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Apologies and the Law
It is now generally the case in English speaking Canada that an apology cannot be used in evidence in a civil trial. However this is not true in criminal cases.
In 2006, British Columbia enacted the Apology Act, S.B.C. 2006, c. 19, the first such legislation in Canada. Other provinces have subsequently enacted similar legislation so that all provinces except Quebec, New Brunswick and Prince Edward Island now provide similar protections. Such legislation had ample precedents in the United States and in Australia. (For a critical history and analysis of such legislation see the thesis of Graham Barr Disingenuous or Novel? An Examination of Apology Legislation in Canada.
Various grounds were argued as reasons to enact such legislation in Canada. Some argued that such legislation was good social policy in encouraging early and less costly resolution of disputes. Some referred to experience in the U.S. particularly in the field of medical malpractice where early apologies to patients coupled with early and fair offers of compensation had dramatically reduced volumes of litigation and the overall cost of compensating for medical errors.
Some argued that making an apology for causing harm was simply the “right thing to do” on moral grounds.
Some saw the enactment of such legislation as a step in moving towards less adversarial means of dispute resolution.
It is perhaps early days to assess the extent to which the actual experience in Canada with such legislation shows progress in meeting these aims.
However. because criminal law in Canada is exclusively under the jurisdiction of the federal government such legislation would have to be enacted by the federal government before such protections would apply to criminal proceedings.
In criminal law apologies made to a victim of a crime or perhaps to a related person are generally considered to be “admissions” which may be used in court to help prove the guilt of the party making the admission. In some situations where the person to whom the apology is made is considered to have some ability to control the laying of a charge, the more stringent legal rules which apply to the proof of confessions must be met.
In a case before the Supreme Court of Canada last year, the charge was one of sexual assault upon a child by a step father. An apology made in an email to the mother of the child was held by the Supreme Court of Canada to be admissible against him. R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688
Such decisions affirm the obvious point that in criminal matters, the courts are applying rules in the treatment of apologies from the rules that now govern civil matters in most provinces. Those considering the advisability of making an apology will obviously continue to bear this important distinction in mind.
Filed in: Litigation
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Court of Appeal Annual Report for 2009
This month the Court of Appeal has posted its Annual Report for 2009.
So how is the Court of Appeal doing? In fairness, the Annual Report does not seek to answer large questions about the quality of justice. Understandably there is no attempt to assess the quality of the decisions of the Court of Appeal, a task that must be left to academics and others. This report gives the statistics on the operations of the Court of Appeal and includes general updates on the operations of the Court and the Court’s plans for the present year.
The number of appeals are down from their level of say five or ten years ago. This is consistent with the decline in the number of trials in British Columbia and elsewhere. Without doubt one of the main causes for decline in use of the courts has been the cost of legal representation. The Court is mindful of this issue. It backs the pro bono duty counsel that appear in the civil Chambers. The report also notes that the number of civil appeals heard with at least one self-represented party more than doubled from 2008.
The financial burden of seeking redress in the courts is a well known issue for the government and for the Court but the government has not gathered specific data on these costs. Research is needed to measure the costs of litigation including appeals and to put those costs in a meaningful context, as for example by comparison to average family incomes and cost of living data .
So too there should be more data gathered on the speed at which appeals are determined. The Annual Report does not report on the average length of time that it takes to have an appeal determined from beginning to end although it would seem that this data is available. The court tracks the numbers of appeals disposed of compared to the number of new filings, and this figure hovers near 100% so that the Court is not falling behind in its work. The Annual Report also notes that decisions are handed down within six months of hearing in 84% of the civil appeals. However the longer delays may occur between the Notice of Appeal and the time of hearing.
On the criminal side, the Court has on May 14, 2010 announced a pilot project to establish a new regime to ensure that conviction and acquittal appeals are heard within one year of the filing of the notice of appeal. The pilot project has been developed in consultation with representatives of the federal and provincial Crown, defence bar and the Legal Services Society. The project is going to be monitored and feedback from those involved in the project will be obtained for consideration by the Rules Committee of the Court. Such a process provides a useful model to improve the civil side as well.
It is important to keep in mind that disputes in British Columbia are overwhelmingly resolved through negotiations. Only a very small fraction of disputes, perhaps on the order of one in a thousand disputes make it to the Court of Appeal. Although quite properly the Court’s immediate focus is on the cases before them, by far the greater influence on justice flows from the indirect effect of the Court’s judgments on other disputes. To the extent that the Court’s deliberations are predictable, principled, economical, and swift they will favour principled resolution of disputes throughout the province. Conversely where the result in court is unpredictable, or a result comes only after burdensome expense and delay, justice suffers.
These realities are generally clear to all those who have had first hand experience of civil disputes in the province. But improvement in the cost, speed, and level of public satisfaction will come only through initiatives which set specific goals and which monitor progress towards those goals, as for example with the criminal pilot project. It may be too much to expect that an Annual Report of the Court of Appeal should fulfill that function, but perhaps this could be undertaken by the government. There is no doubt that there would be a significant benefit from such an effort.
Filed in: Default, Litigation
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Defining Our Terms – Why we call Ourselves “Legal Counsel”
“Trial lawyer”
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%.
There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled.
Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier .
The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.
“Barrister”
Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society.
In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion see: http://en.wikipedia.org/wiki/Barrister#Differences
Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.
“Litigation Counsel”
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits. But many claims are resolved without litigation – by negotiation, mediation or arbitration.
“Legal Counsel”
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia. The functions that are restricted to members of the Law Society [from the definition of "practice of law", section 1 (1)] include:
a) appearing as counsel or advocate,
b) …
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
d) …
e) giving legal advice;
These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.
Filed in: Litigation, Resources
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Analyzing Issues in Disputes
I find it useful to break down the issues in disputes into:
- factual and evidentiary issues – what happened and how can that be shown
- legal issues – what does the law say about situations like this
- financial issues – what are the costs and benefits of various options for dealing with the matters in dispute
- tactical issues – issues of timing, the sequence of dealing with issues and procedural choices for resolving the dispute
- emotional issues – how the parties feel about the dispute
Lawyers in dealing with disputes have traditionally focused on legal issues and they have focused on the courts’ litigation procedures. But now, in a time when almost all cases outside court lawyers must also deal with this larger range of issues.
Of these different kinds of issues, the emotional issues are often the most important. Lawyers see many cases when the facts, the law, finances, and their tactical considerations all very much against them, but they will not settle. Anger or some other compelling emotion governs what they will do, and that emotion must be given at least as much attention as the other issues if settlement is to be achieved.
Lawyers and others often make the mistake of believing that settlement is, or at least should be, governed by the same rules of evidence, relevance and logic as the legal issues that are the substance of legal analysis and of the court process for adjudicating disputes.
But these different sorts of issues have their own dynamics and considerations, especially in the context of negotiations leading to settlement. Lawyers need to be alive to these differences and to expand the range of approaches that they bring to bring to the table.
For there is no doubt that the reality is that parties in dispute are affected by all of these sorts of issues and the skill of counsel is often in balancing the particular balance of trade-offs among these factors in coming to a settlement which best meets their clients’ interests.
Filed in: Litigation, Resources
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