At the conclusion of a hearing into Linda Gibbons’ case on Dec. 14, Judge Mara Beth Greene reserved a ruling on an abuse of process application until Jan. 12. This ensures that Gibbons, who refuses to sign bail conditions requiring she stay away from abortion sites, remained imprisoned over the Christmas season.
Arguments for and against a judge hearing the abuse of process application consumed the majority of time when Gibbons made her latest appearance in a downtown Toronto courtroom on a charge of disobeying a court order. At issue is a letter from Gibbons’s previous lawyer that should have been provided to her current defense team as part of normal Crown disclosures, but was not.
The letter made it clear that lawyer Peter Jervis was not acting as her counsel in 2001. That was when an adjournment was called in meetings on the status of a temporary court injunction that had been issued in 1994, prohibiting pro-life activity around certain Toronto abortion sites. Without representation, Gibbons – who remains silent in court proceedings out of solidarity with the unborn – could not have legally given her assent to the adjournment.
Crown attorney Mathew Asma, at a previous hearing on Dec. 1, said his office was unable to find the letter in its files. But despite its apparent mismanagement of documents, the Crown has sought a summary dismissal of the abuse of process application. Asma claims issues such as missing documents are irrelevant and simply part of a “collateral attack” against the court injunction itself.
At the latest hearing, defense lawyer Daniel Santoro submitted that the Crown’s decision to enforce the injunction now, 16 years later, is abusive and a dereliction of duty. The Crown was aware, he said, that Jervis had ceased being Gibbons’s counsel shortly after 1994 and that she was unrepresented in 2001.
“Institutional negligence has carried on into the present case,” he said. “I have a big problem with the failure to recover that letter… I don’t see how you can lose correspondence of that nature… their negligence has carried on into this proceeding.”
Asma again submitted that the defense arguments were part of a “collateral attack” against the injunction and that Gibbons was seeking “immunity” from its terms. “Miss Gibbons has an avenue of appeal through the Superior Court,” he said. “She has chosen not to take it … That does not give her a holiday from justice.”
Asma also argued that Jervis had to formally remove himself from the record in representing Gibbons and that a letter was not sufficient to do so. “You can’t say the Crown was acting improperly in following the law … Mr. Jervis was on the record in 2001.” He added that Gibbons has a history of refusing to participate in court proceedings and there is “no reason” to think she would have participated in 2001.
Judge Mara Beth Greene observed there are a lot of issues surrounding what happened in 2001 and that there is evidence that could be fleshed out. “There is an obligation upon the court that all parties agreed to the adjournment.”
Meanwhile, Santoro has sent a request to the Supreme Court of Canada for it to hear an appeal into a conviction of Gibbons on an earlier charge of disobeying a court order. The appeal is being made on the grounds that the case was improperly heard in a criminal, rather than civil, court. (The 1994 injunction under which she was convicted had been pronounced in a civil court.)
The Crown, supplying case law to back its position, is opposing the application on the grounds that it has no merit and the question of venue is not an important issue. Santoro differs, arguing that various courts in Canada have ruled divergently and it is incumbent on the Supreme Court to decide the matter once and for all.
It will likely be three to four months before it is decided whether the Supreme Court will hear the appeal.
This article originally appeared Dec 15, 2010 at LifeSiteNews.com and is reprinted with permission.