On Monday, March 7, a downtown Toronto courtroom took a trip back in time to the early 1990s and the days of NDP rule in Ontario, when the government of premier Bob Rae and attorney general Marion Boyd attempted to squelch pro-life activism throughout the province by way of a wide-ranging court injunction. It was part of the first day of a hearing into an abuse of process application within the trial of Linda Gibbons on a charge of disobeying a court order.
The defence took the position that Gibbons was legally unrepresented in 2001, when meetings were held to update the status of an interlocutory (temporary) injunction issued by a civil court in August 1994, prohibiting pro-life activity within 20 meters of certain Toronto abortions sites. If indeed unrepresented in 2001, Gibbons could not have given her assent to the results of those meetings.
First taking the witness stand was lawyer Peter Jervis, who acted in a civil capacity on behalf of Gibbons and other pro-life defendants beginning in 1993. Taking questions from defence counsels Daniel Santoro and Nicholas Rouleau, he described how he made it clear to all parties, including Crown attorneys in the case, that he could and would no longer be representing Gibbons once she breached the terms of the injunction immediately after it was issued. “It was essential that the order be obeyed,” he told the court. “I could not represent anyone not obeying the order.”
Jervis added he contacted the attorney-general’s office right away about the matter, including in writing. “I intended to communicate as early and as clearly as I could… she had withdrawn from my retainer… my intention was to say I cannot and will not represent her further… all counsel knew my position in the matter,” he said.
He went on to dispute the accuracy of minutes of meetings held in 2001 that showed him still as Gibbons’s counsel that year.
Crown attorneys Mathew Asma and Zachary Green then cross-examined Jervis and pointed out that he had failed to ever formally remove himself as counsel of record for Gibbons.
They also honed in on correspondence and meetings held after August 1994 that appeared to show Jervis still as counsel. “There is no suggestion that there was an unrepresented party,” charged Asma. “The court is relying on the record and on you to advise that you’re removed from the record.”
Jervis replied that the other defence counsels in the civil case, David Brown and Peter Lauwers, have likewise failed to remove themselves as counsels of record to this day, despite the fact they are now sitting judges and cannot represent anyone even though the injunction remains in effect.
Beginning his submissions, Asma then called Crown attorney Leah Price to the witness stand. She was prominent in the civil action on behalf of the Rae-Boyd regime that brought the injunction into effect. She asserted that Jervis acted as counsel for all “the Toronto defendants” in the litigation process and “that never changed.”
“You’re not off the record until you’re off the record,” she added. “Mr. Jervis is entitled to his opinion. I don’t share it. I don’t agree with him.”
Santoro, on cross-examination, pointed out that Jervis had clearly indicated there had been a serious breakdown in the relationship between himself and Gibbons upon her breaching the terms of the injunction and that the ministry of the attorney-general should have responded accordingly.
“It’s a problem between counsel and his own client,” Price responded. “I proceed on the basis they continue to represent… until you get off the record, you’re still on it.”
The hearing was scheduled to resume Tuesday March 8 at 10 am. at the College Park courthouse, Yonge and College Streets in Toronto. Asma indicated he would call two more witnesses from the attorney-general’s office and expected the hearing would end the same day, instead of carry over to Wednesday as originally scheduled.
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 on the second of three scheduled days of hearings.
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 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, defence lawyers Santoro and Rouleau 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 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.
