TORONTO, Ontario, March 9, 2011 ( – The Crown called its final two witnesses, and it and the defence made their final submissions, as the abuse of process hearing pursued by the defence in the Linda Gibbons case came to a close at the College Park courthouse in downtown Toronto on Tuesday. Within the trial on a charge of disobeying a court order is the issue of whether Gibbons was legally represented after the summer of 1994, when her lawyer at the time says he ceased representing her, and whether the Crown acted correctly in moving forward on an injunction case to which she legally may not have been able to give her assent.

A day earlier, lawyer Peter Jervis testified that he had notified the Crown attorney’s office immediately in the summer of 1994, and on several occasions in the years afterward, that he was no longer representing Gibbons because she had breached the terms of the injunction, contrary to his specific advice not to do so. The Crown took the position that that was of no consequence, since he had failed to formally remove himself from the record throughout that period.

On Tuesday, Thomas Marshall, a counsel with the Ministry of the attorney-General, testified that he became involved in the injunction case around 2001, when the matter came up for a status review. He told Crown attorneys Mathew Asma and Zachary Green that Jervis had made no move to remove himself as counsel of record. However, on cross examination by defence lawyer Daniel Santoro, Marshall said he had not been made aware of Jervis’s previous communications to the Crown attorney’s office that indicated he was no longer representing Gibbons.
“Had (a) letter come to me, I would have had a conversation with Mr. Jervis about what to do about the situation,” said Marshall. “But I was under no obligation to act under the circumstances.”

Sandra Di Ciano, another counsel with the Ministry of the Attorney-General, said she also became involved in the injunction matter at that time and told Asma that Jervis was the counsel of record throughout that period. Upon cross-examination by Santoro, however, Di Ciano said she couldn’t recall whether she had reviewed previous correspondence indicating Jervis was ceasing to represent Gibbons and also acknowledged her minutes of meetings during that period were not complete and may not have captured everything that was said.

In closing summations, Santoro and Nicholas Rouleau for the defence said the Crown’s obligations to ensure Gibbons’s interests were looked after were elevated on account of Jervis’s communications on several occasions that he was no longer representing her. They also noted that Marshall indicated he would have done something different had he known about Jervis’s position.

Asma and Green for the Crown suggested Jervis’s evidence was not reliable and centred more on what he now thinks he should or would have done. They also charged he had “a cavalier attitude to his legal obligations as counsel of record.” They suggested he did represent Gibbons legally after claiming he ceased to do so in 1994 and that it is not the Crown’s onus to have a counsel removed from the record.

“His retainer is between himself and his client,” said Asma. “There is no being halfway off the record … You’re either on or off the record.”

Madam Justice Mara Beth Greene adjourned the matter to Tuesday, April 12 at 10 a.m. at the College Park courthouse, Yonge and College Streets in Toronto, when she will render her decision on the abuse of process application. Gibbons will remain imprisoned until then, as she refuses to sign bail conditions that include requirements to stay away from abortion sites.

See related story:
Abuse of process hearing begins in Gibbons case