R. v. Traves 2000 CanLII 19596 (SK PC), (2000), 192 Sask. R. 128 (Prov. Ct.), at para. 14; R. v. Dawson 1995 CanLII 4253 (NS CA), (1995), 143 N.S.R. (2d) 1 (C.A.), at para. 27). Other courts have considered whether the particular procedure for obtaining a contempt order was comprehensive (R. v. Thompson, [1995] B.C.J. No. 2819 (QL), at paras. 38-40; R. v. Creamer, 2001 ABPC 184, 297 A.R. 151, at paras. 22, 24; R. v. MacLean2002 NSSC 283 (CanLII), 2002 NSSC 283, 20 N.S.R. (2d) 150, at para. 30; R. v. Mulhall, [2001] O.J. No. 5237 (QL) (Ct. J.), at paras. 10-11).

[8]                              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.

[9]                              The fact that rules of court provide for punishment or a mode of proceeding is not sufficient to trigger the exception if the order is issued pursuant to the court’s inherent common law power. With respect for the opinion of my colleague Fish J., this case cannot be distinguished from Clementon the ground that the Ontario Rules provide a more detailed procedural framework than the Manitoba Rules did and are, in his view, “expressly provided by law” within the meaning ascribed to s. 127 in that case.  I agree with the Court of Appeal 2010 ONCA 77 (CanLII), (2010 ONCA 77, 100 O.R. (3d) 248) in the case at bar that, while the Ontario Rules provide a much more detailed procedure than did the rules at issue in Clement, the former are as dependent on the common law for their legal foundation as the latter were (para. 41). The adoption of rules of procedure governing the exercise of a superior court’s inherent jurisdiction will not preclude the application of s. 127 unless Parliament or a legislature has explicitly authorized the court to sanction failures to obey the court order.

[10]                          The appellant asks this Court to reconsider the requirement from Clement  of an express legal foundation for contempt proceedings in a superior court. She contends that s. 96 of the Constitution Act, 1867 already provides for such a legal foundation and that “[t]o require a provision to provide the legal foundation for the authority of a superior court to take contempt proceedings is an impossibility”. This argument cannot be accepted. The inherent powers of a superior court to conduct its business and punish for contempt are founded on its power to act as a court of general jurisdiction. The constitutional provision that enables superior courts to so act does not expressly confer on them a power to address the public wrong of disobeying a court order.

[11]                          Parliament and the legislatures may provide an express alternative response to the failure to obey a court order even where the court’s power to take contempt proceedings originates in the common law. An analogous issue was considered in R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597, in which this Court noted that, while the power of an appellate court to enter a stay of proceedings derives from the inherent jurisdiction of a superior court, s. 686 of the Cr. C. gives the power “statutory form”. When a court of appeal stays proceedings for abuse of process, the source of its authority is thus statutory (para. 23).  Likewise, as the Quebec Court of Appeal found in R. v. Gaudreault 1995 CanLII 5075 (QC CA), (1995), 105 C.C.C. (3d) 270, at p. 276, the Quebec legislature has, in art. 49 of the Code of Civil Procedure, R.S.Q., c. C-25, anchored the Superior Court’s power to issue contempt orders in statute.  By further defining when a person will be found in contempt and providing for a specific punishment (arts. 50-51), it has enacted an express statutory response to the failure to obey a court order, thereby rendering s. 127 inoperative.

[12]                          The appellant invokes policy reasons to justify the proposition that s. 127 should apply only when there is “no other means of enforcement”. In her view, the court that issued the original order is in the best position to determine whether the order has been disobeyed. While I agree that this is a valid policy consideration, it cannot prevent the Crown from relying on s. 127 where the conditions that would trigger the exception are not met.

[13]                          The appellant also suggests that provincial governments may be encouraged to relinquish their responsibility to administer provincial schemes. In response to this argument, I note that no evidence was adduced to demonstrate an overuse of s. 127 to sanction contempt of court.  Another point that bears mentioning is that, in the Court of Appeal, the appellant sought leave to argue that the prosecution should be stayed as an abuse of process. The Court of Appeal denied this leave and the appellant did not seek leave to argue the issue in this Court.

I.  Application

[14]                          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.

[15]                          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.

[16]                          For these reasons, I would dismiss the appeal.

 

The following are the reasons delivered by

 

FISH J. —

I

[17]                          Nearly 18 years ago, a judge of the Ontario Court (General Division) granted an interlocutory injunction ordering the appellant, Linda Dale Gibbons, not to display signs within 60 feet of certain abortion clinics.  Ms. Gibbons is alleged to have disobeyed that order some 14 years later, in 2008. For that, she stands charged with disobeying a court order contrary to s. 127 of the Criminal Codewhich does not apply where a punishment or other mode of proceeding is expressly provided by law”.

[18]                          It is undisputed that the Ontario Rules of Civil Procedure (“the Rules”), are “law” within the meaning of s. 127 of the Code.  Accordingly, the sole issue on this appeal is whether they expressly provide “a punishment or other mode of proceeding” for disobedience of the court order that concerns us here.

[19]                          I am satisfied that they expressly provide both.

[20]                          As we shall see, Rules 60.11 and 60.12 provide in the plainest of terms for an “order to enforce an order requiring a person to do an act … or to abstain from doing an act”.  They set out the governing procedural requirements in detail. And they set out the sanctions for non-compliance ― which include imprisonment, a fine, and the payment of costs.

[21]                          The common law origin or nomenclature of the disobedience order validly authorized by Rules 60.11 and 60.12 does not denude them of their true character as a “mode of proceeding … expressly provided by law”.  As Estey J. explained in R. v. Clement1981 CanLII 212 (SCC), [1981] 2 S.C.R. 468, at p. 477:

… courts may adopt rules or procedures, but this is done … in all the provinces of our country, by exercising the sub-legislative power of enactment of rules granted by the provincial legislature, or by a court adopting rules in criminal procedure pursuant to the authority granted in s. 438 [now s. 482] of the Criminal CodesupraIn all such cases, the rules so adopted are legislative in nature and not a product generated within the common law. [Emphasis added.]

[22]                          There is no suggestion that Ms. Gibbons is not subject to an enforcement order or to the sanctions for non-compliance expressly provided by these rules.

[23]                          And there is no suggestion ― nor can there be ― that Ms. Gibbons is subject to prosecution under s. 127 of the Criminal Code for disobeying the court order made against her in 1994 if, as I believe, “a punishment or other mode of proceeding is expressly provided by [Rules 60.11 and 60.12]”.

[24]                          Accordingly, with respect for those who are of a different view, I would allow the appeal and quash the information laid against Ms. Gibbons pursuant to s. 127 of the Criminal Code.

II

[25]                          Crown counsel submits that the outcome of this appeal is settled by R. v. Clement, but, in my respectful view, Clement is distinguishable.

[26]                          Clement was concerned with the old Rules of the Court of Queen’s Bench of Manitoba, which merely reaffirmed the inherent power of the superior court to enforce its own process.  Unlike the rules that concern us here, they did not expressly create another mode of proceeding to address disobeyed court orders.  For that, one looked to the common law.

[27]                          The relevant rules in this case do not share the same limitations. I agree in this regard with Watt J.A., speaking for the Court of Appeal.  As Justice Watt explained:

Rules 60.11 and 60.12 are much more detailed, specific and comprehensive provisions for litigants who seek a contempt order than those portions of the Rules of the Court of Queen’s Bench of Manitoba under consideration in Clement. [para. 41]

[28]                          The mode of proceeding in Rules 60.11 and 60.12 is express — an originating motion, complete with notice requirements, affidavit support, prescribed forms, and powers of the court in disposing of such motions — and, I repeat, it is expressly provided by law — more particularly, by the Rules of Civil Procedure, promulgated under the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[29]                          I do not read Clement or s. 127 of the Criminal Code as requiring anything more.

[30]                          Justice Deschamps, like Justice Watt in the Court of Appeal, finds that the Rules “do [not] establish the legal foundation for … contempt” and that a judge must rely on the “common law substratum” when issuing a contempt order (para. 14).  According to my colleague, Rules 60.11 and 60.12 merely circumscribe the judge’s inherent power to make orders pursuant to a finding of contempt, as the Manitoba Rules did in Clement.

[31]                          With respect, Rules 60.11 and 60.12 go further.

[32]                          Rule 60.11(1) expressly provides for an 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”.  This rule, authorized by statute, provides a legislative foundation for the enforcement of court orders.

[33]                          It sets out in detail a complete procedural framework for the obtaining, the making and the enforcement of the orders it expressly contemplates.  The power to make and enforce the order flows from the promulgation of the rule and not from the inherent common law powers of superior courts.  The same is true of the sanctions: They are expressly set out in the relevant rules and neither is dependent on, nor circumscribed by, the common law relating to disobedience of court orders.

[34]                          That Rules 60.11 and 60.12 expressly provide by law a detailed, specific and comprehensive “mode of proceeding” with respect to the disobedience of a court order alleged against Ms. Gibbons is clear from the text of the provisions:

60.11  (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.

 

(2)  The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.

 

(3)  An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit

 

(4)  A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person’s attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.

 

(5)  In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

 

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the

order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers

necessary,

 

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

 

(6)  Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property.

 

(7)  An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L).

 

(8)  On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.

 

(9)  Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.

 

(10)  The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.

 

60.12  Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

 

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s

defence; or

(c) make such other order as is just.

[35]                          Manifestly, this legislative scheme is not at all analogous to the rules considered in Clement.  Rules 60.11 and 60.12 do not merely recognize or preserve the common law.  On the contrary, they create an express mode of proceeding that carries with it express judicial powers.  The exception in s. 127 of the Criminal Code does not require more.

[36]                          Unlike the old Manitoba Rules, the Ontario Rules do provide a mode of procedure, legislative in nature.  And unlike the procedure under the old Manitoba Rules, the procedure under the Rules of Civil Procedure will not “vary from court to court, and … from circumstance to circumstance” (Clement, at p. 476).  Rules 60.11 and 60.12 go beyond the common law: providing the parties and the court with an express procedural framework.

[37]                          It follows that Rules 60.11 and 60.12 expressly provide by law another mode of proceeding. As the phrase “punishment or other mode of proceeding … expressly provided by law” is disjunctive, this conclusion is sufficient to preclude prosecution under s. 127 in this case.

[38]                          Finally, it is undisputed that the Attorney General of Ontario could have proceeded under Rules 60.11 and 60.12 to enforce the interlocutory order made against Ms. Gibbons in 1994.  There is no doubt how these rules operate or what the court is empowered to do when they are engaged.

III

[39]                          For all of these reasons, as stated at the outset, I would allow the appeal and quash the information laid against Ms. Gibbons, leaving the Attorney General of Ontario free, if he thinks it appropriate, to apply to the Superior Court of Justice for a contempt order pursuant to Rule 60.11.

 

 

 

Appeal dismissed, FISH J. dissenting.

Solicitor for the appellant:  Daniel C. Santoro, Toronto.

Solicitor for the respondent:  Attorney General of Ontario, Toronto.

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