University of Alberta Faculty of Law Blog

Litigation Privilege: Emerging Issues

Every civil litigator has to quickly get up to speed on the question of litigation privilege, a subject area that continues to evolve and change each year.  A recent British Columbia Court of Appeal decision touches on some important concerns about the scope of the privilege, and I discuss them in the following Video Blog:

 

What the Jian Ghomeshi Trial Says About Our Society and the Progress Still Needed

Next month Justice Horkins will deliver his decision as to whether Jian Ghomeshi has been proven guilty beyond a reasonable doubt of four counts of sexual assault as well as one count of overcoming resistance by choking. This trial dealt with allegations made by three complainants, and another trial is scheduled later this year to address allegations made by other women. Media discourse on the trial demonstrated that when an accused person is tried for sexual assault, society places the sexual assault victims on trial as well.

The witnesses in the Ghomeshi trial have been disbelieved for not fitting into the box which society has defined for victims. The women did not describe the event as one which involved tears and attempts to fight off their alleged attacker. They did not flee from the scene of the crime and run straight to police. They did not faint at the thought of having to encounter their attacker again; in fact, all complainants reached out to Ghomeshi after the alleged sexual assaults. Upon hearing this inconceivable post-incident conduct, many concluded that Ghomeshi was falsely accused, because it makes no sense for a victim to behave in any other way than a damsel in distress.

A common thread between the three complainants who testified is that they each tried to normalize the assault immediately after it had happened. Witness 1 wondered if the first time he pulled her hair was intentional, as she had just finished an enjoyable date with Ghomeshi who had been charming and charismatic. The second woman, Lucy DeCoutere, “didn’t want to be rude” after Ghomeshi pulled her hair and slapped her, so she continued the evening activities with him, and saw him on several more occasions.[1] She did not report what had occurred because “I always thought assault meant you were beaten to pieces. I didn’t think this qualified.”[2] Finally, witness 3 continued the trend of blaming herself for seeing Ghomeshi after the alleged assault against her. She stated that the incident was out of character for him, and that she typically gives people second, third, and fourth chances.[3] Like DeCoutere, witness 3 did not know that the incident would count as sexual assault or that there was any criminal act against which to press charges.[4]

Marie Henein, defence counsel for Ghomeshi, used witness 1’s post-attack correspondence with Ghomeshi to destroy her credibility. This is an understandable legal tactic because witness 1 falsely stated in her evidence that she did not communicate with Ghomeshi after the assault.[5] However, DeCoutere made no such statement, so why were her emails and letters to Ghomeshi displayed and read to the Court? The correspondence revealed that DeCoutere sought Ghomeshi out after the alleged offence and that she tried to initiate sexual contact the following day. Despite DeCoutere’s explanation of trying to normalize what had occurred, and that at the time she felt that “I put myself in this place”, Henein’s cross-examination had the effect of turning many into disbelievers of DeCoutere’s evidence.[6] If this post-offence conduct were not enough to cast doubt on DeCoutere, Henein continued by highlighting DeCoutere’s humorous tweets and interviews on the subject of her alleged assault. Henein suggested that the assault never occurred, which is odd, given that she did not draw out any evidence to contradict DeCoutere’s version of the events in question.[7]

DeCoutere explained in court that just like an intimate relationship where a person still loves the person who physically abuses them, or stays in an abusive relationship, sexual assault victims may respond in a variety of ways.[8] Continued contact, referencing the event in a joking way, or expressing excitement about testifying are examples of possible responses, and DeCoutere has been chastised for all of the above.

Witness 3 had her credibility questioned because she did not inform police that she went out with Ghomeshi subsequently, which involved further sexual contact. She explained that she did not think it was relevant and that it was also embarrassing. Why witness 3 left out the “embarrassing” fact that she later performed manual stimulation on Ghomeshi reflects what women are taught about sexual activity in our current society: sexual promiscuity is not ladylike behaviour. Perhaps it was the witness’s concern about being perceived as promiscuous that caused her nondisclosure to police, or perhaps it can be attributed to rape culture, wherein a victim is expected to flee an attacker and to know better than spending further time with the man who traumatized her.

Whether Jian Ghomeshi is legally innocent (committed the acts but cannot be proven beyond a reasonable doubt), factually innocent (did not commit the acts alleged), or found guilty of committing the assaults, it can be safely said that our society is guilty of perpetuating rape culture. This trial has demonstrated that the average citizen commenting on the witnesses’ behaviours has neglected to become informed on an issue which plagues our society and disproportionately victimizes women – sexual assault.

Here is a crash course on the elements of sexual assault: non-consensual + application of force (touching another person in a non-trivial, non-trifling way) or threat of force + violation of one’s sexual integrity = sexual assault.

Further requirements such as reporting immediately and giving the attacker the cold shoulder are not realistic for several reasons. One extremely troubling theme in the three victims’ testimony is that they felt ashamed of how they had acted after the assault, and that they did not know that the incident constituted sexual assault. In a country which does not include consent in educating youth on sexual assault, it is unreasonable to place requirements on victims to respond instantly and logically. When society shames female sexual promiscuity and ignores the prevalence of sexual assault, it is inappropriate to place the burden on victims to recognize the full spectrum of assaultive behaviour and to report embarrassing incidents candidly and objectively.

The lesson to be taken from the Ghomeshi trial is that 100 years after women’s enfranchisement, we must continue to fight for equality. We must fight to remove gendered stereotypes of appropriate sexual behaviour, and a pivotal step in this direction is education. Ontario is the first province to introduce consent into their new sex-education curriculum for adolescents, which was implemented this year.[9] All 61 school boards of Alberta approve of introducing consent into the curriculum, and hope that the Alberta government will implement mandatory instruction.[10] Until education is delivered to youth, boys and girls will continue to receive inaccurate information from media and their peers, which further perpetuates harmful gendered stereotypes about sexual activity and sexual assault. As a result, victims will likely wonder what they did wrong to encourage the assault, and will refrain from sharing their experience for fear of how they will be perceived. Eliminating rape culture is the battle of this generation, similar to the fight for suffrage 100 years ago. Education is a promising step to this end.   

 

[1]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[2]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[3]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[4]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[5]http://www.macleans.ca/news/ghomeshi-day-2-an-email-bombshell-and-sidestepping-consent/

[6]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[8]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[7]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[9]https://www.ontario.ca/page/sex-education-ontario

[10]http://www.cbc.ca/news/canada/edmonton/alberta-school-boards-want-consent-added-to-sex-education-curriculum-1.3324110

He Said / She Said: Voting, Voicing, and Testifying

Studying the history of the women’s suffrage movement reveals many social factors that affected and continue to affect Canada’s legal system. As readers of the Ms. Suffragette blog are aware, 2016 celebrates one hundred years of women’s voting rights in Canada. Significant progress in this area has been made over the last century, as women and men now represent approximately equal numbers of voters [1].

By enacting voting rights for women, Canadian society recognized that women and men had equal voices in the political sphere. The ability to express one’s voice in a political forum reflects the fundamental right to express one’s personal opinions on important, public matters.Therefore, the right to vote is tied to the core of personhood. However, it is essential that equality between men and women extends outside the political sphere. Just as women are considered equal to men politically, they must also be considered equal to men individually, in social situations, and under the law.

In Canadian courts, the evidentiary testimony of a witness is presented through viva voce evidence, which is the legal term referring to oral testimony in court. In the search for the truth, a witness’s factual views on an event can be compared to another’s understanding of the same event. This comparison of views often occurs in the context of sexual assault trials. A complainant of sexual assault can relay the events as he or she views them, and the accused can also testify as to his or her version of the events in question. Courts are sometimes presented with a diametrically opposed, he-said/she-said version of events. In assessing the truth, the court will consider the credibility of the witnesses. In the Canadian legal system, the testimony of women and men is assessed equally, irrespective of their gender [2]. However, in countries that include Islamic Shari’a law in their legal systems, a woman's testimony is not accorded equal weight to a man’s testimony. For example, in countries such as Bahrain, Jordan, Kuwait, Lebanon, Saudi Arabia, Syria, and the United Arab Emirates, women are not perceived to be as credible as men in regards to their testimony [3].

Further, sexual violence tends to be perpetrated by men upon women, and this gender-based trend is fairly uniform globally [4]. In legal systems where women are viewed as having equal voices to men, victims of sexual violence may have better access to justice, and perpetrators are more likely to be reprimanded or rehabilitated. However, in countries that incorporate Shari’a law into their legal systems, victims have less opportunities to have their voice heard under the law. As women are more likely to be victims and as men are more likely to be perpetrators, women have less chances to effect retribution against male perpetrators.

In traditional Shari’a religious courts “the testimony of two women is required to match the value of one man’s testimony” [5]. In Jordan, for example, a woman who applies for a divorce on the basis of domestic violence must provide the court with “two male witnesses” because her own evidence is insufficient [6]. Lebanon, Kuwait, and Syria have civil and criminal court systems for most claims and offences. However, the systems are supplemented with a Shari’a court system [7]. The Shari’a courts, where a woman’s testimony is worth only half of a man’s testimony, prosecute moral crimes. Moral crimes in these religious courts include adultery, marital rape, and “honor” [sic] crimes. An example of a potential honour crime is “the murder or beating of [a woman] for alleged sexual misconduct” [8].

Due to international pressure, especially from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), many countries have moved away from purely Shari’a-based legal systems in order to increase the legal and political rights of women [9]. Bahrain ratified CEDAW in 2002, but with reservations concerning “family law, equality, freedom of movement, and residence” [10]. Generally, women in Bahrain are equal to men in the legal courts, but Shari’a courts still “state that a valid witness should be two men, or two women and one man” [11]. Egypt ratified much of CEDAW in 1981, and a woman’s testimony is legally equal to that of a man [12]. However, conservative power structures still make access to justice difficult for women when bringing assault claims to the courts [13]. The United Arab Emirates ratified many of the CEDAW Articles in 2004, but retain “precepts of Shari’a regarding [certain traditional] rights” [14]. For example, despite Dubai’s international appeal, in the absence of a confession to sexual assault, four adult male witnesses must supplement a female complainant’s testimony in order for a court to proceed with a conviction [15].

In Canada’s legal system, a woman’s voice is equal to that of a man in regards to court testimony. However, female complainants of sexual assault still face a stigma that is not attributed to complainants of non-sexual violence. Since sexual violence is a gender-based phenomenon, women are often disproportionately affected and negatively treated when they allege that they were sexually assaulted. The highly-publicized Jian Ghomeshi sexual assault trial was completed last week, and the judgment will be released on March 24th. Check back tomorrow for Ms. Suffragette’s analysis of the treatment of the female complainants and why the history of women’s positions in society is so important to the study of law.

 

[1] “Estimation of Voter Turnout by Age Group and Gender at the 2011 Federal General Election” (17 February 2016), online: <http://www.elections.ca/content.aspx?section=res&dir=rec/part/estim/41ge&document=report41&lang=e>.

[2] Sameena Nazir & Leigh Tomppert, Women's Rights in the Middle East and North Africa: Citizenship and Justice (New York: Rowman & Littlefield Publishers, 2005) [Nazir].

[3] Ibid.

[4] “The Facts: Gender Inequality and Violence Against Women and Girls Around the World” (17 February 2016), online: <http://www.advocatesforyouth.org/publications/publications-a-z/1556-the-facts-gender-inequality-and-violence-against-women-and-girls-around-the-world>.

[5] Nizar, supra note 2 at 44.

[6] Ibid at 114.

[7] Ibid at 44, 128, 278.

[8] Ibid at 278.

[9] Ibid at 54.

[10] Ibid at 52, 54.

[11] Ibid at 53.

[12] Ibid at 73.

[13] Ibid at 71.

[14] Ibid at 317.

[15] “Dubai sentences Norwegian woman who reported rape” (17 February 2016), online: <http://www.bbc.com/news/world-middle-east-23381448>.

Waiving Privilege by Putting State of Mind in Issue

In this video blog, I explore some common issues that arise when a party tries to rely on legal advice privilege in some way, and the opposing party suggests - as a result - that the privilege was waived because the client’s “state of mind” came in issue.  Several recent cases have done a good job of clearing up this doctrine (which is raised pretty consistently in civil proceedings), and I look at it in detail, trying to set out the ground rules in this area.

 

 

Reversing the Burden of Proof in Summary Conviction Proceedings

Talk about flying under the radar.  Two days ago, the Supreme Court of Canada dismissed the case of R v Goleski from the bench.  In the process, it confirmed that s. 794 imposes a burden of proof on the defendant to prove certain defences and excuses in EVERY summary conviction trial.

This is not a good thing.  To find out why, watch my v-blog.

 

Deflategate and the Importance of Standardized Measurements

What do Super Bowl related scandals have to do with the Magna Carta? Let’s take a look at Clause 35: “there shall be standard measures of wine, ale, and corn (the London quarter) throughout the kingdom.... Weights are to be standardized similarly.”  The importance of standardized measurements was important to society in 1215, and remains so today. If standardized ale measures reach a threshold of semi-constitutional importance, then surely football measures share the same significance. Enter the deflategate scandal.

NFL regulations require that footballs fall within certain inflation specifications [1]. In 2006 the NFL introduced a rule allowing each team to use their own balls while on offence, rather than the same balls being used by both teams. This means that the opposing team will only handle said balls in the event of a fumble or interception. Balls are inspected prior to each game by the referees to ensure they comply with the weight/size/air pressure specifications.

Last Sunday the New England Patriots defeated the Indianapolis Colts in the AFC Championship, which was the last obstacle between the Pats and the Super Bowl. Part way through the game it was noticed that the balls thrown by Patriots quarterback Tom Brady were not quite measuring up. The balls which had earlier passed inspection seemed to have been deflated, making them easier to grip, throw, and catch. The NFL investigation is ongoing, and a Patriots locker room attendant is now under the microscope after being caught on film taking the balls into a bathroom.

Rebel barons in 1215 understood the importance of fair measurement, as do the writers of the NFL’s “constitution”. Once the NFL investigation wraps up, we may confirm that measurement regulation has been snubbed by the Patriots. Or is this all a conspiracy?

Everyone from Jim Rome to Katy Perry has an opinion on this issue. Tell Ms. Magna Carta what you think! Has there been foul play? Should the presumption of innocence apply? Will you still cheer for the Pats, or are you a Seahawks fan? Comment below!

 

[1] http://static.nfl.com/static/content/public/image/rulebook/pdfs/5_2013_Ball.pdf

 

Do We Have the Magna Carta to Thank for Protection Against Unreasonable Search or Seizure?

The Canadian Charter of Rights and Freedoms guarantees several legal rights. Today we will focus on section 8 which sets out that “everyone has the right to be secure against unreasonable search or seizure” [1]. Searches include invasions of people’s bodily integrity, private property (items and land), vehicles, public surveillance, third party records, and communications [2].   

The Magna Carta is not credited with inspiring this specific provision, yet the Charter as a whole is said to draw from the articles of the Magna Carta. Our Charter explicitly lists many rights which were not granted under the Magna Carta, such as the right to be protected from self-incrimination, and equality rights. Yet it is inaccurate to state that the Magna Carta played no hand in the development of our right to be free from unreasonable search and seizure.

When you consider that the right against unreasonable search and seizure is a limit on the government’s power, as explained by Justice Dickson (as he then was) in Hunter et al v Southam Inc [3], this provision’s relationship with the Magna Carta becomes more apparent. “Unreasonable” search or seizure is what section 8 prohibits. A search or seizure will be unreasonable if it does not comply with the law, if the law authorizing it is not reasonable, or the otherwise lawful search or seizure is carried out unreasonably [4]. So, a warrantless search is presumptively unreasonable unless the Crown demonstrates otherwise. The principles derived from Clause 39 of the Magna Carta -- rule of law and due process -- are foundations upon which the prohibition on unreasonable search or seizure is grounded.

Clause 28 of the Magna Carta states that “no constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this”. While this seems like the equivalent of section 8 of the Charter, section 8 is interpreted as protecting privacy rights, whereas the emphasis in Magna Carta Clause 28 is on the right not to be deprived of property without compensation [5]. Although the objective of section 8 is the protection of privacy, property is protected by the prohibition on the state from interfering with a person or his property without legal authority, making these two provisions very similar.

[1] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11

[2] Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada (Markham: LexisNexis Canada, 2013) at 149 - 173.

[3] [1984] 2 SCR 145, 55 AR 291.

[4] Supra note 2 at 183.  

[5] Supra note 2 at 144; AE Dick Howard, Magna Carta: Text and Commentary (Charlottesville: University Press of Virginia, 1998).   

Online Supplemental Learning Aids

In just a few days, a new semester will start, and it seems as good a time as any to recognize that the world of legal education is changing faster than any of us can really keep track of.  When I went to law school - not as  long ago as you might imagine! - we made notes in class by hand, and were lucky if we had access to one of the few computers available in the law school's shared facilities.  Quicklaw was in its infancy; Westlaw didn't even exist.  CanLii was a glimmer in someone's imagination...

Today, students have access to a host of supplemental learning aids, and the rich variety of available resources is only going to keep growing.  The development of the flipped classroom, amongst other things, has created an incredible variety of podcast and other online material for students to use in helping them to decipher difficult topic areas.  I'm pleased to say that I've added to this myself.  Just this year, all of the material I developed for my Flipped Classroom in Evidence was placed online.  These capsules were created, and make the most sense, when watched within the context of the Flipped Classroom, but frankly, I think they can help anyone learn about Evidence law.  

And this is hardly the only resource available.  Those of you taking Administrative Law would be wise to bookmark Craig Forcese's Bleaching Law website.  He's posted an incredible array of material that explain difficult admin. law concepts in a way that can only supplement and enhance your classroom experience.

Really, this is just the tip of the iceberg.  Though it's mostly an American site.  Check out Legal Ed Web, a "gathering place" for videos of this type which includes Craig's videos, and soon enough, mine as well.  It has an amazing array of material relating to a growing assortment of law courses.

Legal education is no longer confined to what you hear in the classroom and what you can find in the library.  It is now very easy to supplement your learning experience and bolster your understanding just about anywhere you have a connection to the internet. I look forward to seeing how this experience will evolve.

Is that math more convincing

98% of respondents believe a statement that has math in it. OK - I made that up, but anytime someone puts math into a statement, it seems to convince people.

This poses many issues for the law of evidence, where the expert in the white coat can have an undue influence on jurors or judges. Or consider this dispute between Ashton Kutcher and the Village Voice.