TORONTO, Ontario, May 8, 2012 ( – Legal arguments again consumed an entire hearing as Linda Gibbons made her latest court appearance last Friday morning on a charge of disobeying a court order in connection with her arrest at the Morgentaler “Clinic” abortion site last December 16. She has pled not guilty.

Her counsel, Daniel Santoro, followed up on his motion for a directed verdict of not guilty, first requested at a previous hearing on April 26. He is positing that Gibbons is not bound by the terms of a permanent injunction banning specified activities within 150 metres of the Morgentaler site, because she was not named in the action that brought it about and never consented to it. The injunction, he argues, could not be made binding on every person in the world.

“It is manifestly unfair to apply the order to people not involved in the settlement,” Santoro told Justice William R. Wolski Friday. “The order should use language that binds others; this order does not … It’s not an order against her and could not be.”

Crown attorney Andrew Cappell retorted that case law has made it clear orders can be issued against persons unknown and are binding on them in certain circumstances. He has argued that the text of the injunction stipulates that it is applicable to “Jane Doe” and persons unknown, although Santoro has responded that “Jane Doe” and “persons unknown” are not actually part of the order.

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Cappell added that case law shows it is not necessary to refer to persons unknown at all and he charged that the defence motion was a “collateral attack” against the validity of the civil injunction itself, something not permitted in a criminal court. Gibbons “should challenge the order itself in the proper venue (civil court),” said Cappell. “I’d agree to an adjournment for that.”

Santoro replied that he was not attacking the validity of the order at all, but rather was simply saying the measure did not apply to his client. “Read the order – it doesn’t bind my client … A judge’s role is being subdelegated to a police officer … The collateral attack argument is a red herring. It obviously isn’t one.” Cappell then rose to again claim Santoro’s motion was a collateral attack.

Wolski concluded that he would need further time to review the competing arguments before coming to a decision on whether to allow the defense motion. He adjourned the trial for that purpose to Monday, June 4 in Room 504 of the College Park courthouse at Yonge and College Streets in Toronto. The hearing may be traversed to another room depending on where Wolski is assigned that day. Gibbons will remain in custody at the Vanier Centre for Women in Milton as she has declined to agree to proposed terms of bail.

Should Wolski deny the defense motion, the trial will continue on June 14. Santoro has another argument prepared in that case – that Gibbons’s conduct on December 16 did not violate the terms of the injunction in the first place. “The order does not capture peaceful, silent standing in front of a clinic with anti-abortion literature in hand,” he had said on April 26.

The entire process will become moot if the Supreme Court of Canada rules in Gibbons’s favor regarding her appeal to that court of a previous conviction on the grounds that she was improperly prosecuted in a criminal court for a violation of an injunction issued by a civil court. If she wins, she will go free and the government will no longer be able to prosecute her in a criminal court in such matters. The decision from Ottawa is still being awaited.


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