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).
Section 127 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.
The Court held that 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,  2 S.C.R. 468, 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.