JOHN SWAIGEN How to Fight for What's Right THE CITIZEN'S GUIDE TO PUBLIC INTEREST LAW i" m - i mm • ™ ^^— ~—/ ~ 1 CITIZENS AND THE ENVIRONMENT SERIES "John Swaigen has condensed everything that Canadian public interest advocates need to know about law but were too busy to find out." — Kai Millyard, director, Greenpeace Foundation. "It's a wonderful book of tremendous importance to anybody who ever wanted to take on a court or a cause." — Clayton Ruby, lawyer. "This is a remarkably thorough review of legal pitfalls and opportunities for public interest advocates, from an obviously experienced and committed public interest lawyer." — Brian Her, Law Union of Ontario. How to fight for What's Righ t THE CITIZEN'S GUIDE TO PUBLIC INTEREST LAW How to Fight for What's Right is a guide both for lawyers and for lay people that will steer them through the legal thickets they face when they take on government and business in the courts. This book will meet the needs of environmentalists, civil rights organizations, consumer groups, lawyers and legal staff of community law clinics — it is the guide that shows citizen groups how to use the legal system to their advantage. Some of the issues dealt with: • How to get your fight before the courts. • How to avoid opposition tactics aimed at keeping your case out of the courts. • What to say and what not to say when your case is before the courts. • The special problems faced by public advocacy lawyers when a case is before the courts. • How to stay out of trouble and out of court if the opposition decides to play dirty. • What to do in demonstrations and how to deal with harassment and intimidation. • How to avoid being silenced by opposition threats of libel and slander. John Swaigen is a lawyer with the Ontario Ministry of the Environment. He was a public advocacy lawyer for over seven years and has frequently been involved in citizen-inspired court actions against big business and government. kJI CITIZENS AND THE ENVIRONMENT SERIES Canadian Environmental Law Research Foundation James Lorimer & Company, Publishers 0-88862-422-0 paper 0-88862-423-9 cloth How to Fight for What's Right How to fight for What's Right THE CITIZEN'S GUIDE TO PUBLIC INTEREST LAW John Swaigen with Richard E. Woods and Alan D. Levy James Lorimer & Company, Publishers Toronto, 1981 Copyright® 1981 by James Lorimer & Company All rights reserved. No part of this book may be reproduced or trans- mitted in any form or by any means, electronic or mechanical,including photocopying, or by any information storage or retrieval system, with- out permission in writing from the publisher. ISBN 0-88862-423-9 cloth 0-88862-422-0 paper Canadian Cataloguing in Publication Data Swaigen, John, 1944 — How to fight for what's right Includes index ISBN 0-88862-423-9 bd. ISBN 0-88862-422-0 pa. 1. Courts—Canada—Popular works. 2. Procedure (Law)—Canada—Popular works. I. Title. KE 8212. Z82S92 347.71' 05 C81 -094327-1 James Lorimer & Company, Publishers Egerton Ryerson Memorial Building 35 Britain Street Toronto M5A 1R7, Ontario Printed and bound in Canada. 6 5 4 3 2 1 81 82 83 84 85 86 DEDICATION To Joyce Young, this book's inspiration and mine. How to Fight for What's Right is the second in a series of books published by James Lorimer & Company in association with the Canadian Environmental Law Research Foundation (CELRF). Poisons in Public, published in 1980, was the first title in the series. CELRF and its associate legal clinic, the Canadian Environmental Law Association, were founded in 1970 by a concerned group of lawyers, scientists and conservationists. CELRF's aim is to use the law to halt environmental degradation and promote sound environmental plan- ning. In seeking to improve the quality of the environment through legal reforms, CELRF requires the support of concerned individuals and corporations. Tax-deductible donations to support long-range en- vironmental law research and reform are essential to CELRF's con- tinuing work. The foundation's registered charitable receipt number is 0380584-53-13. Canadian Environmental Law Research Foundation 5th Floor South 8 York Street Toronto, Ontario M5J 1R2 (416) 366-9717 CONTENTS Acknowledgements xi Preface xiii Introduction xv Part I: Getting into Court 1. The Special Interest Requirement: Standing 3 What is the standing barrier? 3 What are the requirements for standing? 3 How can standing be secured? 4 Civil actions and standing 4 Private prosecutions and standing 7 Standing before government agencies 8 Judicial review of and appeals from decisions of boards and tribunals 10 Conclusion 11 2. Intervention in Court Proceedings 12 What is the amicus curiae? 12 How does the amicus curiae argue a position? 13 How does the amicus curiae work in courts in Canada? 14 What other forms of intervention are available? 17 Getting the government to bring important matters before the courts: the reference 19 What is the reference? 19 How does the reference work? 21 How can the constitutional reference be used? 22 Is standing a problem? 23 What about costs? 23 What kind of evidence can be introduced in a reference? 23 Conclusion 24 3. Test cases 25 What should lawyer and client discuss before going into a test case? 25 How do test cases arise? 26 Vll viii How do the courts feel about test cases? 27 What is the key to a successful test case? 30 Conclusion 31 Part II: Before the Courts and Tribunals 4. Who Pays? 35 What are the costs and who is liable? 35 How do the courts award costs? 36 Are there less expensive alternatives? 38 Are there costs involved with boards and tribunals? 39 What costs can an advocacy lawyer face? 40 When will costs be awarded against a lawyer? 41 Conclusion 44 5. What to Do and Say and What to Avoid 46 What is contempt? 46 Contempt, public interest groups and the media 46 What kinds of contempt are there? 49 Civil contempt 49 Criminal contempt 50 What activities are classified as contempt? 50 Misbehaving in court 51 Disobeying a court order 52 Obstructing justice 52 Scandalizing the court 52 The sub judice rule 54 The sub judice rule in detail: 55 What is a prejudicial statement? 55 What is the difference between reporting and commenting? 56 What is the proper conduct for an individual in regard to contempt? 57 What about individuals and the media? 58 What is the liability of the speaker? 59 Conclusion 61 6. Legal Traps and Tactics: Maintenance and Champerty 62 What are maintenance and champerty? 62 ix On what grounds can a maintenance suit be launched? 64 What about the liability of the lawyer? 66 What is the liability of the legal clinic or public interest group? 67 Some troubling aspects of maintenance 68 Conclusion 69 7. Seeking an Adjournment 70 Why seek adjournments? 70 How do courts and boards respond to requests for adjournments? 72 How should an adjournment be requested? 73 What happens if the request for an adjournment is denied? 74 Can a denial be successfully challenged? 75 Conclusion 76 Part III: Keeping Out of Court and Out of Trouble 8. Demonstrations, Protest and the Law 81 What rights does a demonstrator have? 81 Lawyers and demonstrations 82 What does the law say about the right to demonstrate? 84 Freedom of speech 85 Freedom of assembly 92 What about other restrictions on freedom of speech and the right of assembly? 95 What are the "do's and don'ts" on picket lines? 96 What's the best way to respond to police? 98 What is the role of the lawyer at demonstrations? 99 9. Conspiracy 101 What is the law of conspiracy? 101 How can conspiracy be used against citizen advocacy groups? 102 Are public interest groups liable to criminal conspiracy charges? 106 What is civil conspiracy? 106 What is conspiracy to injure? 109 Conclusion 111 10. Defamation, Libel and Slander 113 Defamation and the distinction between libel and slander 113 Are libel and slander threats to public interest groups? 115 How effective are defamation suits launched by public interest groups? 115 How to recognize defamation 116 How fine is the distinction between libel and slander? 119 What happens when groups are defamed? 119 What defences are there to a defamation suit? 121 What is fair comment? 121 What is the doctrine of privilege? 122 What will an apology do? 123 How can defamation be avoided? 123 Conclusion 124 11. Charitable Status and Public Interest Advocacy 125 What is charitable status? 125 How can charitable status be revoked? 126 How do the courts interpret the law in regard to charitable status ? 127 Can a public interest group lose its charitable status? 129 Conclusion 130 Conclusion 131 Notes 134 Glossary 145 Further Reading 146 ACKNOWLEDGEMENTS This book was made possible by grants from the Donner Canadian Foundation and the Canadian Human Rights Foundation. It is a project of the Canadian Environmental Law Research Foundation. Two people deserve special thanks: Michael Perley, Executive Di- rector of CELRF, shepherded the book through all its stages with his usual quiet efficiency. Joyce Young edited the book and imbued it with her own experience and insights into the problems and possibilities of public interest activity. I would also like to express my appreciation to the members of CELRF's editorial committee for their support and suggestions—Ron Mann, Rene Sorell and Alan Levy; to Bill Law, who guided the project through the press, and to several people who commented on drafts of individual chapters—Paul Copeland, Brian Her, Mary Jane Mossman and Clayton Ruby. J.S. PREFACE In 1974, a real estate developer sued a citizens' group for $500,000 for conspiracy to interfere with its business when the group asked its Municipal Council to prevent development of ravine lots along the Credit River. When the case came to trial four years later, the devel- oper's lawyers abandoned the suit against them. Had the case against the citizens' group been successful, their homes and life savings would have been at stake. The right of citizens to voice concerns to their elected representatives could have been endangered. Even though the case was dropped and costs were awarded individually to the citizens, they were under a cloud for four years. The suit effectively hobbled their work as a group over that period. Rather than submitting briefs to various public agencies on matters of environmental concern, the group was forced to spend most of its energies trying to raise funds for the legal costs of its defence. In 1975, a community legal clinic funded in part by a federal gov- ernment grant, a grant from the City of Toronto and a grant from York University, provided legal services to members of the public who would not necessarily have been reached by the Ontario Legal Aid Plan. The clinic developed a trust fund into which tenants paid rents rather than pay them to their landlord because the landlord failed to keep the premises in good repair. In court, the landlord was successful in an application to evict the tenants. The court also ruled that the trust fund was not authorized by the Ontario Landlord and Tenant Act. The landlord's lawyer asked the judge to award costs against the tenant's lawyer who was one of the staff of the clinic. The judge refused to order the lawyer to pay the court costs personally, but only after considerable discussion. He admitted that the clinic was trying to fill a social need, but felt that there were dangers inherent in an organi- zation undertaking and sponsoring litigation without the need to have regard to legal costs. Environmental groups, civil rights organizations, consumer groups, the poor and their lawyers face special problems seldom encountered xiii xiv How to Fight for What's Right by the average litigant or his lawyer. Many of the lawyers practising in community clinics or specializing in public interest law are young and inexperienced. It is difficult for them to advise their clients about problems that might arise or to protect their clients and themselves from sophisticated forms of harassment designed to reduce their ef- fectiveness. Very little has been written on the subject of some of these forms of harassment, as they have not been a serious problem until recently when public interest litigation became a more important part of the legal system. The staff of the Canadian Environmental Law Association and the Canadian Environmental Law Research Foundation have had eight years of experience in the practice of public interest law and have been called upon frequently to deal with such questions as what can I say to the press while my case is in progress? What is my liability if I lose my case? Can I legally join a demonstration or picket line? Is it ethical to set up a test case? How to Fight for What's Right: The Citizen's Guide to Public Interest Law is a book that was written to answer these and other questions and give citizens and their lawyers a fighting chance against big, wealthy, aggressive and occasionally unscrupulous opponents. Michael Perley Executive Director Canadian Environmental Law Research Foundation INTRODUCTION The past two decades have witnessed a tremendous growth in efforts to implement social change and redress social injustices. The Sixties were a time of rebellion, demonstrations and activism. Such dormant issues as the civil liberties of minorities, pollution and women's lib- eration were raised. It was a time of exploring new values, seeking new lifestyles and trying to create a new and more humane society. This social revolution left its mark on the Seventies. Existing public interest organizations that had been established to promote better race relations or protect consumers broadened the scope of their interests and added an advocacy wing. They turned to more aggressive tactics than they had used in the past. When existing groups failed to do this, new "activist" groups sprang up to fill the void. New laws were passed creating public rights — rights that required enforcement to be effective. Lawyers were also caught up in the process. New areas of legal practice began to emerge in the Sixties, focusing on poverty law, civil rights, public rights and the representation of public interest groups. In the Seventies, public interest law grew to include efforts to improve the administration of justice and the accountability of government agencies. Some young lawyers in private practice began to build their clientele largely from a new class of legal clients: penitentiary prisoners, im- migrants, minority groups, the poor, the elderly, community groups and other public interest groups. The changes in society were reflected in an increased amount of pro bono work undertaken by large private law firms. This often required reorganization of the law firm's internal structure and created a tension between the requirements of public interest law and the requirements of serving private clients such as government and large corporations. XV xvi How to Fight for What's Right Within a few years new "models" of legal practice emerged. In situations where legal services could not be financed by clients because the issues affected everyone (for example, protection of the environ- ment), or because the potential clients were too poor, new types of law offices were set up. Often referred to as "storefront" offices, they were financed by such charitable foundations as the Ford Foundation in the United States, by local Bar Associations and by new government funding programs aimed at increasing accessibility of legal services to the public. Finding new and more effective strategies to speed social change or redress grievances has proved a major challenge for both public action groups and the legal profession. Today public interest groups are taking to the streets, the backrooms of Legislatures, the boardrooms of corporations and the courts with increasing frequency and sophis- tication. But in meeting these challenges, new problems arise. Such institutions as the charitable association and the private law firm, orig- inally designed to fulfill one function, are being remoulded to meet contemporary needs. The courts, too, are increasingly being asked to change their focus from resolving private disputes to upholding public rights. More and more, the attempt to redefine roles is bringing public interest groups and their lawyers into conflict with the powerful in- terests in society. Because the emerging roles and rules are unclear, there is also a risk that groups and lawyers may come into conflict with present laws and, in the case of lawyers, with traditional inter- pretation of legal ethics. For both, the challenge is to develop effective strategies without running afoul of the law. With that goes the challenge to anticipate and surmount the countertactics and strategies rapidly being developed by their opponents to intimidate and silence them. As one U.S. writer, Gordon Harrison, has said: Along with the normal risks of bruises from hard-fought lawsuits, public interest law firms are vulnerable to political attacks. Adversaries in law, as every litigator knows, will now and then resort to tactics in and out of the courtroom to weaken and discredit an opponent. Lawyers who defend unpopular clients often find themselves harassed. The NAACP Legal Defense Fund and California Rural Legal Assistance have suffered political attacks. Some powerful opponents who feel themselves badly and perhaps unfairly injured may not only fight the issues, but impugn the competence and motivation of opposing counsel. Introduction xvii Ambiguities in traditional codes of professional ethics for lawyers, coupled with confusion about how they would apply to public interest cases, make public interest lawyers particularly susceptible to this kind of attack. We generally expect lawyers to be professionals who won't make value judgments: whose services are simply available for hire. The lawyer will take cases regardless of whether he agrees with the viewpoints of his clients. He will take these cases because he has to pay his bills and make a profit to continue practising law, and because he has been taught that everyone has a right to his day in court and to a lawyer. How long and hard he will fight for his client depends upon the strength of his client's case, what his client hopes to gain for himself and the ability of his client to pay his fees. In public interest cases, however, there are other considerations, and the rules of the game change. The lawyer may represent only certain classes of clients or take only cases that further a particular set of goals. The lawyer and the client may both agree that even if the private benefit sought by the client is achieved, the case will be con- tinued in an attempt to establish the principle for which the client is fighting or to protect some broader interest. Perhaps no money will change hands. And a case may be fought even though everyone knows it is unlikely to succeed, because even a lost case may lead to social and legal reforms. Opponents sometimes try to seize upon these differences between "private" law and "public interest" law and magnify them. They try to show that professional ethics, developed primarily in the context of defending private property and financial interests, are being violated by the public interest lawyer. They may argue to the court or tribunal that the case is an expensive undertaking for their client, while it costs the public interest client nothing or is paid for out of the public purse. They may insinuate or state boldly that this is an abuse of the court's or tribunal's process. They may imply or state that the lawyer does not really represent the client but some external, sinister force. Sometimes opponents go so far as to suggest that the client's case is not the true reason for the lawyer's appearance, and that he has ulterior motives — to change or even overthrow the present system. They may seize upon ambiguities in the present status of public interest legal clinics and the changing role of public interest lawyers and report them to the Law Society for so-called unethical practices, such as "advertising," "soliciting," "touting" and practising law without a licence. They may try to convince government agencies to stop funding xviii How to Fight for What's Right a legal clinic or public interest association, or lobby the government to revoke a group's charitable status. Usually these efforts are fruitless. Many government agencies and even some members of provincial Law Societies are aware of the widespread support for public interest activities and public interest law. They recognize the need to remould the law and the legal system to deliver legal services to people for whom the law was not previously accessible. Professional codes of ethics usually make some provision for lawyers to take unpopular cases and represent poor and unpopular clients. Only experience will show whether it is necessary to develop new codes of ethics for public interest cases, or whether traditional ethics can be interpreted to include the kinds of problems discussed on the following pages. This guide will be useful to environmental groups, civil rights or- ganizations, consumer groups, the poor, to the lawyers and other staff members of community legal clinics and storefront law offices, and to lawyers in private practice taking public interest cases. You face special problems seldom encountered by the average litigant or his lawyer. You are expected to anticipate and deal with problems that are rarely experienced by lawyers in private practice — problems like maintenance and champerty, revocation of charitable status, interven- tions and constitutional references, and standing. You are trying to adapt private laws and remedies to public problems, and often that is like fitting a round peg into a square hole. You are addressing new social and legal issues, and you don't know where you stand because the questions have never before arisen in this context. There are handbooks on how to lobby effectively, how to organize a community group, how to raise funds, how to get publicity, and many other aspects of organizing a successful public interest campaign. To my knowledge, this is the first book in Canada on many of the legal issues that arise in public interest advocacy. Throughout, I have tried to describe only the law relating to various public interest ad- vocacy strategies and tactics, without commenting on their propriety or effectiveness. My interest here is the legal implications of tactics rather that their morality. I hope public interest groups will use this book to develop new ways of using the law and the courts to attain their ends, and that lawyers will be better able to anticipate their clients' needs and respond more quickly to requests for legal advice on public interest matters. The guide is not intended to provide legal advice in any specific case, and Introduction xix it is not a substitute for a lawyer. This book will give groups a better understanding of how to keep out of legal entanglements and a feeling for when to seek a lawyer's advice. If you are a lawyer, it is no substitute for thorough research or consultation with other lawyers who are more familiar with the specific issues raised here. I hope this book will encourage individuals, groups and lawyers to engage in public interest advocacy and will help make their efforts more successful and freer from harassment. I particularly hope that readers will be encouraged to use the legal system to promote social change. Effective public interest advocacy is central to effective gov- ernment and to attaining the ideals of democracy. No public agency alone can represent the public interest. The "public interest" is made up of many separate public and private interests, and public interest advocates can ensure representation of those interests that would not be protected through traditional political or legal procedures. The legal system can no longer be the exclusive preserve of private property and financial interests. In seven years of practising public interest law, I found I had to deal with many issues and problems that seldom arise in traditional char- itable activity or in the traditional practice of law. There were many questions and worries. What can I say to the press while my case is in progress? Will my group lose its charitable status if it takes a case to court? What is our liability if we lose? Can we legally join a demonstration or picket line? Is it ethical to set up a test case situation? How can we raise important issues in the courts or enforce the law without first being adversely affected by the very injustice we want to challenge? Solutions to these practical, day-to-day problems are not easy to find. Many of them are new problems that have only begun to sprout as the Canadian public interest movement gained its current momentum and sophistication. There has been little time to investigate the legal problems and opportunities that spring from public interest advocacy. This book covers three important aspects of public interest law: how to get into court to further your cause; how to anticipate and deal with some of the problems that arise during public interest cases before courts and tribunals; and how to keep out of trouble and keep out of court. It is intended to be of use primarily to people who have no legal training, but it is also written for lawyers who represent public interest groups, legal workers in community legal clinics and "storefront" xx How to Fight for What's Right lawyers. I have assumed that readers will know some common legal terms, but many other legal terms are explained in a glossary at the conclusion of the book. I have not attempted to describe the different kinds of law, the different levels of court or the various court systems. The basics of the legal system have been described in other books. Nor have I described the rules of evidence and the rules of procedure that apply to prosecutions for criminal offences, prosecutions for offences that may result in fines or imprisonment, or lawsuits for compensation or injunctions. Regulatory boards, royal commissions and tribunals all have different rules, and finding your way through that maze may require another book! What I have done is to describe the issues, problems and situa- tions — the questions of ethics and the dilemmas — that are peculiar to public interest advocacy. The guide is divided into three parts. The first part details various ways of getting public interest cases into the courts. In the past, cit- izens' groups have run into severe legal roadblocks in their efforts to use the courts. Part II covers many of the problems that might arise when you are in court or intervening before boards and tribunals. The purpose of Part II is to forewarn you and to help you handle these problems if and when they arise. But going to court is only one form of advocacy. Organizing dem- onstrations, writing briefs, books and articles, lobbying politicians, issuing press releases and many other activities make up the spectrum of public interest advocacy. As a result of these activities you may inadvertently break the law and find yourself in a courtroom as a defendant. Part III deals with how to keep out of court and out of trouble. It points out some of the activities and mistakes that may leave you open to charges or lawsuits by others. You may have the impression that working in public interest ad- vocacy is like walking through a minefield. It isn't. The problems raised are the exception rather than the rule. The purpose of the guide is to help you avoid these problems in the first place, and to help you deal with them if they do arise. The chances of encountering the kinds of harassment described are still very small in Canada, particularly if you attack the issue rather than the person and recognize when you need legal advice. Introduction xxi This book is intended to encourage more public interest activity. As a spokesperson for the Canadian Environmental Law Association (CELA), my job frequently involved speaking out against actions by government agencies and corporations on behalf of both CELA and individual clients. I represented groups in courts and before boards and tribunals, and gave hundreds of interviews on radio, television and in the press. During that time, I was never subjected to any serious harassment, nor were any of my clients. This was not due to any particular brilliance on my part, but merely to the fact that most op- ponents play fair most of the time. Knowing something about the legal system and the laws affecting public interest advocates will enable you to use the law to further your goals and speak out on today's pressing issues without fear of running afoul of the law. Parti: Getting into Court 1. The Special Interest Requirement: Standing This section proposes some innovative ways of getting your issues before the courts — methods that are particularly relevant to public interest lawsuits. People with a private financial or property interest in the outcome of a case have an automatic right to take legal action or be heard by boards and tribunals; public interest groups do not. WHAT IS THE STANDING BARRIER? The standing barrier has been imposed by the courts to prevent people from meddling in the affairs of others. It requires that to take legal action a person must have an interest in the subject matter of the legal proceedings that is greater than and different from that of the general public. While the courts feel the standing requirement reduces frivolous suits and prevents the courts from becoming overloaded, it has also proved to be one of the most serious barriers to public interest lawsuits. Before deciding to take legal action the public interest litigant and his lawyer should be familiar with standing. Before you decide to launch a lawsuit or make an appearance before a board, a tribunal, a commission of inquiry or some other adminis- trative agency that is holding public hearings, you should ask yourself whether you have "standing." If there is any doubt, come prepared to explain why you think you do. WHAT ARE THE REQUIREMENTS FOR STANDING? There are different requirements for standing, depending on the kind of legal action you intend to take. Generally, there are few restrictions on the right to prosecute an offence under our federal or provincial statutes, but standing in civil suits may depend on showing that you have a private interest to protect or have suffered some personal harm 3 4 How to Fight for What's Right from the violation of the law. Not everyone has the right to sue or to appear before boards and tribunals. Only those who have a "special interest'' have this right unless the court or board grants the privilege of participating. This right of access is called standing or locus standi. The courts started to place restrictions on standing late in the last century for a variety of reasons: among them, to prevent people from meddling in matters that were none of their business, to avoid the courts becoming overloaded and to assist the government in carrying out its responsi- bilities without too much interference. These restrictions have turned out to be one of the main barriers to public interest litigation, and potentially a bar to representation of the public interest before admini- strative agencies that hold public hearings. In this chapter, we will briefly describe the different standing rules governing various kinds of legal proceedings and public hearings to help you determine whether you will automatically have standing, and if not, the kind of interest you will need to establish to obtain standing. Because the "special interest" test was developed in civil suits, and this is where standing restrictions are most prevalent, we will start with a description of the kind of interest required for standing in civil actions. HOW CAN STANDING BE SECURED? Civil actions and standing If you are suing to vindicate some harm done to you personally, or to protect a financial or property interest, standing is not usually a problem. However, if you are seeking to vindicate or protect a public interest like environmental protection, you may not have standing to use the courts. If you are asking the court to review the legality of some action by a government department or agency (judicial review) or suing to stop some public nuisance (harm to the public in general or to public property), you may not have standing. Traditionally, the courts have said that no one may launch a lawsuit to vindicate a public interest (as opposed to a property or economic interest), unless: (i) he can show that a statute is intended to give him a special pro- tection or benefit that has been invaded; or (ii) the interference with the public right is also an interference with his private rights; or (iii) although no private right is affected, he can show some special damage or interest beyond that of the general public. 1 The Special Interest Requirement: Standing 5 Otherwise, only the Attorney General can sue. In theory, the Attorney General has a special interest in enforcing the law for the benefit of the general public, since he is the government's chief legal officer. Therefore, when you see the law being broken by a government de- partment or agency, but you have no financial or property interest to protect or suffer no harm greater than the rest of the community, the proper procedure is to ask the Attorney General to sue. This process assumes that the Attorney General is above politics. However, the Attorney General is a member of the Cabinet, and may not be willing to sue a department or agency of his own government. He might be equally unwilling to sue the kinds of large, powerful corporations whose unlawful activities are so widespread that they affect the general public. For example, if the corporation gives a great deal of financial support to the political party that forms the government or if a suc- cessful lawsuit for pollution would cause a company to shut down one of its factories and put many of its employees out of work, the Attorney General might be very reluctant to enforce the law. In fact, experience has borne this out. When a cement company owned by a prominent supporter of the Progressive Conservative Party was destroying unique sand dunes on the edge of a provincial park, it was two private citizens, not the Ontario government, who launched the 1973 lawsuits that put an end to this practice. The provincial Attorneys General have rarely filed suit against major industrial polluters or against public agencies that appear to be breaking the law. In cases where the Attorney General has refused to sue, judges have ruled that you cannot challenge this decision. You may, however, ask the Attorney General to allow you to sue on his behalf. This is called a "relator" action, and any person can sue, despite a lack of standing, if the Attorney General gives permission to do so. In this case, you launch the action in the Attorney General's name, although he is a party in name only. For example, a lawsuit launched by George Brown against the Widget Company of Canada Limited would be filed as "Her Majesty the Queen on the relation of George Brown v. Widget." You are responsible for all aspects of the action, and for paying the costs of your opponent if you lose (see chapter 4 on costs). Occa- sionally, an Attorney General has agreed to lend his name to a relator action; for example, when a citizens' group devoted to preserving parkland attacked the approval of a Vancouver housing subdivision in 1964. 2 6 How to Fight for What's Right This standing barrier has been eroded in recent years, since the Supreme Court of Canada made two exceptions to the rule in 1974 and 1975. As a result, it is no longer clear that the Attorney General is the only person who can sue to redress a public wrong, or that you must ask the Attorney General to sue and be refused before the court grants you standing. For many years, there had been an exception for municipal ratepayers seeking a court ruling that municipal bylaws are invalid or that expenditures by municipal councils are illegal. In 1974 and 1975, the Supreme Court of Canada created further exceptions. It recognized the standing of a taxpayer to challenge the constitutionality of the federal government's official languages legis- lation, 3 and it gave a citizen of Nova Scotia standing to challenge the constitutionality of provincial censorship legislation. 4 Whether these two cases merely created yet another narrow exception (i.e., challenges to the constitutionality of legislation) or whether they declared that the court has discretion to grant standing in all types of public interest cases is not yet clear. In most provinces, the courts have taken the view that they now have discretion to grant or deny standing in any case, even if the plaintiff lacks a "special interest." However, in 1976, the Ontario Court of Appeal appeared to say that its discretion was limited to constitutional cases. 3 In 1978, on the other hand, the Ontario Divisional Court interpreted that ruling to mean that the discretion of Ontario courts is broader than constitutional cases, but narrower than will allow the court to grant standing in all public interest cases. In this case, one of the judges stated that the Ontario courts have discretion to grant standing in any case in which the validity of a statute is questioned, while another judge stated, "I believe that it is in the discretion of the court to consider whether status should be given in any particular case." 6 Even though it is still uncertain whether a private citizen or public interest group will be granted standing to launch a public interest lawsuit, it is now clear that once you reach the courtroom the court will likely rule on the merits of the case (that is, decide whether there has been a breach of the law) whether or not it grants standing. This is a result of a suggestion by the Supreme Court of Canada. By suggesting that the courts should hear the merits of the case at the same time as they consider whether the plaintiff or applicant has standing, the Supreme Court has reduced the negative effects of the standing rule. The Special Interest Requirement: Standing 7 This approach may not make much sense logically, since if a person does not have standing he should not be in the court to begin with, but it seems to ensure that for practical purposes the courts will make a ruling in most cases on whether the law has been broken. That way, the court will rule on the legality or illegality of an activity that is challenged regardless of the plaintiff's standing. This is helpful to public interest groups, but it does not make standing irrelevant. Ar- guments about standing may still greatly increase the cost and lead to delays in hearing the merits of an action. Private prosecutions and standing Standing is not usually a barrier to a private prosecution. (Normally, the police and other law enforcement officers enforce the law, but occasionally private individuals will decide to enforce statutes them- selves. These are known as "private prosecutions.") Generally, any member of the public may prosecute offences under provincial statutes designed to protect public health and welfare (for example, highway traffic, public health and consumer protection statutes) and may pros- ecute many criminal offences, without showing that he or she has any private interest to protect or has suffered any personal harm from the breach of the statute. That is, there is usually no restriction on standing. For example, any member of the public can prosecute politicians for improper electioneering or for breaching conflict of interest legislation by voting on matters in which they have a financial interest. Corpo- rations can be prosecuted under statutes prohibiting pollution or mis- leading advertising. Tenants can prosecute their landlords for ignoring their statutory duty to keep premises in good repair. There are some exceptions. For example, some provincial statutes state that prosecutions may not be initiated without the consent of the Cabinet minister who administers the legislation. In any case, prov- incial Crown Attorneys have the right to take over the prosecution from a private complainant (you) and proceed with it themselves or halt it. However, unless a provincial statute specifically states that a private prosecution is not allowed, any member of the public may lay charges and prosecute on his own or with the help of a lawyer, and the Crown Attorneys will seldom interfere. This right of private prosecution is an important safeguard against the refusal of government officials to enforce their own legislation, as the private citizen can always take legal action if the police or other government agencies won't. 8 How to Fight for What's Right Standing before government agencies Many important decisions affecting the public interest and private interests are made by special government agencies or by politicians or civil servants on the basis of recommendations from these agencies. Often these decisions or recommendations are made after the agency holds public hearings. Agencies that hold public hearings take many different forms and fulfill many different functions. For the sake of simplicity, we will generally refer to them throughout this book as "boards" or "tribunals." Sometimes, these boards and tribunals en- force the laws. If a used car dealer rolls back the mileage on a car, a pesticide sprayer who is supposed to be dusting crops sprays a provincial police picnic by mistake, or a collection agency unduly harasses someone, they may be brought before a board or tribunal with authority to decide whether their licences should be suspended or revoked. Other boards and tribunals decide whether to issue licences and if so whether to impose conditions on the licence (for example, a requirement that a travel agency carry insurance to reimburse cus- tomers who have paid for tours that are cancelled or accommodation that isn't available). The law is usually vague about who may be a party at public hearings held by boards and tribunals. Usually, the legislation that establishes the board or tribunal specifies that certain people who are directly affected by its hearings have the right to be a party, and gives the board or tribunal the discretion to grant standing to anyone else. For example, the statutes establishing licensing and regulatory boards usually give automatic standing to the business applying for a licence or whose licence is under review and authorize the board to give standing to anyone else it wants to hear from. In Canada, standing before such boards has rarely been a problem. They are usually very liberal and allow almost anyone to appear before them. This has also been true of most kinds of tribunals and special in- quiries. But there have been occasional problems. For example, at a coroner's inquest into the suicide of a prison inmate in solitary con- finement, the coroner refused to allow a lawyer to appear before him representing other inmates. The inmates had knowledge of the circum- stances of the suicide and wanted to show that the harsh conditions of solitary confinement had driven the prisoner to suicide. 7 In another case, two community groups were excluded from a ju- dicial inquiry into the propriety of a $35,000 political donation from a garbage disposal company to the Ontario Progressive Conservative The Special Interest Requirement: Standing 9 Party, which formed the provincial government. The donation was given in 1974 while the firm was trying to win approval for garbage disposal permits at Maple and Stouffville from the same provincial government. Two of the three permits were issued to the company a few months after the political contribution was made. The company's application for a third permit was before the Environmental Assessment Board when the donation was brought to light. An internal company memorandum was made public that stated that the $35,000 donation was to be "part of the program to ensure the viability" of the Maple waste disposal site application. The Ontario government responded by setting up a Royal Commission to determine whether the donation involved any corruption. Residents of Stouffville and Maple had hired lawyers to argue against the first two waste disposal permits at earlier hearings before the En- vironmental Hearing Board back in 1973 and 1974, and also before the Environmental Assessment Board (the successor of the EHB). When the judicial inquiry was announced, the Stouffville and Maple community groups sent their lawyer to appear at the judicial inquiry. Mr. Justice Samuel Hughes, the judge in charge of the inquiry, denied both groups standing. The Maple group decided not to challenge the denial of standing, but the Stouffville residents challenged it in the Ontario Divisional Court. The court ruled that if there was any possibility that wrong- doing was involved in the permits being issued, concerned citizens should be given standing. The court noted that people who had par- ticipated in the original applications before the Environmental Hearing Board, and who had previously made allegations of impropriety in connection with these applications before they had even heard about the $35,000 donation, had a substantial and direct interest in the matter. The court ordered Justice Hughes to let the Stouffville group take part in his Royal Commission. 8 In the rare cases where boards and tribunals have denied groups or individuals standing, the courts have usually overruled this decision. Whether the courts will force a board, tribunal or commission of inquiry to grant standing to groups or members of the public may depend upon a variety of factors, including: the precise wording of the statute es- tablishing the board and setting out standing requirements; the purpose of the statute and of the public hearings; whether the parties are knowl- edgeable about the facts to be investigated at the public hearings; whether, in the court's opinion, the parties have a contribution to make 10 How to Fight for What's Right to the hearing; and whether their interests will be directly affected by the outcome. Judicial review of and appeals from decisions of boards and tribunals The legislation that establishes boards and tribunals frequently provides for appeals from their decisions. In addition, unless the legislation prohibits it, the courts have an inherent right to review whether the boards and tribunals treated all the parties before them fairly and in accordance with certain minimum rules of "natural justice." Even when legislation prohibits this kind of review, the courts usually have the right to review whether a board has acted within its jurisdiction. If it is unclear who may be a party to public hearings before such boards and tribunals, it is even less certain who may have standing to challenge the actions or decisions of boards and tribunals. Statutes seldom spell this out clearly. Lawyers and community groups might assume that since they have standing at public hearings, they are automatically entitled to standing in subsequent appeals or judicial review proceedings. This is far from certain, especially when the orig- inal grant of standing may have been discretionary and may not have been subjected to any objections or discussions during the hearings. There are very few instances where the standing of someone who has taken part in public hearings and wishes to take part in subsequent proceedings has been challenged. Recent cases treat standing at sub- sequent proceedings as a matter to be considered in the circumstances and on the merits of each case. In deciding, the court might consider such factors as : the individual's or group's previous history of in- volvement in such proceedings; their previous activities and interests in relation to the issues dealt with in such proceedings; the contribution they made to the hearings from which the appeal is being taken; and, of course, the intent of the statute and the precise wording of the statutory provisions governing the particular board or governing the proceedings arising out of the board's hearings. 9 Even if participation in earlier hearings doesn't give an absolute right to participate in sub- sequent proceedings, it could be argued that a grant of standing at public hearings creates at least a prima facie right or a rebuttable presumption of standing at subsequent proceedings. Or it could be argued that this participation shifts the onus to the person challenging the intervenor's locus standi. The Special Interest Requirement: Standing 11 CONCLUSION The liberal view of standing taken today by boards and tribunals, and the liberal approach of the courts in granting standing to parties in appeals from the decisions of boards and tribunals, are not cause for complacency. Regulatory boards and tribunals or commissions of in- quiry are increasingly making decisions or recommendations on matters of broad public interest. The fact that most boards have taken a liberal approach in recent years may lull some lawyers and community groups into a false sense of security. You should be aware that the businessmen trying to convince tri- bunals to issue them a licence or confer some other special benefit or privilege are developing a tendency to argue against grants of standing at the outset of hearings. Both the boards and the applicants for licences or privileges know that community groups and concerned citizens who are granted standing at public hearings may use this status to claim further entitlement to standing in subsequent political, administrative and court proceedings. For instance, developers seeking a re-zoning will seek to prevent ratepayers from appearing before the zoning tri- bunal because if the developer wins and there is an appeal — for instance, to the provincial cabinet — the ratepayers may take advan- tage of it. These agencies, therefore, are underpressure from applicants to deny standing. In the absence of any legislative guarantee of standing or policy pronouncements by Parliament and provincial Legislatures, there is a risk that these agencies, for expediency, may become more restrictive in recognizing parties. Generally, you either have standing or you do not. One suggestion to maximize your chances of getting standing in civil suits is to ask the Attorney General to take action, even though it is no longer clear that it is necessary to do so, or to ask his permission for a relator action, before you launch your own lawsuit. It's advisable to do so anyway, just in case the court rules that these steps are still prerequisites to getting standing. In the case of hearings before various boards and tribunals, the best advice is to find out what kinds of interests are likely to be recognized, and to establish your interest in the matter and your concern with it as early as possible in the decision-making process, preferably long before public hearings are even announced. If all your efforts to get standing fail, don't lose hope. The next chapter suggests some ways to get your day in court that may not be affected by the standing barrier. 2. INTERVENTION IN COURT PROCEEDINGS If your standing is in doubt, you can possibly get into court by inter- vening in someone else's case. In many instances citizens are not directly affected by a case but recognize that an important issue is at stake and needs to be fought through the courts. If the issues raised in a private lawsuit might affect larger classes of people, you may ask the court to permit you to appear as a "friend of the court." Or you may ask to intervene because your group's interests may be affected by the outcome of the case. This chapter discusses two kinds of in- tervention: the amicus curiae (friend of the court) and the reference. WHAT IS THE AMICUS CURIAE? A procedure, developed in England, permits a stranger to an action, known as an amicus curiae, or "friend of the court," to be represented before the court. The amicus curiae is not present to aid one of the parties to the litigation, but rather to assist the court. Historically the assistance was volunteered to correct the court in errors of law. It has been expanded considerably in the United States, and there the current practice is quite different from the historical role of the friend of the court. 1 The amicus curiae in the U.S. is usually a group that is interested in a particular aspect of the case. The determination of one or more issues in the case will have some impact on the group or the community it represents. Therefore, it intervenes in the action to file a brief and, occasionally, to make oral argument. Most often the group will inter- vene at the appellate stage, when the case has been taken to a higher court that can overturn the decision of a trial judge. The large civil rights groups in the U.S. have taken full advantage of the procedure and made the amicus brief a well-known and respected 12 Intervention in Court Proceedings 13 institution. On numerous occasions the American Civil Liberties Union, the National Association for the Advancement of Colored Peo- ple (NAACP) and the Commission on Law and Social Action of the American Jewish Congress have filed amicus briefs in the appellate courts and the United States Supreme Court, often with considerable success. For example, when the U.S. government was arresting and de- porting large numbers of Chinese immigrants in the early 1900s, the Chinese Benevolent Association of New York hired a lawyer to appear in court whenever such indigent travellers, who had no one to help them, were charged. Later, other public interest groups appeared in cases involving the legality of child labor, school segregation and capital punishment. HOW DOES THE AMICUS CURIAE ARGUE A POSITION? The written brief is the working tool of the amicus. By extensive presentation of social data, scientific reports and scholarly opinions, the brief documents the impact of the issues with which the court is (or should be) concerned. The persuasive quality of the brief stems from its purpose, which is to deal with some concern larger than the self-interest of a particular litigant, and from its approach, which tends to emphasize and encourage social, moral and philosophical consid- erations, rather than strict interpretation and enforcement of law. The brief invites the court to step back from its usual task of settling an argument between two parties and consider the profound consequences that its decision will have directly or indirectly on other segments of the community. The courts in the United States have been more willing to do this than Canadian courts. While there is provision for oral argument, the trend in the appellate courts in the United States is to restrict the amicus curiae participation to the filing of a written brief. The parties receive the brief in both their written and oral arguments. Frequently, the amicus procedure is the only way open to a public action group to raise important issues in the courts. Because of the restrictive approach of common law toward the issue of "standing," a group may not be permitted to act as an actual party litigant to a civil action. An illustration of how the amicus curiae brief acts as an end-run around the standing blockade is seen in the comments of a United States Court of Appeal when Dr. Benjamin Spock and others appealed from conviction for counselling violation of draft laws: 14 How to Fight for What's Right The brief of the Unitarian Universalist Association, amicus is the only one which envisages that, although the defendants may have committed illegal acts, their conviction might impermissibly affect First Amend- ment rights of third parties. In considering this matter we are not troubled by questions of standing. 2 HOW DOES THE AMICUS CURIAE WORK IN COURTS IN CANADA? In Canada, there are no formal rules recognizing the amicus or reg- ulating amicus procedure. Nevertheless, lawyers have occasionally been recognized by the courts as amid curiae. Almost always, people have asked the court's permission to enter the proceedings, but there are rare occasions when the court has sought help from an amicus on its own initiative. 3 All of the reported Canadian cases have involved counsel appearing to make oral representations. Some of these cases have involved procedural matters 4 but the courts have also permitted amicus interventions in substantive matters. Whether to allow an amicus presentation during a hearing is strictly within the court's dis- cretion. In fact, to interrupt proceedings by insisting on addressing the court as amicus curiae without the court's permission is contempt of court, as a spectator in a courtroom in England found out several years ago. He insisted on addressing the judge during a trial in which he was not called as a witness. When told to sit down, he said he was addressing the court "as amicus curiae." The judge cited him for contempt. 3 Although the amici have played a limited role in Canadian courts, there are instances where judges have permitted such intervention. A judge of the Supreme Court of Ontario permitted the Canadian Jewish Congress to appear as amicus curiae when a landowner whose deed contained a clause prohibiting him from selling his property to "Jews or persons of objectionable nationality" applied to have the clause declared invalid. The court agreed with the owner and the CJC that such clauses are improper and declared them to be illegal. 6 A judge of the Newfoundland District County Court allowed Playboy magazine to appear as amicus curiae in an obscenity prosecution against a drugstore. The store was charged with selling obscene mag- azines. Playboy wanted to argue that its publication, one of the mag- azines seized, was not obscene. The judge felt this would be of assistance to the court, "particularly where there was no voice before the court on behalf of the publications seized." 7 Intervention in Court Proceedings 15 A judge of the Exchequer Court (now the Federal Court) permitted counsel for the Attorney General of Canada to appear as amici curiae in an application made by a wine company under the Trade Marks Act to prevent the Registrar of Trade Marks from restricting the term "champagne" to certain wines produced in France so that the Canadian company could no longer use it to describe its products. In his judgment he stated that the amici "were very helpful to the court on the issues upon which they undertook to assist the court." 8 An Alberta Provincial Court judge permitted a lawyer to appear as amicus curiae when a member of a Mennonite community was charged with committing an offence under the School Act of Alberta for not sending his child to public school. The accused and 49 other Men- nonites had withdrawn their children from the public school and started their own school because they did not approve of the values being taught in the public school system. Because of his religious beliefs, the accused refused to be represented by counsel. The judge ruled that the following constituted the scope to be permitted to the amicus curiae: (a) to "call to the attention of the court points of law, or facts that would appear to have been overlooked"; (b) to suggest witnesses that the court might call and questions that the Court might ask of any witnesses; (c) to make submissions to the court, "either in oral or written form concerning any matter that he thinks should be considered by the court in reaching its finding." 9 A judge of the Supreme Court of Alberta appointed a lawyer to act as amicus curiae in a custody dispute between two parents, in order to obtain independent objective assistance. 10 "Through the medium of the amicus curiae one is able to gain help of professional assistance that has not been hired by either side to view the situation." Why is the procedure not used as extensively in Canada as it is in the United States? Although several reasons can be advanced to account for the differences," two obstacles may be particularly important. First, the rules of appellate courts in Canada are generally restrictive con- cerning the length and content of written argument. It is possible that an amicus brief should be extensive and detailed if it is to have much impact on the outcome of the case. But the court's rules usually prohibit this by requiring parties to set out briefly the facts and points of law they intend to argue. A successful appellant before the Supreme Court of Canada was denied an award of costs for the preparation of his 16 How to Fight for What's Right written brief because it was 912 pages in length, bound in two volumes, with an 86-page appendix. 12 Secondly, the Canadian judiciary has, for the most part, continued its reluctance to grant permission for appearances as amicus curiae. For example, in 1977, Joe Clark, the Leader of the federal Conservative Party, brought an application in the Supreme Court of Ontario for a judicial review of Canada's uranium regulations. Clark claimed that the federal government had no power to make regulations prohibiting his party from discussing in Parliament the information that Canada was participating in an international cartel to maintain artificially high world prices. The Attorney General of Canada came to court to argue that the regulations were valid, and the Canadian Civil Liberties As- sociation sought permission to intervene amicus curiae. The Chief Justice refused permission, stating: Subject to statutory or court-made rules, it is my view that interventions amici curiae should be restricted to those cases in which the court is clearly in need of assistance because there is a failure to present the issues (as, for example, where one side of the argument has not been presented to the court). Where the intervention would only serve to widen the Us [issues in dispute] between the parties or introduce a new cause of action, the intervention should not be allowed. I concluded, in the present case, that the experience and competence of counsel for the applicants guaranteed a complete canvass of the legal issues involved and that the intervention was therefore not appropriate. 13 In another decision, a panel of three Ontario Supreme Court judges denied a local residents' group the right to appear in a judicial review application brought by a developer against a municipality for refusing to issue a building permit. The decision stated: We are assured . . . that the city corporation, through its counsel, is strenuously and will continue to strenuously resist the application of Ronark, which position it has already taken by the refusal of the building permit and the precipitation of these present proceedings .. . to open the door to interested parties who may indeed be affected by the ultimate result, but who have not a direct interest in the legal rights as between the applicant and the municipal corporation, would create a situation that would in effect turn the court from being a judicial body, into a forum for the advancing of all sorts of political arguments that should form no part of the decision which will have to ultimately be made in this case. 14 Similarly, another panel of three ju refused to permit the head of a resic in an application by McDonald's E to issue them a building permit. The to hear the residents' group, stated From what is before us it would ratepayers, in this instance, wh borough. I do not consider that the enforcement of the bylaw shou this court. .. . In this day of big have so many conflicting demam represent, when a local commun ward and asks to put its position affecting it, it would seem to me be exercised to permit that to be In one case, amicus curiae status a party who had been deprived o provincial Attorney General to com ings. Magda Rayner, a concerned cement company under the provinc The company argued in defence ti constitutional grounds and won. Th< pealed this decision to the Ontario Su The Supreme Court upheld the righ over carriage of the case, but allc participate as amici curiae} 6 In summary, Canada's higher co ready overloaded and fear that recc the cost and increase the length of h are afraid of becoming a political f( for recognition as a friend of the c to inject a broader perspective into the parties will not raise important s it may be worthwhile to ask the yourself. WHAT OTHER FORMS OF AVAILABLE? Some courts use the term "interven explicitly for participation by peopL Intervention in Court Proceedings 17 |es of the Ontario Supreme Court ;nts' association to be represented :staurants to force a municipality lissenting judge, who was willing ;eem that it was the vigilance of the h has resulted in the action of the lose who have a very real interest in d be precluded from appearing before ss, in this day when municipalities upon them and so many interests to within the municipality comes for- >efore the court on a matter directly lat the discretion of the court should eard. 15 as granted by the court to allow carriage of proceedings by the iue to participate in the proceed- :izen, had laid charges against a il Environmental Protection Act. t the legislation was invalid on provincial Attorney General ap- ireme Court, as did the informant, of the Attorney General to take d lawyers for Magda Rayner to rts, perhaps because they are al- ;nition of amici curiae will raise arings, and perhaps because they •urn, still discourage applications lit. Nevertheless, there is a need ome court cases, and if you feel ial issues involved in their case, ourt's permission to raise them ^TERVENTION ARE r" or "intervenant" in providing other than parties. There may be 18 How to Fight for What's Right some differences between an intervenor under such rules and the tra- ditional amicus curiae. For example, the Supreme Court of Canada has made intervention rules under which the court can retain the same discretion it has over the amicus; but the intervenor becomes a party to the action and may be awarded or ordered to pay costs, which would not be the case with an amicus curiae} 1 The Supreme Court of Canada has been willing to allow its inter- vention rule 18 to be used to provide more than just the federal and provincial Attorneys General with access to the court. In the McNeil case, where the right of the Nova Scotia Censorship Board to censor the movie Last Tango in Paris was questioned, the Canadian Civil Liberties Association was permitted to intervene in the case and present written and oral argument. 19 In the Morgentaler case, involving the appeal of Dr. Morgentaler of Montreal from conviction under the Criminal Code for performing abortions, six associations including the Canadian Civil Liberties Association and various pro- and anti-abortion groups, were permitted to intervene, file briefs, and be represented by counsel at the hearing to present argument. 20 The Ontario Court of Appeal recently adopted intervention rules similar to that of the Supreme Court of Canada. 21 Since these new rules apply only to appeals before the Court of Appeal, intervention by public interest groups at trial or in other Ontario appeal courts will continue to be as amicus curiae. However, a task force studying the rules of civil procedure in Ontario has recommended that three forms of intervention be codified: inter- ventions by statute in accordance with the procedures set out in the statute; intervention by permission of the court, where any person other than a party claims an interest in the subject matter of the action, or claims that he may be adversely affected by it; and intervention by any person by permission of the court as amicus curiae to render assistance to the court. 22 In other provinces, interventions will also continue to be as amicus curiae except where more specific rules are made. The opportunities to intervene exist, and they will probably expand if public interest groups take advantage of them. Only through repeated efforts to convince the courts to expand the scope of their inquiry will they become accustomed to the idea that amici and other intervenors can assist them in making the fairest decisions. Although the concern among Canadian judges that the courtroom will become a political forum is very much alive, there is some evidence that this concern is giving way to the recognition that substantially to the judicial proce phistication, experience and deten tion in the judicial process may c to be an effective legal tool. Getting the governs important matters b reference Another way to bring important m government to refer important leg usually called a "constitutional r< is not limited to constitutional mati reference, the problems of standi ished. WHAT IS THE REFERENC The "reference" can bring befon important social questions. To init to have a special property or fina nor must you wait for someone elsi to convince the government that are at stake, and that it would be courts for a ruling on the matter or wait for private disputes to aris Although it is often called the thority of government to refer im no means limited to the constitutio The federal government and each islation allowing the Cabinet to refi to the courts. The only restriction is that it must be the kind of issi References have been held not on of legislation, but also to reopen there was doubt in the public min was in fact guilty and whether h Stephen Truscott case is an exam] Intervention in Court Proceedings 19 ublic interest intervenors contribute 23 As groups develop in their so- ination to effect change, interven- ntinue to increase and may prove ent to bring fore the courts: the tters before the courts is to ask the 1 questions to the court. Although ference," the reference procedure rs. If the government agrees to the ; and liability for costs are dimin- the courts legal issues that raise ate a reference, it is not necessary ial interest in the disputed matter, to launch a suit. It is only necessary e law is unclear, important issues tter for the government to ask the han to deprive someone of justice constitutional reference," the au- ortant questions to the court is by il validity of statutes or regulations, of the provinces have passed leg- r important questions of law or fact on what the government can refer the courts can normally decide, y to interpret the validity or effect ntroversial murder trials, in which about whether a convicted person had a fair trial. The well-known e. 20 How to Fight for What's Right In 1959, when Stephen Truscott was 14 years old, he was convicted of murdering Lynne Harper, a 12-year-old schoolmate. His conviction was upheld by the Ontario Court of Appeal, but several years later a best-selling book about his trial raised questions about whether the facts found by the jury were correct. At the time of the trial, a person convicted of murder had no right of appeal to the Supreme Court of Canada on the basis that wrong factual findings had been made, and could only appeal errors of law. Although the law was changed a year after Truscott's conviction to allow an appeal on these grounds, the change came too late to help Truscott. Following the publicity gen- erated by the book, the federal cabinet launched a reference to the Supreme Court. The Cabinet ordered the court to review not only the evidence presented at the trial, but also any new evidence, including evidence that would have been inadmissible at the original trial. The court again upheld Truscott's conviction, by a vote of eight to one. 24 There has also been a reference to determine whether a criminal court has the power to jail a member of a provincial Legislature for refusing to disclose the name of an informant. In March 1976, Ed Ziemba had accused Abko Medical Laboratories and some doctors of improper laboratory practices in a speech in the provincial Legislature. Ziemba had earlier received information and documentary evidence from a confidential source, pointing to possibilities of kickbacks to doctors from Abko and Abko's involvement in overcharging the On- tario Health Insurance Plan. Police followed up on allegations, and charges of fraud were laid against Abko and two of its owners. In proceedings against Abko, Mr. Ziemba refused to reveal his sources of information during a prelim- inary hearing. On a resumption of that hearing in June, 1977, Ziemba again refused to reveal sources and was imprisoned for six days for contempt of court. He claimed that as a member of the Legislature he was duty-bound not to reveal his sources. The government referred the matter to the Ontario Court of Appeal for a ruling. The court discussed not only Ziemba's predicament, but also what principles and interests the trial court should consider in determining whether it is in the public interest to make an MPP disclose his sources. The decision of the court reference, released in early 1978, ruled that MPPs have no immunity from answering questions in criminal proceedings. 25 At the actual trials of Abko and an individual defendant in Septem- ber, 1978, and January, 1979, the trial judge ruled that Ziemba's testimony would not be necessary informant was not relevant, not b HOW DOES THE REFERE Section 55 of the Supreme Court of the Supreme Court of Canada, izing a reference. Section 55(1) s Important questions of law or (a) the interpretation of the I (b) the constitutionality of in legislation; (c) the appellate jurisdiction North America Act, 186 the Governor-in-Council; (d) the powers of the Parliarr the provinces, or of the r< or not the particular pow to be exercised; (e) any other matter, wheth ejusdem generis [similar foregoing enumerations, in-Council sees fit to sub, may be referred by the Govern hearing and consideration; am matters aforesaid, so referred clusively be deemed an import nt Under this Act, when the feder; Supreme Court for its opinion, General of any province whose special interest in the question, an< The court may also direct the fed the representative of any class ol raised during the hearing. The Ac to be heard. Also, the court may on behalf of any affected interest federal government must pay the The provincial statutes are sir simpler and more to the point. Fo: Questions Act provides that the Intervention in Court Proceedings 21 but only because the identity of his ;cause Ziemba was an MPP. CE WORK? Act, which governs the procedures an example of legislation author- ates that: ict concerning: itish North America Act; rpretation of any federal or provincial 5 to educational matters, by the British or by any other Act or law vested in :nt of Canada or of the Legislatures of spective governments thereof, whether ;r in question has been or is proposed r or not in the opinion of the courts to, in the same category as] with the ith reference to which the Governor- it any such question r-in-Council to the Supreme Court for any question concerning any of the y the Governor-in-Council, shall con- question. Cabinet refers a question to the le court must notify the Attorney ;islation is affected or which has a allow him to be heard if he wishes, ral Cabinet to notify any person or people interested in matters to be states that such persons are entitled jquest any lawyer to argue the case for which no lawyer appears. The awyer's fee. ilar. Sometimes they are broader, xample, the Ontario Constitutional rovincial Cabinet may refer to the 22 How to Fight for What's Right Court of Appeal or to a judge of the Supreme Court of Ontario "any matter that [it] thinks fit." Provincial reference statutes also allow the court to appoint lawyers to argue for one side or the other — for example, the appointment of J. J. Robinet to argue the side of the tenants in the Ontario Residential Tenancy case (described next). HOW CAN THE CONSTITUTIONAL REFERENCE BE USED? Two recent cases show how public interest groups can use the reference to raise important issues. Under the Ontario Constitutional Questions Act, the Ontario Cabinet recently asked the Court of Appeal to give its opinion on the legality of proposed landlord and tenant legislation. 26 The draft statute would establish a Residential Tenancy Commission that would have sweeping powers to make orders evicting tenants at the request of landlords. In 1979 when this legislation was introduced in the Ontario Legislature, a committee of the Legislature held public hearings and invited submissions. Group after group representing ten- ants appeared before the committee to argue that the provincial Leg- islature had no authority to establish such a tribunal. They argued that the Commission would be exercising powers that, according to the Canadian constitution, are only to be exercised by a court appointed by the federal government. Many of these groups asked the Legislature committee to recommend that the government refer the legality of this question to the court for an opinion. The government agreed to do so. It placed advertisements in news- papers advising the public that it had referred this question to the courts and inviting any interested parties to apply to the court for standing. The Attorney General of Ontario appeared before the court to argue that the legislation was valid. The court also recognized several tenants' associations, landlords' and developers' associations, community legal clinics and the Law Union of Ontario. Some of these groups argued in favour of the validity of the legislation, and others argued against. The court itself appointed a prominent lawyer to argue against the legislation. The court ruled that the legislation was not valid. In a virtually identical reference in Alberta in 1978, the Appellate Division of the Alberta Supreme Court ordered the government to give notice of the hearing to the federal government, a tenants' association, a consumer group, a developers' association and two real estate as- sociations. None of the associations was represented at the hearing. The federal government and the Alberta government played only a very small role in the proceeding to argue that the legislation was v; position. 27 IS STANDING A PROBLEM As should be apparent from this right to a reference. It is necessar for one. If the government agree; automatically confer standingon will grant standing to the person anyone else who may have a con statutes provide only for referena fact, such references are usually viduals or groups. Thus, a reque actually be a way around the stan WHAT ABOUT COSTS? As mentioned later in chapter 4, n the losing party paying a large j winning party. There is no guar reference, or who intervenes in a n will be free from costs if it end: because references usually involvi it is unlikely that costs would be In fact, scrutiny of about 20 re: references over the past 50 years which the court awarded costs. I of costs in the court's decision, stated that it was not going to aw WHAT KIND OF EVIDENC IN A REFERENCE? One of the reasons courts are r< public interest is that they are not many such matters. They do no Legislature for studying the implii from all the different kinds of inti the rules of evidence generally fie into account economic, sociologic; studies. Intervention in Court Proceedings 23 The court appointed one lawyer d and another to argue the opposite scussion, no one has an automatic to convince the government to ask o ask for a reference, this does not yone, but it is likely that the court who requested the hearing and to ern about the matter. Although the by the appropriate government, in lade at the request of private indi- for a constitutional reference may ing barrier. mal civil litigation usually involves irtion of the legal expenses of the intee that a party who requests a ference requested by someone else, up on the losing side. However, matters of great public importance, varded against the successful party, xences (a large percentage of the did not reveal a single reference in most cases, no mention was made n a few cases, the court explicitly d costs. : CAN BE INTRODUCED uctant to decide matters of broad uipped with the resources to decide have the resources available to a itions of social policies and hearing ests that may be affected. Nor are ible enough to allow a court to take , attitudinal, psychological or other 24 How to Fight for What's Right One potential advantage of a reference is the opportunity to introduce social and economic arguments and statistics, both in favour of the validity of legislation and against it. The extent to which such extrinsic evidence may be used to shed light on the legal validity of legislation is very controversial. In a 1950 case, the Supreme Court of Canada appeared to rule that extrinsic evidence may not be used in a reference; 28 nevertheless, this case appears to have been overruled, and in recent references the courts have relied increasingly on this kind of evidence. In recent years, when governments have turned to the courts to rule on questions of legislative validity that involved such broad social issues as inflation 29 and conservation of natural resources, 30 the courts have considered evidence of the social and economic climate surround- ing the passage of the legislation. They did this to determine which level of government had jurisdiction to pass it. Although the courts may not determine whether a law is legal on the basis of whether it is advisable, extrinsic evidence may help them determine the legality of a measure. For example, the federal government generally has jurisdiction over matters that affect the country as a whole, and the provinces over affairs that affect the people of the province. If a province were to pass laws raising the prices of petroleum or rationing gasoline, the court might look at economic studies to help determine whether this would primarily affect people within that province or people in other parts of the country. The courts have taken an increasingly liberal approach towards the admission of such studies in references. CONCLUSION A request to the Cabinet that it refer a matter to the courts focuses public attention on the social issues and on the possible illegality of government actions or legislation. If the government refuses the re- quest, public opinion may force it to justify its refusal. If the govern- ment agrees to refer the matter to the courts, it is likely that the social and economic issues will be raised and discussed in a more or less neutral forum. Standing and costs are unlikely to cause problems. The court may provide an opportunity for the introduction of social and economic arguments, studies and statistics. The court itself may ap- point top-notch lawyers to argue both sides of the case, saving indi- viduals or groups of modest means from the cost of hiring their own lawyers. With these advantages, the constitutional reference should be con- sidered a useful public interest advocacy tool. TEST Sometimes people take advantagt engage in practices that are oppre discrimination. In such circumst only to protect the rights of the a1 laws for many others in the sam towards ending the oppressive or Perhaps the best-known test ca civil libertarians on behalf of bla( in Ontario restaurants in the 1950 cases, they may raise practical issues for his legal advisors, part setting up the factual situation to The test case is a time-honoun Test cases are attempts to use a se and to establish the rights or obli than the parties. The primary pu to serve the common interests of than to resolve a dispute between a consideration. WHAT SHOULD LAWYER BEFORE GOING INTO A T Because of the special nature of i may agree in advance to suspend in their case. Normally, because lawyer would discourage a client little chance of success, and wou reasonable offer of settlement or litigation indefinitely. But a test ca the law whether it is won or lost. :ASES of ambiguous or unclear laws to sive, for example, racial or sexual ices, the "test case" is taken not ected individual, but to clarify the position. It can be a useful step nfair practice. :s in Canada were cases taken by c people who were refused service Despite the obvious value of test oblems for the litigant and ethical ularly if the lawyers are active in e used in court. tool of public interest advocacy, of circumstances to clarify the law, ations of a broader class of people >ose of this kind of legal action is a class or group of people, rather parties, although this may also be 4ND CLIENT DISCUSS ST CASE? test case, the lawyer and his client some of the normal considerations f the great expense of litigation, a om commencing litigation that has d encourage the client to accept a compromise rather than continue e may be just as useful in clarifying herefore, the lawyer and his client 26 How to Fight for What's Right may agree at any time to continue a test case because it could achieve social change, even if a reasonable settlement offer is made. Moreover, since the financial interests of the client are not the primary goal of the litigation, the "generosity" of a settlement offer may not deter the lawyer or his client from seeking a judicial decision on the matter. There are other differences as well between the case to vindicate private interests and the test case. In the private case, the high cost of litigation and the party-and-party costs (costs that may be awarded against a plaintiff- who loses his case) usually make it impossible for the plaintiff to resist an attractive settlement offer. In test cases, there is often a public interest group that is prepared to absorb these costs. Also, it would normally be improper for a lawyer to encourage his client to break the law. There may be an exception when the purpose of breaking the law is to test it rather than to achieve some personal gain. HOW DO TEST CASES ARISE? Test cases tend to arise in one of three ways. First, there may be numerous claims against the same defendant, or one plaintiff may have similar claims against different defendants. The claims are all similar in their circumstances and embrace the same questions of law and evidence. In this situation, the parties or the court may select one action to go to trial first, because it is representative of the others. The first case will serve as a test of the rights of the parties in the other cases. Often, all parties will agree to be bound by the result of the test action. For example, if hundreds of women who took the same drug gave birth to deformed babies, and all of them sued the drug manu- facturer, they may agree to select one typical case as a test case. Secondly, public interest groups seeking to advance a particular form of social change may be interested in a situation that exemplifies a particular injustice. If the group becomes aware of someone with a grievance that would make a particularly strong test case, it may assist that person in obtaining legal counsel and may support the litigation. For instance, if a gay person were fired from his job because of his sexual orientation and wanted to sue his employer for wrongful dis- missal, he might ask a "gay liberation" group or civil liberties as- sociation to provide him with a lawyer. The group would discuss whether the case would advance the cause of gay rights or civil liberties, whether the plaintiff was sincere, credible and likely to stick with the Test Cases 27 case under adverse circumstances, and would agree to provide the service if this seemed likely. Thirdly, members of public interest groups occasionally will "set up" a test case situation by deliber; tely placing themselves in a position where they know they will be harmed by someone else's activities or even by intentionally breaking the obligations. The latter group may guity, or because they believe tha When they are rich and powerful a aw to test whether it applies to that situation. The anti-racial discrimination cases described below are ex- amples of setting up a test case. Frequently, new laws are passejd that appear to expand the rights of some group, but they are resiste 1 by those upon whom they impose resist the law because of its ambi- they can ignore it with impunity. 'd those whom the law was intended to benefit are poor or are vulnerable because of some relationship they have with people resisting the law, new rights may remain unclarified and unenforced for a long time. Landlords and tenants are a good example. Tenants may be afraid ofl reprisals if they enforce what they believe to be their rights against their landlords. They may not have the financial resources to carry thetir case to the higher courts, which can make decisions that are bindin In such situations, a test case is on lower courts, needed. It could take a long time, however, for a good test case situai ion to arise — a situation in which the facts are strongly favourable to the right, the issues are clearly defin to carry on lengthy, psychologically stressful litigation. Therefore, public interest advocai the people who have been granted :d, and the plaintiff has the courage :s have sometimes taken advantage of existing situations that might otherwise have been ignored, or have created situations to test the law. HOW DO THE COURTS FEEL ABOUT TEST CASES? Despite the fact that courts have occasionally frowned upon test cases, there does not appear to be anythi: lg legally or ethically wrong with a public interest group or lawyer commencing or even "setting up" a test case. The Canadian Bar A Conduct, for example, warns law} dishonest or to violate the law, anc the tool or dupe of an unscrupuloi s client or people associated with the client. However, it goes on to A bona fide test case is not nece long as no injury to the person or isociation's Code of Professional ers never to assist a client to be to be on guard against becoming tate that: isarily precluded by [this rule] and so iolence is involved, it is not improper 28 How to Fight for What's Right for the lawyer to advise and represent a client who, in good faith and on reasonable grounds, desires to challenge or test the law, and the test can most effectively be made by means of a technical breach giving rise to a test case. This appears to mean that although a lawyer cannot assist in dishonesty, he may advise someone whom he knows intends to break the law in order to test it. For example, if the black woman in Birmingham, Alabama, who decided to break the law and be arrested rather than give up her seat on the bus to a white person as required by law had come to a lawyer for advice, he would have been doing nothing uneth- ical by supporting her decision to do this and representing her. Occasionally, in refusing to provide a remedy or redress, courts have remarked upon the fact that a situation is artificial. However, in none of these cases did the decision actually turn on the fact that someone had deliberately set up a test case. Therefore, they do not stand for the proposition that setting up a test case is improper or ineffective. Certain racial discrimination cases illustrate the way the courts have treated "set up" test cases. In one of the early Canadian cases, a black man in Montreal bought a ticket to the movies. 1 The ticket had written on it that the ticket holder had the option to sit either in the orchestra section of the theatre or in the mezzanine area. When this particular ticket holder took an orchestra seat, a theatre employee appeared and told him to go up to the mezzanine, an area reserved for negroes. He was offered the choice of sitting in the mezzanine or a refund of his money. He refused to move. At court, the trial judge awarded him damages for breach of contract, but the theatre owner appealed to a higher court, which overturned the decision. The three appeal judges gave several reasons for ruling against the man, based primarily upon the theatre owner's "freedom of com- merce." However, one judge noted that the plaintiff "knew at the time he purchased the ticket that he would not be allowed to occupy a seat in the orchestra, and that he had gone to the said theatre and had purchased said ticket for the sole purpose of taking the present action against the defendants. .. . He therefore exposed himself de- liberately to the refusal of which he complains in his action." More than thirty years later, the same issue was raised obliquely in one of a series of test cases under the Ontario Fair Accommodation Practices Act. The Act provided that, "No person shall deny to any person or class of persons the accommodation, services or facilities available in any place to which the public is customarily admitted because of the race, creed, colou origin of such person or class of p Test Cases 29 nationality, ancestry or place of ersons." In 1954, shortly after the Act was passed, black and white civil rights activists went to Dresden, Ontario, to test the law in a number of restaurants. These restaurants allegedly barred coloured people. Representatives of the Student Cl ristian Movement, the Joint Labour Committee for Human Rights, a n porter for a Toronto newspaper, a resident of Dresden and a black ma 1 named Bromley Armstrong drove from Toronto to Dresden to eat in 01 e of these restaurants. The waitress refused to serve them. The local resident, who knew the owner, went to the kitchen and asked him for se -vice. The owner said he was "too busy." Mr. Armstrong laid a chargs under the Act and the owner was convicted. However, on appeal, County C )urt Judge Grosch overturned the conviction, stressing the fact that this was a test case. These four went to Dresden for tne avowed purpose of getting evidence as to whether the appellant and cithers were observing the law, and to obtain evidence for a test case, newspaper reporter] admitted, a wanting food or refreshments at of providing service for the resic munity or for travellers or touri These seven people did not go same time by coincidence, but as plan, or as one of the witnesse and it was not, as Donaldson [the 'legitimate or genuine case of people all." Furthermore, it was not a case ents of a local and surrounding com- ts visiting in or passing through the town, which ordinarily is what service one expects a restaurant to pro- vide. o this restaurant at approximately the a result of and part of a preconceived testified: "This whole thing was a scheme to try and create a situatio 1 there," and was planned in Toronto as a test case by the Joint Labour Judge Grosch did not base his decision on the fact that the situation was set up, however, but said he was not satisfied there was sufficient evidence that service was denied, (r that, if it was denied, this was because of the colour of the informant. On the same day, he also Committee for Human Rights. 2 quashed the conviction of another that the primary reason for the pre taurant was not to obtain food but to was obeying the law." 3 In this case, was insufficient evidence that the fo the denial of service was because o ancestry or place of origin. (Judge restaurant owner, again stressing ence of the informant in the res- "see if the Emerson's Restaurant the reasons given were that there )d requested was available or that race, creed, colour, nationality, Grosch, incidentally, was one of 30 How to Fight for What's Right a group of landowners who, in a 1949 case, had petitioned the court to enforce a clause in several deeds prohibiting landowners from selling their property to Jews or negroes, although he stated in a newspaper interview that this involvement had not influenced his decision.) However, County Court Judge Lang in two very similar cases in- volving the first restaurant owner, two black men from Toronto and the same representatives of the two public interest groups, upheld two convictions for the same offence. Judge Lang apparently was not both- ered by the fact that these were test cases. 4 In none of these cases did the decision actually turn on the fact that someone had deliberately set up a test case. Therefore, they do not stand for the proposition that setting up a test case is improper. The primary purpose of the courts has traditionally been to settle disputes between individual parties, rather than to establish broad social policy. But it is sometimes recognized by the courts that individual cases frequently affect a broad spectrum of the public and serve an important role in clarifying the law for others. This is why, for example, the courts often do not award costs against the loser in court cases that involve matters of broad public interest or the interpretation of legis- lation that has not yet been tested. The test case, therefore, appears to be a legitimate instrument of public policy and is no less legitimate if it is "set up." WHAT IS THE KEY TO A SUCCESSFUL TEST CASE? In order to have a successful test case, you must avoid falling into either of two traps. First, you should know that the courts will not decide questions that are premature or merely hypothetical. The sit- uation is not hypothetical just because it has been set up. However, occasionally a situation involving a potential injury or breach of the law may appear to be an ideal test case. Until the injury or breach actually occurs, the court will not consider the case. If you were to ask the court to tell you what your rights or obligations would be if this were to occur, the court would refuse. For example, if the civil rights advocates had simply stayed in Toronto and asked the courts for a decision on whether it would be illegal for restaurants in Dresden to refuse to serve Mr. Armstrong, they would not be heard. Or to take a more current example, if Alberta were to pass legislation setting the price of oil, the courts could rule whether this was within the juris- diction of the province or the federal government. But if Alberta were to ask the court what it would do legislation, the court would refuse Secondly, the setting up of a te or prosecutor being unable to prov ments of its case. An act or omissi Test Cases 31 if the province were to pass such t case might result in the plaintiff ; one or more of the essential ele- > n that would be illegal if someone were involuntarily subjected to it might not be illegal if the plaintiff or informant voluntarily exposed h A recent pollution case that was mself to it. lot a test case illustrates this prob- lem. Toronto Refiners and Smelters, a leading smelting company, was charged with discharging a contaminant contrary to the Ontario En- vironmental Protection Act. 5 Such pollution offences generally involve some element of causing harm. It is not usually an offence to discharge obnoxious substances if they are incapable of causing or are unlikely to cause any harm. But the same at a location where it is likely to cau the company discharged a foul-sim night. No one was present except a l inspector from the Ontario Min- istry of the Environment. He delib ;rately entered the visible plume, whereupon his eyes began to water At trial, the company was convi of Appeal overruled the company's discharge wasn't harmful. The courl ischarge in a harmful quantity or > e harm is punishable. In this case, lling chemical into the air late at and he had difficulty breathing. ;ted. However, the Ontario Court conviction on the grounds that the held that the only person affected was the government inspector, and he was affected only because he voluntarily walked into the middle of the area of contamination. There- fore, by deliberately walking into th offence. The courts have recognized the ^alue of test cases in many ways. If a person breaks the law only to df termine a principle, the court can impose a lighter sentence than it n< plume, the inspector vitiated the mally would. 6 If two litigants in similar lawsuits decide they will treat one of the suits as a test case to clarify the rights of the other person, it isn't maintenance or cham- perty (see chapter 6) for one of them to support the other's case financially. 7 Test cases fuelled the alack civil rights movement in the United States and in Canada. They ire likely to be an important part of other movements for social progress in years to come. CONCLUSION You are now at the courtroom door At some point you decided that the court was a good forum to fight in and you overcame the standing barrier. Even though you had no property to defend, you got here 32 How to Fight for What's Right through a reference or as a friend of the court. Or perhaps you have a property interest but it is more important to you to use your case as a test case to help others than to settle out of court, which would compensate you for some harm to your own property, but leave others in your situation in doubt about their rights. Using the courts to bring about social change is not an activity for the timorous. Your opponents will often be represented by very suc- cessful lawyers, protecting the interests of some of Canada's wealthiest corporations. There are some rules of the game, some traps and tactics, you should know about. If you do, your journey through the courts and tribunals that enforce the law can go smoothly. The next part of this book tells you what to expect in certain situations that often arise before courts and tribunals and how to avoid a few snares for the unwary. Part II: Before the Courts and Tribunals 4. WHO PAYS? When you consider mounting a legal case, the first question is, "What will it cost us?" The expense will include items like the fees payable to various courts and tribunals, the cost of obtaining documents, pho- tocopying, long-distance phone calls, travel, hiring expert witnesses (if necessary) and paying your lawyer, unless he is providing his advice free of charge. These costs vary greatly from case to case. In addition, in some situations if you lose your case you may be required to pay some of the legal expenses of the other side. These "party-and-party" costs are explained in this chapter. A particularly insidious aspect of costs is that opposing lawyers will sometimes try to convince a court or tribunal to award costs against a lawyer personally, because he has taken a public interest case. The chances of this succeeding are very slim, but it could happen. The circumstances under which a lawyer might be personally liable for costs are described. WHAT ARE THE COSTS AND WHO IS LIABLE? There are three kinds of costs involved in any court case: "disburse- ments" (expenses such as photocopying costs, fees paid to the court to file documents and fees paid to expert witnesses such as doctors, lawyers and actuaries); your own lawyer's fees; and the fees and dis- bursements incurred by your opponent. These are the "hidden costs" you incur if you lose. One of the first things a public interest advocate must consider when he thinks about using the courts is the possibility of having to pay part of the legal expenses of his opponent, in addition to paying his own lawyer. Courts, and occasionally tribunals, have the power to order you to pay a substantial portion of the other side's legal expenses if you lose the case or misbehave; the other side may be ordered to pay 35 36 How to Fight for What's Right costs if you win. These awards are called party-and-party costs and they are often a serious deterrent to public interest litigation. In general, in private prosecutions, Small Claims Court actions and hearings before boards and tribunals, either no party-and-party costs are awarded or the awards are very small. In civil litigation, including judicial review applications, however, the loser is usually ordered to pay costs to the winner, and these costs may be substantial. In these inflationary times, any estimate of costs I can give you will soon be out of date. However, it is not unrealistic to expect to pay $800 to $1,000 for each day of trial, and your lawyer may have difficulty estimating how long the trial will last. Judicial review applications, which primarily involve interpretation of the law, often take one to two days of court time. Other civil cases involving questions of fact — for example, which of ten factories in a polluted area caused the plaintiff's illness — may last for weeks. If a party loses his case on a judicial review application that takes two days of court time, the costs awarded against him may be around $2,000. HOW DO THE COURTS AWARD COSTS? Statutes establishing the courts usually provide them with wide dis- cretionary powers to award costs in any way they see fit. Over the years the courts have established a general rule that costs should "fol- low the event"; that is, the loser must pay the costs to the winner. These costs are calculated according to "tariffs" established for each court. In civil litigation, the tariff usually provides for the loser to pay approximately one-half to two-thirds of the winner's legal fees and disbursements. Here's how the system works in practice. If you win your case, your opponent will pay a substantial portion of your lawyer's fees and then legal expenses. If you lose, you pay a similar share of his costs. Suppose the loser appeals. If he loses again, he will probably have to pay two sets of costs — the costs of the initial trial and the costs of the appeal. But if he loses the first time and wins the second time, the results can be fairly unpredictable. Success on appeal wipes out the trial judge's award of costs against him. The appeal judges, with their wide discretion, can then award the victor the costs of both the trial and the appeal (the usual result) or of the appeal only (no costs of the trial being awarded to either party). Occasionally, they may leave the original award intact but award costs of the appeal to the victor. Or if each side wins a partial victory on appeal, they may not award costs Who Pays? 37 to either. To complicate matters still further, the decision of the appeal court may be appealed to an even higher court, which may reverse the first appeal court's decision. This court would then have discretion over the costs of all three hearings. Another result of the wide discretion the courts have is that, except where their decisions on the merits of a case are overturned, higher courts are reluctant to overrule their costs awards. If you feel it is unfair for you to pay the other side's costs even though you lost the case, it is seldom worthwhile to launch an appeal against the costs award. Because the judges have wide discretionary powers they can depart from the general rule that costs follow the event. The court may decide not to award costs to a successful party if the question at issue is a new one, 1 if a new statute is being interpreted, 2 or if the action is a test case. 3 If a matter of great public interest is at stake, the court may exercise its discretion not to award costs against a public interest litigant who loses. For example, in the Elora Gorge case, two members of a Conser- vation Authority sued the Authority and the Municipal Council for an injunction to prevent the construction of a highway and bridge. Both would pass through a park and the bridge would cross the deepest and most scenic part of a unique river gorge in southern Ontario, just north of the City of Guelph. Although the Ontario Supreme Court dismissed the plaintiffs' action, the judge did not award costs against them: "I have expressed the view," Mr. Justice Weatherston said, "that if it had not been for the concern of citizens in the area, no consideration would have been given to the environmental factors . . . councils must learn that they should take all relevant matters into consideration and these were most important considerations which initially were com- pletely ignored. I think that the plaintiffs have done a public service here in bringing this application .. . I make no order as to costs." 4 On the other hand, the fact that a plaintiff believes he is acting in the public interest is no guarantee that costs will not be awarded against him. The plaintiffs appealed the Elora Gorge decision and lost. The Ontario Court of Appeal then ordered them to pay approximately $16,000 in costs. 5 Moreover, for every court that takes the attitude of Mr. Justice Weatherston towards a case that is brought in the public interest, there seems to be another court that takes the opposite view. In a case in which residents of Winnipeg sought to overturn a decision of the City 38 How to Fight for What's Right of Winnipeg to realign a road in a manner that would have significant impact on the environment, a judge of the Manitoba Court of Queen's Bench said: "I think that this is clearly a case where a few individuals who cannot get the majority of people to see their point of view are attempting to accomplish the same by making an application to this court.'' The application was dismissed, and costs were awarded against the applicant. 6 Similarly, in 1978, costs were awarded against a staff member of Pollution Probe who challenged the failure of the Ontario Minister of the Environment to file a timetable for phasing out nonreturnable pop cans, in accordance with an amendment to the Environmental Protec- tion Act that appeared to require him to do so. 7 This section of the Act had never been interpreted before and involved a significant public interest issue, as nonreturnable cans are a source of litter and wasted energy and cause a waste disposal problem. Nevertheless, when the court ruled that the EPA amendment did not require the filing of such a timetable, costs were awarded against the plaintiff. "This is a case of some importance no doubt," Mr. Justice Hughes said. "Nonethe- less, the advisors of the applicant must have been well aware and made her well aware of the risks inherent in bringing the application." ARE THERE LESS EXPENSIVE ALTERNATIVES? Often the main purpose of a public interest lawsuit is not to recover all the money you have lost as a result of some unjust activity, but to put a stop to that activity. In this case, the small claims court may be the answer to the costs problem. Small Claims Courts, which decide disputes involving relatively small sums of money, are informal in their procedures and encourage people to be their own lawyers. These courts frequently award no costs. When they do award costs, they are usually limited by tariff to relatively small amounts: for example, a maximum of $50. In some provinces, such as Ontario, it is also relatively inexpensive to appeal a Small Claims Court decision if you lose. If you lose the appeal as well, the tariff limits the costs that can be awarded against you so that they will probably be less than $100. Because it is inexpensive to sue in this court, sometimes a good strategy is to bring a number of actions in it, each for a small amount of damages, rather than seek an injunction in a higher court. Sometimes a prosecution in the criminal courts for violating a statute will serve the same purpose as a civil action, without the liability for Who Pays? 39 costs. In the criminal courts, if your complaint is dismissed (that is, if the accused is found not guilty of the offence), usually no costs will be awarded against you in a private prosecution. Even if the judge awards costs to the accused, which you must pay, these will rarely exceed $100, and will usually be only $5 or $10. ARE THERE COSTS INVOLVED WITH BOARDS AND TRIBUNALS? Similarly, most boards and tribunals do not award costs either to the applicant or to those opposing him, regardless of the outcome. For example, after the dissident members of the Conservation Authority lost their court cases to stop the bridge being built over the Elora Gorge on legal grounds, two environmental groups exercised their right to a public hearing before the Ontario Municipal Board, at which they opposed the bridge on planning grounds. When the applicants for permission to build the bridge and the highway approaches asked for costs against their opposition, whom they had beaten once again, the Board refused, stating: This Board, however, is of the firm opinion that the hearing of this matter, regardless of any delays which may have been occasioned, is the right of the citizens of the Province of Ontario under the Planning Act, RSO 1970, chapter 349, and unless the objection or objections be deemed to be frivolous or without merit, no order as to costs should issue. The objections to the proposal were stated with certainty, clarity and with a great deal of merit, and certainly were anything but frivolous. There will therefore be no order as to costs. 8 This has been the traditional attitude of the OMB towards costs. Like some other boards and tribunals, however, it has developed a "one- way" costs rule. Although the proponent will never be awarded costs against objectors unless they misbehave badly, opponents will some- times be awarded costs if they defeat the application. There appears to be a trend towards giving costs to members of the public to help them defray their expenses in opposing wealthier ap- plicants. One example is a 1977 decision of the Ontario Energy Board, in which it awarded costs for the first time to members of the public opposing rate increases for Ontario Hydro. 9 The award was based on the fact that intervenor participation had been helpful to the Board. Costs were awarded to those intervenors whom the Board considered to have actively participated and put forward intelligent, well-informed and effective interventions. 40 How to Fight for What's Right WHAT COSTS CAN AN ADVOCACY LAWYER FACE? One of the hazards of being a public interest lawyer is the possibility that lawyers on the other side will attempt to convince a judge to award costs against you personally, if your client cannot afford to pay. For example, this happened in a 1975 test case that involved important points of law and tenants' rights. The case was one of a series of actions under Ontario's newly passed Landlord and Tenant Act taken by Parkdale Community Legal Services, one of the first "storefront" law clinics in Canada. 10 Parkdale acted for a number of tenants fighting a landlord who was notorious throughout Toronto after press coverage of the state of disrepair of his highrise apartment buildings, involving the lack of repair of faulty elevators, garbage and debris, elevator breakdowns, lack of hot water, fires around the incinerator, cock- roaches, poor security, breakdown of air-conditioning and water leak- ing through the ceiling. The test case was one of a series of cases that attempted to clarify the meaning of certain sections of the new Act. One of these cases went all the way to the Supreme Court of Canada. In this case, the issue was whether the Act entitled tenants who claimed that a landlord was failing to meet his obligations of repairs to withhold their rent and instead pay it into a "trust fund" to be held until the courts determined their rights. When the tenants withheld their rent, the landlord evicted them for non-payment. The tenants challenged the eviction on the grounds that the Landlord and Tenant Act gave them the right to withhold rent under these circumstances. The court held that the tenants had no right to withhold rent to force repairs, and if they did so, the landlord could evict them. At the conclusion of his argument, the lawyer for the landlord asked County Court Judge Cornish to award costs personally against Mary Hogan, the lawyer for the tenants, who was an employee of Parkdale Community Legal Services. At the time, PCLS was funded by grants from the federal government, the City of Toronto and York University. The landlord's lawyer argued that PCLS staff were the instigators of the ' 'trust fund'' idea and were a ' 'controlling force'' behind the actions of the tenants in their fight with the landlord. He argued that since Mary Hogan was a solicitor on the staff of PCLS, she could be held responsible for its actions. The case raises interesting questions about the liability of community legal clinics and public interest lawyers. Although in the end Judge Who Pays? 41 Cornish refused to order costs against Ms. Hogan, he seemed to exhibit great ambivalence about this: There is little doubt in my mind that individual members of lower income groups need protection against the more powerful forces in our society, and the Ontario Legal Aid Plan is a successful thrust in this direction. It is claimed that there are areas of need for legal services which this plan does not reach and this may well be true. If this is so, then either the plan must extend its scope or other more radically oriented groups will fill the gap. Parkdale Community Legal Services appears to be one such group. . . . The existence of this organization and the claim for costs in this application against one of its staff lawyers throws into focus a serious problem. On the one hand, we have a group trying to fulfill a social need. On the other hand, there are dangers inherent in an organization undertaking and sponsoring litigation without the need of having any regard to the legal costs incurred. Judge Cornish not only refused to award costs personally against the tenants' lawyer, but he also refused to award the normal costs against the tenant in whose name the action was brought. Recognizing that she could not possibly be expected to bear the costs of the proceedings, which had consumed eight court days and would normally amount to at least $1,000, he fixed her liability for costs at $200. In remarking that the request for costs to be awarded personally against the clinic lawyer was "a situation which required consideration by all concerned with the administration of justice," Judge Cornish gave notice that participation of public interest lawyers and community legal clinics in representing the poor in test cases is an unusual situation that may not fit neatly into the normal costs rules. Lawyers for defendants can be expected to attempt to use this tactic in situations where an impoverished client has put their client to great expense and where a community legal clinic has been more directly involved in planning and implementing their clients' activities than would be expected from the traditional lawyer. Nevertheless, there is substantial evidence that such requests will continue to be unsuccessful. WHEN WILL COSTS BE AWARDED AGAINST A LAWYER? The court's discretion to depart from the general rule that the loser is responsible for the winner's costs includes the authority to order the losing party's lawyer to pay the costs personally. An award of costs 42 How to Fight for What's Right against the solicitor is an extreme departure from the general rule and would be made only in rare cases. The basis for such an award is the court's authority over its officers. When a solicitor appears before a court, he is an officer of that court. He must balance his duty to his client against his duty to the court. The Canadian Bar Association Code of Professional Conduct states that the lawyer has a duty to treat the court with candour, fairness, courtesy and respect. For example, the lawyer must not abuse the process of the tribunal by: instituting or prosecuting proceedings that are motivated by his client's malice; knowingly assisting or permitting his client to do anything dishonest or dishonourable; knowingly misstating the contents of a document, the testimony of a witness, the substance of an argument or the pro- visions of a statute; abusing a witness; deliberately neglecting to inform the tribunal of any law or cases relevant to the case at hand. Sometimes, representing a public interest litigant can place a lawyer in a position in which his duty to his client can be made, by a sharp opponent, to appear to conflict with his duty to the court. For example, many public interest cases have little chance of success because they are based on theories of law and public responsibility not held by most of society, or based on facts that are difficult to prove, for example, the likelihood that a relatively new drug, chemical or technology causes cancer. In such cases, the opposition may be able to convince the court that the advocacy lawyer is deliberately wasting the court's time with a case that has no merit. The conflict between duty to the client and duty to the court may be real in cases where the client demands a "political" defence rather than a "legal" one. Public interest lawyers sometimes walk a fine line. In some instances, the court's common law authority over its officers has been expressed in statute. For ex- ample, the Federal Court Act provides that the court may make an order against a solicitor who is responsible for costs that are incurred "improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default."" This rule indicates that in essence the court will not make such an order unless there has been some misconduct. Costs may be awarded against a solicitor in two very specific sit- uations. First, a solicitor who acts without the authority of his client may be ordered to pay costs if he has negligently failed to obtain a proper retainer. 12 However, he will not be required to pay costs if he has acted in good faith and with the belief that his retainer was suf- ficient. 13 Secondly, a solicitor may be ordered to pay costs if he acts Who Pays? 43 for a mentally incompetent person or for a person who has been de- clared incapable of managing his affairs. 14 For the public interest lawyer, the specific situations described above are unlikely to arise. However, the following cases shed some light on the kinds of "misconduct" that may lead to an award of costs against a solicitor. In one case, the solicitor for the plaintiff was ordered to pay the defendant's costs because of his "obvious disobedience of a court order." 15 In another case, the court made an order of discovery requiring a party to give other parties information, in writing and under oath, describing all documents relative to the case that had been in his possession at any time. Since the client's affidavit of documents was incomplete and misleading, the court held that his solicitor was liable for costs since he had "prepared and permitted his client to make affidavits of documents which were inadequate and false." The court held the solicitor liable even though the affidavits were prepared by a clerk and not by the solicitor himself, since the solicitor had a duty to supervise the work. Therefore, even if a solicitor has delegated the responsibility to someone else, he remains responsible for any mis- conduct. 16 In a similar case, a person being investigated by a Commission of Inquiry looking into organized crime asked the court to order the Commissioner to refer a question of law to the Ontario Court of Appeal for interpretation. In support of this application, the client swore an affidavit in which he argued that the Commissioner was biased against him. The court concluded that the affidavit contained "shoddy," "faulty" and "scurrilous" statements, and that the solicitor knew that his client's statements were false. The solicitor's failure to correct these statements was interpreted as a "gross neglect of duty," and the solicitor was ordered to pay costs. 17 A solicitor was ordered to pay costs in another case because the court felt that examinations for discovery were "reduced to a sham- bles" either "deliberately or by reason of gross ineptitude." The solicitor was ordered to pay costs even though the examinations had been conducted by another solicitor who was acting on his behalf. 18 Finally, a solicitor was initially ordered to pay costs when he rep- resented a "plaintiff who had very little chance of success." The trial judge also said that, "where the plaintiff is a poor man, against whom a judgment for the defendant's cause would yield nothing, then a solicitor must act with greater care than he would do if his client was judgment-proof." But the solicitor successfully appealed this order. 44 How to Fight for What's Right Quoting from several leading cases, the Court of Appeal noted that before a solicitor is ordered to pay costs "there must be something that amounts to a serious dereliction of duty, something . . . which justifies the use of the word 'gross.' " Furthermore, "The mere fact that the litigation fails is no reason for invoking the jurisdiction; nor is an error of judgment, nor even is .. . an error . . . which constitutes . . . negligence." The Court of Appeal rejected the argument that the solicitor must act with greater care when he is representing a poor man. It held that such an argument would "transgress one of the very fundamentals of our judicial principles that all men, regardless of wealth or position, stand equal before the law." For lawyers who represent public interest groups it is significant that the court rejected this argument. 19 CONCLUSION Before deciding to take legal action, lawyers and clients should care- fully discuss the costs involved and take steps to secure funds. It is far easier to raise a "defence fund" before a case goes to court than afterwards. Therefore, it may be as important for any organization intending to launch a test case to have a good fund-raising committee as to have a good legal arm. Moreover, whether you can raise funds to cover legal expenses may be a good test of whether you have an important case. Persistence will usually pay off in more funds than you need if the case is worthwhile. If you are concerned primarily about party-and-party costs that will only have to be paid if you lose, pledges may do the job. Pledges that may never have to be honoured are easier to raise than hard cash — but harder to collect if and when they are needed. Nevertheless, most people honour their pledges. You should also consider the cost of appeals at the outset. Is the case so important that you should not undertake it unless you are prepared to go all the way to the Supreme Court of Canada? Or will you have made your point even if you lose and don't appeal the decision? If some member of your group is willing to be the plaintiff, he will be responsible for the costs if the case is lost. Can he afford this if the fund-raising efforts aren't successful? If you are a lawyer for a public interest litigant, consider whether you will have to use the kinds of tactics that will tempt the court to award costs against you personally. If you anticipate this, you should consider the effects such an award may have on your reputation in the Who Pays? 45 general legal community. Are you willing to pay this price to prove a point or defend a principle? Do your clients understand that this is a possible outcome of your strategy or tactics, and are they willing or able to cover costs awarded against you? If they say they are, you may want to get it in writing. In other words, you may want your clients' authorization to use the specific tactics and their agreement to indem- nify you against any costs arising out of those tactics. Of course, you should be aware that any time you breach your duty to the court you may also face disciplinary action by the governing body of the legal profession in your province in addition to any costs awarded. In summary, as litigant or lawyer, you need to assess realistically your responsibilities and liabilities before issuing a writ and plan for them. 5. WHAT TO DO AND SAY AND WHAT TO AVOID In public interest cases, groups and their lawyers are often approached by the press for comment, and groups will ask their lawyer what they can and cannot say. It's a difficult question because it is necessary to keep a balance between the right to exercise free speech and the need to be respectful to the court and fair to other parties. In addition, the other side can use contempt as a weapon to intimidate public interest groups and their lawyers. Chapter 5 provides some guidelines on con- tempt. WHAT IS CONTEMPT? Contempt of court is any act that is likely to embarrass, hinder or obstruct a court in administering justice, or is likely to lessen the authority or dignity of the courts. CONTEMPT, PUBLIC INTEREST GROUPS AND THE MEDIA Here the focus will be on the relationship of public interest groups and their lawyers to the courts and to the media during judicial proceedings. The rules that apply to groups and their lawyers are frequently similar to those that apply to the media, but the circumstances of public interest advocates differ in some ways. Even before deciding to launch a legal action, public interest groups and their lawyers must consider the impact it may have on their right to inform the public about the issues involved. You must understand that once a matter is sub judice (under consideration by a court), your ability to speak freely about the issues without fear of being cited for contempt will be severely curtailed. Even if you are willing to continue discussing the issues, the media will be reluctant to report what you 46 What to Do and Say and What to Avoid 47 say for the same reason. Thus, if launching legal action is likely to tie up a matter in the courts for years, public interest advocates may be reluctant to enforce their legal rights. The trade-off of public dis- cussion for the possibility of a favourable court decision may be too great. Once an issue is before the courts, the media may back off and the opportunity for valuable exposure will be lost. Of course, the problem of contempt is particularly acute for the media, whose job is to report the news. On the one hand, it is in the public interest to allow the press to publish accurate and objective reports of trials. Moreover, under normal circumstances it is very important to have a press that is willing to discuss and evaluate the kinds of important social issues that might arise during a trial, such as the safety of automobiles or the rights of minorities. On the other hand, the parties are entitled to a fair trial, uninfluenced by outside events. Should the mere existence of a legal dispute have the effect of removing all legitimate discussion of such social issues from the media? If not, where should society draw the line? A recent case is illustrative of the problem faced by both the media and citizen advocates. The Supreme Court of Ontario called the Toronto Globe and Mail before it to explain why the newspaper should not be cited for contempt of court for publishing an article about a professor who was fired by McMaster University. The article had appeared on the very morning the court was to begin hearing the professor's application to strike down the university's decision to dis- miss her. It said that the professor was an expert in women's studies, a new discipline which people interviewed described as unconventional and controversial. People were quoted who said the professor was recognized to be a good teacher, but the university had questioned the quality of her research. Mr. Justice Henry said, "Those of us who have read it feel it is a slanted article and have quite strong reservations whether we should hear the case at all." The Globe's lawyer argued that the newspaper had printed the article because it believed the case to be "only part of a wider problem which is clearly a matter of public interest — that is, the struggle between teaching and research at McMaster and its bias against unconventional subjects." He said that The Globe did not think the article would influence Supreme Court judges. The court decided not to cite The Globe because it found that the newspaper did not intend to interfere with the judicial process. 48 How to Fight for What's Right About two weeks later, the Attorney General of Ontario asked the Ontario Supreme Court to cite the same newspaper for contempt, this time because of an editorial it published during the course of a trial to determine the validity of writs authorizing the Sheriff to evict 250 residents of the Toronto Islands from their homes. The Sheriff's Office had refused to serve the eviction notices on the basis of a legal opinion provided by the Attorney General Ministry that the writs had expired. In its editorial, The Globe and Mail commented, "not two weeks ago, in as shabby an act of political opportunism as we ever want to witness, the Attorney General's Office sought to obstruct the serving of eviction notices upon the residents of Toronto Islands, and, in so doing, it plainly and simply interfered with the due course of the law." The Attorney General's representative said the government department was merely fulfilling the proper function of providing legal advice to one of its branches — the Sheriff's Office. Was this a fair comment for a newspaper to make, or was it, as the Attorney General's representative argued, an "unprovoked, unjusti- fied, libellous and scurrilous attack by The Globe and Mail on the Ministry of the Attorney General, which includes the Sheriff's Of- fice"? And if in fact it was libellous, should the Attorney General be required to sue for defamation rather than invoke the judicial remedy of contempt? A courageous newspaper must face the question of contempt when- ever it decides to comment or take a stand on any matter that is before the courts, or where judicial proceedings are imminent. Indeed, some lawyers routinely send notices to the media advising them that a matter is sub judice. Such notices could be viewed merely as an attempt to inform the media of a relevant factor to take into account when re- porting on these issues, or as a blatant attempt to intimidate the media. The present law of contempt may appear to be grossly oppressive. It may seem to make little sense that a matter that is the subject of legitimate public discussion before legal proceedings begin should be any less freely discussed just because a court is considering some aspect of it. The reason for the doctrine of contempt is to protect the image of the judicial system, to allow courts to run smoothly and harmoniously and to protect the parties to judicial proceedings from outside interference or "trial by the press." Although not everyone finds the courts competent and unbiased, they are usually a better mechanism for settling disputes than some of the alternatives, such as violence and political manipulation. To a large What to Do and Say and What to Avoid 49 extent, the courts are independent of politics, and are often the only place where the rich and poor may appear on a relatively equal footing. For these reasons, there is a legitimate public interest in protecting the judicial system from unwarranted abuse. However, at times the con- tempt power may go too far in curtailing freedom of speech; for ex- ample, if it prohibits statements that do not interfere with the proceedings of a specific court or harm the chances of success of any party, but merely cast doubt upon the integrity of the judges in general, as happened when the editors of a student newspaper were cited for contempt for writing that the New Brunswick courts were "tools of the corporate elite." 1 Whenever they are involved in litigation, public interest groups and their lawyers find themselves faced with the problem of finding the delicate line between legitimate comment and contempt of court. Con- tempt ranges from throwing a rock at a judge to reporting only one side of a case. Like many of the doctrines discussed in this book, contempt is vague and therefore open to abuse. But despite the grey areas, there are extremes at each end of the spectrum that are clearly contempt or clearly not contempt. A discussion of the principles in- volved should help public interest advocates to recognize those ex- tremes and help their lawyers give advice quickly when necessary. WHAT KINDS OF CONTEMPT ARE THERE? There are several kinds of contempt. Some are based primarily on one of the policy considerations mentioned above, such as ensuring that the parties get a fair trial, while others focus on another, such as protecting the public image of the courts. Often, these considerations, as well as the different kinds of contempt, overlap. Civil contempt Contempt can be divided into criminal contempt and civil contempt, although the actual dividing line between the two is far from clear. Civil contempt consists primarily of one of the participants in a lawsuit failing to comply with an order of the court. It also applies to anyone else who has knowledge of a court order and causes it to be breached; for example, individual employees who picket a factory knowing that the court has issued an injunction against picketing to the union. 2 The leading English text on the law of contempt describes civil contempt as a private wrong — a wrong done to the person who is entitled to the benefit of the court order — and thus an offence against that person. 3 But in Canada it also appears to be a public wrong. The 50 How to Fight for What's Right distinction between the "private" and "public" nature of this offence becomes blurred when one considers that contempt applies not only to the parties but also to others who breach the court's order. Because civil contempt is a "private" matter, contempt proceedings are usually initiated by the person suffering the harm rather than by the court. However, the Supreme Court of Canada has ruled that in some cases the court itself may initiate the proceedings for contempt. 4 Therefore, there is a strong argument that refusal to obey a court order is also a "public" wrong, because it is an offence against the court that made the order. Clearly, if people were free to ignore court orders, confidence in the effectiveness of the entire judicial process would be quickly un- dermined. This form of contempt therefore also serves a legitimate public interest. In most cases, defiance of a court order is no more effective than standing up in court and hurling invective at a judge. This is not normally a reasonable tactic to use. However, there may be cases where the court issues an injunction (for example, against a peaceful civil liberties march or against a union picketing) that appears so unfair that public interest advocates are sorely tempted to defy it. History will likely record that Martin Luther King was right, and the judges wrong, when he and thousands of blacks defied court orders against their peaceful protests in the southern states. Criminal contempt Criminal contempt may be committed in the presence of the court ("contempt in the face of the court" or "contempt in facie curiae") or outside of the courtroom ("constructive contempt" or "contempt ex facie curiae"). There are borderline cases, such as a noisy dem- onstration on the courthouse steps or in the corridors of a courthouse, that could be considered as either contempt in the face of the court or constructive contempt because it is unclear whether they are committed in the judge's "presence." WHAT ACTIVITIES ARE CLASSIFIED AS CONTEMPT? There are five main activities that can be classified as contempt: • misbehaving in court • obstructing justice • scandalizing the court What to Do and Say and What to Avoid 51 • disobeying a court order • making statements that are likely to influence the outcome of a trial or to influence the public perception of the trial (the subjudice rule) These forms of contempt are improper whether done in the context of a criminal trial or a civil one. In this sense, the term "criminal con- tempt" is confusing. "Criminal" and "civil" in this context refer to the kinds of actions the "contemptuous" person engages in, rather than the forum towards which he is contemptuous. The reason these forms of contempt are considered criminal rather than civil is that the wrong is primarily a public wrong, an affront to the public interest in maintaining the proper administration of justice. Even this statement must be qualified, however. Just as civil con- tempt may have a public aspect, criminal contempt has a private aspect, as the purpose of criminal contempt is not only to protect the image and smooth functioning of the courts, but also to ensure that the parties to the legal proceedings have a fair trial, free from interference. Thus criminal contempt may also have both public and private aspects, which acquire different emphasis in different circumstances. Misbehaving in court This offence is traditionally described as making noise or causing any disturbance that interrupts the courtroom proceedings. 5 The disturbance would obviously include singing, shouting, taking off one's clothes or throwing a book at the judge after he has' 'thrown the book at you.'' It could also apply to less overt action such as exaggerated coughing, making faces or even applauding. 6 The offence may also be committed by actions that do not actually interfere in any way with the physical flow of proceedings, but which nevertheless detract from the dignity of the court, such as an accused refusing to stand as the judge enters the courtroom, a lawyer asking the judge to disqualify himself without giving reasons, or even smoking or wearing a hat in the courtroom contrary to a court order to refrain. 7 There is obviously a danger in extending the concept of misbehaviour from physical disruption to more subtle forms of disrespect. The danger is enhanced by the fact that misbehaviour committed in the presence of the judge may be punished immediately by that very judge (subject, however, to a right of appeal from both the judge's decision and his sentence). Because the courts are aware of this danger, it is unlikely that any judge will proceed to punish someone for this form of contempt unless it is flagrant or continued, and unless the judge has first given 52 How to Fight for What's Right warnings that he considers it contemptuous. Again, this is not of too much concern to us, because it would be rare for a public interest advocate to consider the tactic of disrupting courtroom proceedings. Disobeying a court order In addition to being a civil contempt, disobeying a court order can be a criminal contempt. It is a criminal contempt if the order is one made by a criminal court. In fact, disobeying a court's order in a criminal case is also an offence under sections 8 and 116 of the Criminal Code. Obstructing justice Obstructing justice has been described as "those acts having the effect of interfering with the orderly administration of justice by corrupting, perverting or defeating its course." 8 Even an unsuccessful attempt to do this could be contempt. Most forms of obstructing justice are dealt with in specific sections of the Criminal Code, which creates offences such as bribery of judicial officers, perjury and swearing false affi- davits. A partial list of such offences can be found in the Law Reform Commission of Canada's Working Paper on Contempt of Court. Ob- viously, such offences would also be contempt. It is quite likely that there are similar offences not specifically referred to in the Criminal Code that could also be considered contempt because they have the effect of obstructing justice. This form of contempt is also of little interest to public interest groups. Obviously, anyone who attempts to bribe a judge or a witness deserves whatever he gets. Because they straddle the thin line between legitimate comment and abuse of the judicial process, the offences of scandalizing the court and improper discussion of a matter that is sub judice are of greater interest. Scandalizing the court The Law Reform Commission describes this as any insulting, abusive or slanderous remark directed against the judge, as well as comments casting doubt upon his impartiality. 9 This applies to remarks made either inside or outside the courtroom. Borrie and Lowe, learned au- thors on contempt, break this offence down further into scurrilous abuse of a judge or jury and allegations of bias that impugn the neu- trality either of a judge or of the judicial system as a whole. 10 However, legitimate criticism of a judge's decision, or indeed of a judge in his personal capacity rather than in his judicial capacity, is not contempt. As one judge put it, "Provided members of the public abstain from imputing improper motives to those taking part in the What to Do and Say and What to Avoid 53 administration of justice, and are genuinely exercising a right of crit- icism, and not acting in malice or attempting to impair the adminis- tration of justice, they are immune."" Criticism may be vigorous, provided that it is made with reasonable courtesy, in good faith and without malice. 12 As a public interest advocate, you will sometimes be asked by the press for your reaction when a judge's decision is handed down. You will not always have time to reflect upon what you want to say, and sometimes the press may even try to put words into your mouth. If you are happy with the decision, there is nothing wrong with saying so. If you are unhappy with the decision, as a rule of thumb, you should be safe if you criticize the judgment itself, rather than the judge. There is nothing wrong with saying you are "disappointed" or that you are considering appealing the decision or advising your client to appeal. Nor would it be improper to state what your arguments to the judge were, or give your reasons for thinking a different decision would have been in the public interest; for example, telling the press that a decision of the courts that the Canadian Bill of Rights does not prevent discrimination against Indian women will create great hardship. It appears that "reasoned argument or expostulation" 13 is not contempt. One eminent judge has suggested that it is even appropriate to say that judges are mistaken and their decisions are erroneous; all he would ask is "that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism." 14 Scandalizing the court is a form of contempt in which certain forms of expression are clearly appropriate and others are not. To say that a certain decision will do great harm to large groups of people is appropriate. To say that the judge could not have reached that decision unless he was crazy or corrupt is clearly inappropriate. Between the two is a grey area. You may be approached for comment at a time when your emotions are running high. Unless you are particularly upset and throw caution to the wind, or unless you know the reporter very well and are being much "freer" in your conversation with him than you would normally be with a member of the press, it should not be difficult to avoid the grey area that may get you into trouble. If you initiated the proceedings, remember that you chose the forum, and must be prepared to live with the results of your choice of strategy. If you are a defendant or a lawyer for a defendant, you are not before the courts voluntarily; but if your group has chosen to initiate a pros- 54 How to Fight for What's Right ecution or an application for judicial review, you presumably have considered this a better way to achieve your goal than the alternatives, such as political lobbying and community organizing. If you lose, your remedy is to appeal, not to carp. The sub judice rule This is the most difficult aspect of contempt for public interest ad- vocates. It is the rule that restricts the right to report facts or express opinions on matters that are before the courts. It may also apply to some tribunals. The sub judice rule has given rise to more case law than any of the other branches of contempt. However, it is not clear to what extent it affects public interest litigants and their lawyers. Almost all of the litigation concerns newspapers and radio and tele- vision stations. Whether these restrictions also apply in the same way to public interest groups is a question that can and should be debated. The Body Politic case, however, was indicative of a situation where civil rights advocates placed themselves in some jeopardy of being found in contempt. In 1978, The Body Politic, a newspaper serving Canada's homo- sexual community, published an article entitled "Men Loving Boys Loving Men." It discussed sexual relations between men and boys. Unfortunately, the article appeared after a group of homosexual men had tortured and killed a 13-year-old boy in Toronto. The publishers were charged under the Criminal Code with using the mails to distribute "immoral, indecent or scurrilous" material, and the Toronto police seized the magazine's subscription records, its commercial lifeblood. Many viewed this charge and the seizure of the records as part of a pattern of harassment of homosexuals in the Toronto area by police. In such a highly charged situation it was inevitable that the case would be the subject of public comment. During the trial, a public rally was organized to express moral support and help raise a legal defence fund for The Body Politic. Several prominent people spoke at the rally, including the then Mayor of Toronto, John Sewell. Mayor Sewell said nothing about the trial itself, the charges or their merits. But his expression of support for the rights of homosexuals, while condoned by many, raised suggestions of impropriety in other circles. There was widespread comment on the timing of his statement and concern about whether it could influence the outcome of the trial. The court battle was lengthy and costly for the non-profit gay com- munity newspaper, but in the end, Judge Sidney Harris acquitted the publishers, remarking that on the basis of the issues before him, The What to Do and Say and What to Avoid 55 Body Politic was a "serious journal of news and opinion." Supporters of freedom of the press and gay rights were pleased by the verdict. Some weeks later, however, the Attorney General of Ontario decided to appeal the verdict. On February 6, 1980, an advertisement covering almost a full page appeared in Toronto's Globe and Mail. In the centre was a bold black headline: "We urge the Attorney General of Ontario to drop the appeal against The Body Politic." In small type, the ad said: This decision to appeal is an attack on the freedom of a minority to express its views. It will drain the energy and financial resources of the gay community's principal newspaper and will further weaken that community's capacity to make its views known. Moreover, the effect of this appeal, whatever the intention, will be to punish people who have been found not guilty in the courts. We urge the Attorney General to drop the appeal and to restore the reputation of his department for the fair and equal treatment of minor- ities. The ad included the names of approximately 800 individuals and or- ganizations. It was paid for by the signatories and was placed by The Body Politic Free the Press Fund. At the bottom was an address to send donations to the fund, care of a Toronto law firm. Mayor Sewell's statement was carefully scrutinized by a lawyer to ensure it was not in contempt of court, and so, undoubtedly, was the newspaper advertisement. Nevertheless, the activities of Mayor Sew- ell, the organizers of the public rally, the signatories of the advertise- ment and The Body Politic Free the Press Fund raise the question of what the public can and can't say during the course of a trial or public inquiry, and what statements or activities may leave them open to a citation for contempt of court. THE SUB JUDICE RULE IN DETAIL: What is a prejudicial statement? In general, any statement that prejudices the course of civil or criminal proceedings is contempt. However, it is next to impossible to prove that any particular statement has actually prejudiced a judge or jury. Therefore, the cases speak of statements "calculated," "tending" or "likely" to prejudice the court. Even if it turns out that the court has not actually been prejudiced, a statement may be contemptuous if it imposed a real risk of prejudice. 56 How to Fight for What's Right A statement is at greater risk of being considered contemptuous if there is a jury, which may be impressionable, than if the case is being heard by a judge alone, who is presumed to be somewhat resistant to this kind of influence. Similarly, a statement is more likely to be prejudicial if it is made before or during a trial rather than after it. There is presumed to be more likelihood of prejudice before a trial than between the time of the trial decision and the outcome of an appeal. Moreover, the closer the timing of the statement to the actual trial, the more likely it is to be considered prejudicial. Because of the greater stigma, potentially stiffer penalties, and be- cause the accused is before the court involuntarily in criminal pro- ceedings, statements made about criminal trials are likely to be scrutinized more carefully than those made about civil proceedings. If there is a real risk of prejudice, a person may be cited for contempt even if he did not intend any prejudice, and, in fact, even if he did not know about the existence of the judicial proceedings. But if there is neither any real likelihood of prejudice nor any intention to create prejudice, statements will not be considered contemptuous. What is the difference between reporting and commenting? In determining what is likely to prejudice proceedings, you must make a distinction between reporting and commenting. Once proceedings are "imminent" or "pending" (the exact point at which a statement can be considered prejudicial is questionable) and while they are in progress, it is permissible to provide an accurate and balanced report of the proceedings, but you cannot publicly express opinions about them. There is no doubt that once a trial has actually started, the media may report what is actually said in the courtroom in a balanced and factual manner, unless the judge imposes a ban on publications, holds the hearing in camera, or is holding a hearing into the voluntariness of a confession or admission by a defendant. After proceedings are finished (again, the exact point when this occurs is unclear), it is permissible to comment. There are several good reasons for suppressing comment during the course of proceedings and for ensuring that reporting is factual and balanced. The law of evidence carefully screens the facts to ensure that only evidence that is useful to prove guilt or innocence comes to the attention of the judge or jury. If the media were permitted to bring inadmissible evidence to their attention, this could undermine the ju- dicial process. Moreover, any newspaper report that tells only one side What to Do and Say and What to Avoid 57 of the story or prejudges the very issues the judge and jury are to determine also undermines the process. What is the proper conduct for an individual in regard to contempt? Although there are many cases discussing the proper conduct of the media, there are very few that consider what is appropriate behaviour of others. It is difficult to say whether the rule that both sides of the story must be told, and that no comments can be made during the course of the proceedings, applies only to the media, or also to parties to the proceedings, witnesses or prominent individuals who might be asked to comment. An examination of cases where this issue has arisen does provide some insights. In one case, a police officer in the public relations bureau of the Montreal police force issued a press release about a case. 15 The release said that, following lengthy investigations by the bureau responsible for organized crime, charges had been laid against a person who had been seen with members of the Mafia many times, and that more charges would soon be laid. The court held that this was contempt. Even if the facts were true, the publication of them abused one of the parties to the action and could have prejudiced the public against him before the case was heard. The court held that the truth of the published facts is not a defence to contempt if the fact is likely to prejudice a party, to prejudge the case or to prevent justice being done. The court did not criticize the fact that the police issued a press release stating that charges had been laid or setting out the contents of those charges. But because the release mentioned that more charges would be laid and made a connection between the accused and orga- nized crime, it was contemptuous. "It would be difficult," the judge said, "to imagine a more flagrant example of an attempt to discredit a party in an action and to have a cause prejudged by public opinion." The court added that in this case there was no need to resolve the conflict that often arises between the fundamental principles of freedom of the press and the right of citizens to be tried by an impartial court free of undue pressure. The police had a direct interest in prosecuting the accused and the tone of the release indicated "a desire to poison public opinion and convince the community that the accused was guilty." The court stated that the police have a more demanding duty towards the administration of justice than the average citizen, and therefore they must be more careful about what they say. 58 How to Fight for What's Right In another case, a lawyer who was representing a person accused of a criminal offence was cited for contempt as a result of a television interview he gave during the trial. 16 In the interview, he had merely repeated the contents of an argument he had made in court before the judge. The judge hearing the contempt charge stated that although he did not condone the lawyer's "thoughtless" interview, he did not consider it to amount to contempt. He added that the possible con- sequences of such an interview could in some circumstances include contempt of court. He also hinted strongly that, although the lawyer's conduct did not amount to contempt, it might violate the "traditions or the customs of the Bar, or any rule of the Law Society that might govern interviews between lawyers and the press." By this time, the lawyer himself was acknowledging that in retrospect his decision to be interviewed had been "inappropriate." What about individuals and the media? There are also several cases involving individuals who gave interviews to the media. In one case, the mother of a mentally retarded child who was charged with killing his teacher gave an interview to a radio station. The interview was part of a program commenting on the need for better facilities to treat disturbed children. In the interview, the boy's mother made numerous statements that indicated that he was guilty. Many of her statements would not have been admissible in court, according to the rules of evidence. The radio reporter took some care not to reveal the identity of the mother or child, but the case was so notorious that anyone who had read the newspapers would know who the boy was. The mother was not held in contempt, but the reporter and his employer were. The court said that if an experienced reporter conducts an interview with a well-meaning but unsophisticated person, the reporter and his employer must take responsibility not only for the reporter's statements, but also for any remarks made by the person responding to his questions. 17 In other similar cases, neither the interviewer nor the person being interviewed was found guilty of contempt. In one such case, a person gave a speech that was reported by the press. 18 In another, a witness to a murder described to the press what she had seen and heard, and they reported it. 19 Also, a member of the Toronto municipal council gave two interviews to the media. In 1968, a group of hippies held a sit-in on Yorkville Avenue, centre of Toronto's "counter-culture." They wanted the city council to close the street to traffic and turn it into a pedestrian mall. Every night the street was one long traffic jam, What to Do and Say and What to Avoid 59 as tourists and suburbanites drove through gawking at the colourful inhabitants of the area. In the first interview, the former Toronto mayor Alan Lamport said that he was going to "urge" the courts to impose a heavy penalty against the demonstrators, who had been charged with blocking traffic. In the second interview, he said he "hoped" a heavy penalty would be imposed. 20 In all these cases, the court found that there was no real likelihood of prejudice to the accused. What is the liability of the speaker? Do the same restrictions that apply to the media also apply to someone who talks to the press or makes a speech? There are too few such cases for any clear principles to emerge. If the term "publish" is used in the same sense that it is used in defamation actions (see chapter 10), that is, making any public statement to a third party, it is possible that the same rules would apply to both the person making the statement and the person reporting it. The case involving the Montreal police attributed this meaning to the word publication. The court said that even if the newspapers did not use this press release in writing their stories, it was "published" as soon as the information was delivered to persons by any means. Even so, this case does not suggest that the interviewer and the person who gives a speech that the newspaper reports would be treated exactly alike. In the Montreal police case, the judge imposed a more stringent duty on the police, who have a direct interest in the outcome of the case, than on the press. On the other hand, in the case involving the retarded boy and his mother, the court absolved the mother from all responsibility for any effect her statements might have on the fairness of the trial and imposed it on the reporter and the radio station. Thus, it would seem that in some cases the duty of the person making the statement may be greater than that of the media and in other cases it might be less. Whether the person making the statement or the media reporting it are responsible for the contempt would vary with the circumstances in each case. The more sophisticated and experienced the speaker, and the more he is involved in the case and affected by its outcome, the more likely he is to have some responsibility for any contempt caused by the publication of his statement. The liability of a speaker may depend to some extent on whether he is considered to be the "publisher." If publication is given the meaning it has in defamation cases, it would include almost any public utterance. On the other hand, if publication is given its more com- monplace meaning, then the same rules should not necessarily apply 60 How to Fight for What's Right to speakers as to reporters. To determine this will require a ruling from higher courts on whether the ruling of the judge on the meaning of "publication" in the Montreal police case is correct. Borrie and Lowe, who have written the most up-to-date book on contempt, refer to the sub judice rule as "contempt by publications," implying that only those involved with publishing the statements (i.e., the media) are subject to this rule. Another English text, in listing classes of individ- uals who are liable for this form of contempt, mentions newspaper reporters, editors and others associated with the production of publi- cations, but not their sources. 21 Yet the Law Reform Commission of Canada states that the purpose of the sub judice rule is to prevent publications or public statements that take a position on a current trial and thereby affect the climate of impartiality, or directly influence court officials or the public. The Law Reform Commission has described the offence as "attempting to influence the outcome of a trial." If this definition is accepted, then anyone who attempts to influence the outcome of a trial by making statements calculated to bias the judge or jury or intimidate witnesses would be subject to contempt proceedings regardless of whether the comments are published. The extent to which the sub judice rule is restricted to the media or applies to anyone who makes a statement in someone else's presence is therefore still an open question. There is a problem in deciding what you should say or not say between the time when you consider launching a legal action and the time when it comes to court. If the matter is one of broad public interest, it would seem sensible for you to have the right to issue a press release an- nouncing your intention to issue a writ or announcing the actual is- suance of the writ. It would also seem reasonable for you to respond to factual questions from reporters about the issues in the case and your reasons for bringing it. Probably, if you do not cast any aspersions on the court itself or attempt to prejudge the issues or prejudice the outcome of the case, you are on safe ground to inform the press of the issues without expressing opinions about their merits. You should try to refrain from commenting on the very issues that the court is to decide, or otherwise attempt to "puff" the merits of your case or denigrate the merits of the opposite party's case. What to Do and Say and What to Avoid 61 Nevertheless, since the purpose of contempt is not only to protect the reality of justice but also the appearance of justice, and to protect the abstract image of courts in general as well as particular judges and litigants, there is always a danger of crossing the fine line between factual statements and opinion, or between fair comment and scurrilous criticism. The liability of public interest groups with respect to con- tempt is largely unexplored territory. If you are asked to give an interview about your own case or someone else's while it is being heard, it would be wise to get a legal opinion first. CONCLUSION The possibility of being cited for contempt is not generally a serious threat to public interest advocates. Nevertheless, as public interest groups and their lawyers continue to bring key issues into the courts, it is likely that their opponents will attempt more and more frequently to silence them. The best way to avoid contempt is to discuss public statements with your lawyer before you make them if there is any possibility that they could influence the outcome of a hearing or upset a judge. 6. LEGAL TRAPS AND TACTICS: MAINTENANCE AND CHAMPERTY WHAT ARE MAINTENANCE AND CHAMPERTY? Few people could engage in any form of public interest advocacy, be it litigation, leafletting, organizing demonstrations or running for pub- lic office, without the help and support of other members of the com- munity. It is normal and desirable for caring people to lend a hand to advance a worthy cause or alleviate injustice in our society. However, individuals and groups who promote or support public interest litigation run the risk of being sued by the party on the other side of the lawsuit. The risk of such a suit is very small and has not materialized; never- theless, because maintenance and champerty suits are a potential har- assment technique, you should know something about them. Organizers of a "defence fund," lawyers and expert witnesses who donate their services, and individuals and groups who donate money to defray legal costs should be aware of the torts of maintenance and champerty. Maintenance is the promotion or support of contentious legal proceedings by a "stranger" — a person who has no direct interest in the suit. Usually this "officious intermeddling" consists of providing financial assistance to one of the parties to a lawsuit, but it may also involve providing services. 1 It is possible that actively encouraging a party to continue legal proceedings that have little merit, or providing moral support because of malice towards the defendant, might also be considered maintenance. Champerty is an aggravated form of maintenance, in which the meddler's reason for supporting the lawsuit is that he has an agreement 62 Legal Traps and Tactics: Maintenance and Champerty 63 with one of the parties that he will get a share of the proceeds of the lawsuit or other profits that might be gained as a result of the suit. Like contempt, malicious prosecution and abuse of process, main- tenance is a form of abuse of legal procedures. It was formerly a crime as well as a civil wrong, but the prohibition against maintenance in Canada's Criminal Code was repealed long ago. We are concerned now only with the possibility that the opposite party in a lawsuit may launch a suit for damages against those who helped an individual or public interest group take legal action. Examples of maintenance in- clude a director of a company that had retained an expert to prepare a report about appliances sold by the company providing the expert with money to sue a newspaper for libel after it had criticized the report, 2 and a trade union bringing a libel action in one of its member's names against someone who had allegedly defamed the member. 3 The tort of maintenance has a valid basis in historical conditions. Maintenance "stems from a time when officious interference in liti- gation was a widespread evil, practised by powerful royal officials and nobles to oppress their vulnerable neighbours." 4 Like the law of con- tempt, the rule against supporting civil litigation is based on a desire to be fair to the parties in lawsuits, whose cases should be decided on their merits. The outcome should not be affected by such extraneous considerations as the malice of some third party. Although it made sense in older times, the rule of maintenance may be an anachronism today. According to Fleming, a leading authority on the law of torts, "its survival in modern law, though in greatly attenuated form, must be attributed to a persistent, if perhaps exag- gerated, fear that it is still needed as a safeguard against blackmail and speculation in lawsuits prone to increase litigation." 5 Unfortunately, however, the survival of the maintenance action may also stem from a very narrow view of the role of the courts. Tradi- tionally, judges have acted as if lawsuits involve only private interests and their outcome is of concern only to the parties. Courts and other public institutions have often been excessively concerned with private property and financial interests, to the detriment of broader social issues. While many lawsuits may be of interest merely to the parties, it is no longer true, if it ever was, that private lawsuits only raise issues of importance to their parties. Private lawsuits may raise issues of great interest and importance to the general public. Maintenance actions are rare today and there may be little justifi- cation for the continued existence of the tort. One possible justification 64 How to Fight for What's Right is that maintenance may yet find a new use in deterring powerful interests from promoting "harassment suits" against public interest advocates. For example, a trade association, in an attempt to silence a critic of harmful or dangerous practices by its members, might financially support a frivolous libel suit launched by one of its mem- bers against the critic. In such cases, it might be reassuring to know that a maintenance suit against the trade association is available to the critic. Of greater concern, however, is the possibility that wealthy de- fendants in public interest suits may use maintenance to sue storefront legal clinics, public interest groups, lawyers or others who support public interest plaintiffs. Maintenance could be used to harass and intimidate such groups. ON WHAT GROUNDS CAN A MAINTENANCE SUIT BE LAUNCHED? The following information will help you to determine whether you are open to a maintenance suit as a result of assisting in public interest litigation. 1. A person being prosecuted for a criminal or quasi-criminal offence cannot sue in maintenance. 6 Thus, the private prosecutor and those who assist him need not fear this action. If a defendant feels he is being persecuted, his proper remedy is a suit for malicious prosecution, which is very difficult to prove. Malicious prosecution is a tort that allows an accused who has been acquitted of a criminal charge to sue the person who laid the charges for damage to his reputation caused by the unfounded nature of the criminal charges. Recognizing the value of private law enforce- ment, the common law requires the defendant to prove two es- sential elements before the tort of malicious prosecution is established: (a) The informant must be found not to have had "reasonable and probable" grounds for laying the charge; (b) in addition, the informant must have acted with malice. 2. There is authority that the law of maintenance is confined to cases where a person improperly and for the purpose of stirring up litigation, encourages others to bring actions or to put forward defences that they have no right to make. Some courts have said that if an action has already been commenced before the assistance Legal Traps and Tactics: Maintenance and Champerty 65 is given, there is no "stirring up" of litigation. Thus, the timing of the assistance may be relevant. 7 3. In maintenance cases, the conduct of the person giving the as- sistance has usually been central, if not essential, to the existence of the litigation. Therefore the question is whether the litigation would have occurred without this assistance. If so, it is probable that a suit for maintenance cannot be brought against the assistor. 4. The person bringing a maintenance action cannot succeed without proof of actual loss. 8 Thus, unless the person suing for mainte- nance can actually show that he lost the original case and was put to additional expense or suffered some other loss as a result of the third party's involvement, his action will be unsuccessful. Of course, if his true purpose in bringing the maintenance action is to harass someone, and he is willing to pay the costs when he loses, winning won't matter to him. 5. Maintenance must be brought as a separate legal action and cannot be pleaded as a defence to an action. 9 If a defendant inserts an allegation of maintenance into his pleadings, it can be struck out as frivolous and vexatious. 6. The question of who initiates the helping relationship may be an important consideration. 10 If a person involved in legal proceed- ings approaches a potential benefactor and requests assistance, the benefactor seems less likely to be subject to a successful maintenance suit than if he had offered unsolicited assistance. By the same token, the benefactor will be in a better position to resist a maintenance suit if the idea of suing came from the plaintiff than if he suggested it to the plaintiff. 7. Most importantly, the motives of the person supporting litigation are an important consideration in determining whether he is acting properly. Both selfish and unselfish motives may justify support of litigation. Selfish motives are usually justified in terms of protecting one's own "interest." Unselfish motives are described as "charity." A special relationship with the person being sup- ported also justifies help. Whether this special relationship is an additional justification or evidence of the benefactor's charitable motives or legitimate interest is far from clear. The law states that if a person has a sufficient interest in the subject matter of the proceedings, his support of a party is justified or "priv- ileged." Like suits for inducing breach of contracts (see chapter 9), 66 How to Fight for What's Right a property or financial interest in the matter is sufficient justification for involvement. The interest may be indirect. For example, a trade union may support an employee's claim for lost wages," or a trade association might properly support a manufacturer. 12 The person as- sisted doesn't appear to have to be in danger of personally losing money or property as a direct result of losing the case in order to justify the assistance. Charitable motives may also justify intervention. In the case of inducing breach of contract and conspiracy, discussed in chapter 9, you will see that although selfish motives clearly provide a justification for interference with someone's business, it is uncertain whether al- truistic motives would be given the same weight. In the case of main- tenance, however, it is clear that someone who assists a pauper or a person who could not otherwise afford to assert his rights in court is doing nothing wrong, provided that his motives are sincere. 13 This still leaves several questions unanswered. There might be mixed motives — both a desire to advance the public interest and a desire to hurt the defendant. What then? Like inducement to breach a contract, perhaps the liability of the person providing help will depend upon which of the plaintiff's motives the court considered to be paramount. Another problem with justifying support of litigation on the grounds of "charity" is that charity has several different meanings. To some it only means helping the poor. To others, "charity" means any act of kindness or altruism. In some legal contexts, it has a very specific meaning restricted to such things as religious activities, providing educational facilities and helping the poor. Is the justification for assisting someone with litigation on the grounds of "charity" restricted to the traditional charitable objects of the relief of poverty, educational purposes and religion? On the basis of the cases decided to date, the answer is that it may be even narrower. ' 'Charity'' may be restricted to the relief of poverty. Probably the most that can be said is that, as Fleming puts it, the category of exceptions to maintenance is not closed. 14 WHAT ABOUT THE LIABILITY OF THE LAWYER? A public interest lawyer who provides free legal services to an indi- vidual or group is on fairly safe ground. Not only are his motives usually unimpeachable, but various legal codes of ethics support the right, and even the duty, of a lawyer to assist the poor and to take on Legal Traps and Tactics: Maintenance and Champerty 67 unpopular clients or causes, or cases that raise novel and difficult legal issues. A lawyer may provide free legal advice. Or, in appropriate cases, he may agree to reduce or waive his fee if the client loses his case, but charge the full fee if the client wins. The Canadian Bar Association Code of Professional Conduct, which has been adopted in whole or in part by several provincial Law Societies, says that it is in keeping with the best traditions of the legal profession to reduce or waive a fee in a situation where there is poverty or hardship, or the client or prospective client would otherwise effectively be deprived of legal advice or representation. Orkin, a writer on legal ethics, states that "it has always been proper for a solicitor to advance money for dis- bursements out of his own pocket or take a case without remuneration out of friendship or charity." 15 This is very different, however, from arranging with a client to take payment in the form of a share or percentage of the proceeds of the action. This so-called "contingency" fee is popular in the United States. However, in Canada it is champertous, except in provinces where it is permitted by legislation, subject to stringent rules to prevent abuse. These special considerations to mitigate against the possibility of a solicitor being sued for maintenance are all the more reason for the lawyer to be careful to separate his function as a legal advisor and his role as a participant in public interest activities. If the lawyer's activities can be seen as those of a client or meddler, rather than of a solicitor advising a client, he may lose this protection. For example, what is the proper characterization of organizing a defence fund? Is this a legitimate legal service to provide on behalf of an indigent client, friend or worthy cause — or is it an unjustified interference in someone else's action? Does the answer depend on whether the lawyer has been retained by one of the parties to the suit and is authorized by this "client" to provide this fund-raising service? If the lawyer is also before the court representing this party, is his position affected by whether his fee will be paid out of the money raised by the defence fund? The answers to such questions may depend on the circumstances of each case. WHAT IS THE LIABILITY OF THE LEGAL CLINIC OR PUBLIC INTEREST GROUP? What if the lawyer representing a public interest litigant is a salaried employee of a public interest group or legal clinic that raises the money 68 How to Fight for What's Right to cover disbursements in the suit, while the lawyer provides his serv- ices free of charge? It is an open question whether the organizations that employ "poverty law" and other "public interest" lawyers, such as civil liberties associations, native organizations, law school student legal services clinics and legal information, advice and assistance centres, could invoke the lawyer's obligation to provide access to the law in defence of a maintenance action against them for making the lawyer's services available, just as it is questionable whether they are bound by the lawyer's ethics. In many ways, these clinics are to the public interest lawyer what the law firm is to the private lawyer — the structure and framework in which he practises. Yet, while statutes, rules and codes of ethics define the relationship between the private law firm and each of the lawyers in it, they often fail to consider the relationship between the publicly funded "clinic" and its staff of lawyers and community legal workers. SOME TROUBLING ASPECTS OF MAINTENANCE There are two troubling aspects of maintenance. One is that it is unclear whether the justification for helping with a lawsuit is restricted to cases that fit into one of several common "pigeonholes," or whether it will be judged in the context of the individual case. In cases where the courts have found that an agreement was not maintenance, legal schol- ars usually explain this finding on the basis that the conduct was justified by "kinship," "common interest" or "charity." For ex- ample, if a person out of concern and affection assists his brother in litigation, the commentators would be inclined to explain why this is not maintenance by placing his relationship in the "kinship" category rather than by considering his motivation. This isn't necessarily the most logical way to justify the assistance or to explain the results of cases. Using this approach, a suitor who assists his fiancee would be guilty of a tort, while a brother assisting his sister for the same reason would not. What should matter in such a case is the person's motivation, not his or her bloodline. This dis- tinction is important in public interest cases, since the good Samaritan will have a greater chance of defeating a maintenance action if the law considers the purity of his motives or the public importance of the issues in the case. If he can only justify his beneficence by fitting himself into a particular pigeonhole of common interest or kinship such as "brother," "father," "trade union," "trade association" or "lawyer," he has less chance of success. Legal Traps and Tactics: Maintenance and Champerty 69 The second troublesome aspect is that, while some descriptions of the law merely state that stirring up litigation in which one has no interest is maintenance, others add that it is wrong to encourage people to enforce rights that they may not otherwise be disposed to enforce. The latter description, if it is accurate, is cause for concern by all public interest groups involved in litigation and their supporters. In public interest cases, the harm to the plaintiff is often not great enough to justify his bearing the financial burden of the case alone. It is a simple fact that most public interest lawsuits would not be taken without the support and encouragement of public interest groups, legal aid clinics, public interest lawyers and the like. The most important aspect of a public interest case is either the social issues it raises or clarification of the law — not the plaintiff's private interests. CONCLUSION Although the non-lawyer who gives financial support to public interest litigation does not have the lawyer's code of conduct to fall back on, so far there seems to be little evidence that maintenance suits are a serious threat to the good Samaritan. The behaviour that has led to maintenance suits has usually involved assistance that is essential to the litigation. Frequently it is a business arrangement. It is doubtful that many donors to a defence fund, volunteer organizers of a fund- raising event, or others who support litigation because they feel it involves some issue of great public importance, would be playing the kind of role that would make them subject to a maintenance suit. Nevertheless, whenever possible you should structure your involve- ment in such a way as not to lead anyone into the temptation of using maintenance or champerty as harassment techniques. 7. SEEKING AN ADJOURNMENT Obtaining an adjournment (postponement of a case) can sometimes be crucial to mounting an effective case. Adequate notice is seldom a problem in the courts, but when someone applies to a regulatory board for a licence or permission to undertake some activity, you might not have much warning. You might not have enough time to prepare your case, get legal aid funding or raise other funds to cover the cost of witnesses and lawyers. Under these circumstances, you may have no choice but to ask for an adjournment. Yet by asking for an adjournment, you might incon- venience the board and the other parties and appear to be deliberately delaying and disrupting the proceeding. Unless you approach the ques- tion of an adjournment very carefully, you may make a serious error in judgment. WHY SEEK ADJOURNMENTS? When you bring important issues before courts and tribunals on your own initiative, you have a great deal of freedom to choose the timing of making an application, laying a charge or issuing a writ. Subject to limitation periods that range generally from six months to six years, you can prepare your case to your satisfaction before starting the court or hearing process rolling. However, many examples of public interest advocacy occur in the context of an individual or community group reacting to the initiatives of government agencies or private businesses. For example, a gov- ernment agency may decide to extend a noisy highway through one's neighbourhood. The government may decide to cut off someone's unemployment insurance benefits or deny an injured worker compen- sation. A developer may apply for a licence to operate a polluting factory or for approval to build a housing subdivision on prime agri- cultural land. 70 Seeking an Adjournment 71 In these situations, you are often entitled to appeal the decision to a tribunal or request a hearing before a board. But in such circum- stances, you are reacting to someone else's initiative: that of the gov- ernment agency that made the adverse ruling or the person who applied for the licence or permit. There is usually a limited time in which to launch an appeal from a government decision — for example, you have thirty days to appeal a decision of the federal government to refuse you unemployment insurance benefits. If the law or government policy allows objectors to have an opportunity for a hearing before a licence or permit is issued, the board that holds such hearings may set a date for the hearing as soon as it receives the application, without consulting the objectors. This often means that, to protect your private interests or to further the public interest, you are required to meet the case against you or to argue against the case for issuing the licence on very short notice. Organizing the community, raising money, ob- taining information and hiring a lawyer between the time when you first learn about the opportunity for an appeal or a hearing and the date on which it is scheduled can be a difficult or impossible task. The amount of notice that boards, government departments or ap- plicants are required to give varies greatly. Sometimes a minimum notice period is required by law and other times it is a matter of policy. Frequently, the notice is relatively short. It may be adequate for a simple situation, but completely inadequate for a complex case. As a result, individuals and groups often do not have time to prepare their case properly, collect evidence and marshall witnesses. If a public interest group is not well organized or adequately funded, it may have to hire a lawyer at virtually the last minute. Occasionally, the group does not even have time to hire and properly brief counsel. Consequently, individuals or groups may come before the board on the appointed date for the hearing requesting an adjournment: a post- ponement of the proceedings until a later date. The reason may be that the person needs more time to hire a lawyer. Or the group's newly hired lawyer may ask the board for an adjournment because he has not had adequate time to prepare his case. If the board's rules or procedures do not provide a right to information about the opposite party's case, it may be necessary during the course of proceedings to ask for further adjournments to obtain evidence to rebut evidence or respond to issues that could not be anticipated. 72 How to Fight for What's Right HOW DO COURTS AND BOARDS RESPOND TO REQUESTS FOR ADJOURNMENTS? Boards are often reluctant to grant adjournments. Adjournments in- convenience the board and the other parties, particularly if the board members and many of the lawyers have had to travel long distances to be present at the hearing and if the request is made at the last minute. Therefore, requests for adjournment should be avoided wherever pos- sible. Even if the need for the adjournment results from matters beyond the control of the party requesting it and the board realizes that it must grant the adjournment to be fair, board members may unconsciously blame the party seeking the adjournment for the inconvenience this causes. Furthermore, if the community group appears to be continually seek- ing adjournments, its members may create the impression that they do not wish to deal with the case on its merits, but rather intend to delay and disrupt the proceedings in the hope of delaying the development. This perception can damage the credibility of the group and its counsel in the eyes of board members. The problem, of course, is not usually caused by any intention to obstruct, but by lack of funding, lack of information and inadequate notice. Boards are accustomed to giving the same amount of notice in every case, even though some cases are extremely complex and require a long time to analyze technical issues, while others are simple. In reality, it is often the inflexibility of the system that creates the need for adjournment; but because public interest advocates so frequently find themselves being forced to ask for an adjournment, the situation creates the impression that they are always seeking delay, and brings community groups into disrepute. One example of the acrimony this can lead to was featured in Toronto newspapers early in 1980 when the Canadian Transport Commission decided to hold public hearings before approving plans by Canadian Pacific to build a railway track through a residential area of Etobicoke. The residents feared that the track would increase rail traffic, noise and the chances of a major accident. On the first day of the hearings, the secretary of the local ratepayers' and residents' association told the tribunal that his group wanted an adjournment so that it could examine important facts that it believed were missing from the application by CP. The secretary also said his group was not given enough time to prepare its case and needed at least two months to raise enough money to hire a lawyer. Seeking an Adjournment 73 The chairman of the hearing denied the request. The outraged spokesman for the residents told the press, "They kicked us when we were down. I never dreamed that they would do this. After all, they wouldn't have had a hearing at all if we hadn't made a fuss." He called the hearing "a miscarriage of justice that verges on the gro- tesque." When these statements were read into the record, the residents' spokesman refused to retract the comments and told the chairman to his face that the hearing was a miscarriage of justice. "Never in my eleven years," said the chairman, "have I heard a remark like that. Go to the Federal Court of Canada if you don't like my conduct in the hearing." The ratepayers went without an official spokesman for most of the hearing, while CP had a staff of twelve, including a lawyer and a battery of technical experts to defend its application. It is far better to ask for an adjournment than to present a poorly prepared case. However, if at all possible, you should avoid seeking an adjournment. A request for an adjournment should be made only after every reasonable effort has been made to eliminate the need for the adjournment. HOW SHOULD AN ADJOURNMENT BE REQUESTED? If you cannot avoid asking for an adjournment, you should make your request as early as possible and you should never wait until the day of the hearing to make your request known to the board and the other parties. 1 If possible, you should seek the adjournment with the consent of the other parties. 2 If all parties agree to an adjournment well before the hearing date, and the board is informed of this, it is likely to grant the adjournment and reschedule the hearing for a later date. If the parties do not agree to an adjournment, check with the board to find out the procedure for requesting one, notifying the parties officially of your request and arguing for the adjournment. Often, the board will arrange a hearing at which you can argue for the adjournment, other parties can argue against it, and the board can make a ruling well in advance of the date scheduled for the hearings. There are two important reasons for making your request well in advance and informing the board and the other parties of your needs. The first, obviously, is courtesy. The second is that this will strengthen your case should it be necessary to challenge a board's refusal to grant an adjournment in the courts. 74 How to Fight for What's Right WHAT HAPPENS IF THE REQUEST FOR AN ADJOURNMENT IS DENIED? If your request for an adjournment is denied, you have three choices. You can proceed and do your best under the circumstances; you can withdraw from the hearings; or you can challenge the decision to refuse an adjournment in the courts. If it is possible to proceed without greatly prejudicing your case, this may be desirable. If it is impossible, it may be preferable to withdraw or to challenge the board's decision. However, if you with- draw from the hearings, this may preclude a later challenge of the board's procedures in the courts. 3 If you intend to ask the court to challenge any aspect of a board's hearings, it may be better to continue as a participant in the hearings pending the hearing by the court. If you decide to ask a court to order the board to grant the adjourn- ment, you may be successful in certain narrow circumstances. In gen- eral, boards have the right to control their proceedings to ensure that they flow smoothly. 4 No party has an absolute right to an adjournment. The board can refuse any request for an adjournment as long as the refusal does not violate the rules of "natural justice" or any of the statutory provisions and rules of procedure that govern its conduct. When a board is required to hold a hearing, depending upon the nature of its functions, it must conduct the hearing either in accordance with the rules of natural justice or with the requirement that it act fairly. The rules of natural justice include the ' 'audi alterant partem'' rule ("hear the other side"). This simply means that the board has a duty to give each party a reasonable opportunity to present its case. 5 In some cases, a refusal to grant an adjournment has been interpreted as a breach of this duty. Whether a refusal to grant an adjournment is a breach of the rules of natural justice depends upon the particular cir- cumstances of each case. 6 Other rules of natural justice include the requirement that a board not be biased in favour of one of the parties, and that it not act capriciously, wantonly or arbitrarily. 7 A board cannot be accused of arbitrary action in refusing an adjournment if it weighed the need for an adjournment against the rights of other parties to an expeditious decision. 8 Where a board is not required to hold a hearing, but does so anyway, it may not be required to follow the rules of natural justice, but it may have a duty to act "fairly." The requirements of fairness vary from board to board depending on the nature of its functions and the cir- Seeking an Adjournment 75 cumstances of each case. The fairness requirements are less stringent than the requirements of natural justice, and it is impossible to say exactly what fairness requires, because the courts have interpreted it differently in the last year or two from the way they treated it in the past, but in some circumstances the requirement of fairness will prob- ably encompass a right to an adjournment. When a request for an adjournment is based solely on the conven- ience of his lawyer, the party who is denied an adjournment cannot successfully argue that the board's refusal is a denial of justice. On the other hand, the board may not base a denial merely upon its own convenience. 9 CAN A DENIAL BE SUCCESSFULLY CHALLENGED? A challenge of a board's refusal to grant an adjournment is most likely to succeed if the request for the adjournment was based on factors beyond your control. For example, you may successfully argue that an adjournment was justified under the rules of natural justice if you had not received important information and had made prompt and reasonable attempts to obtain the information. Similarly, if an impor- tant witness is not in attendance and you have taken prior steps to secure his attendance, a refusal to grant an adjournment may be a denial of natural justice. For this reason, it is important to place all witnesses, even cooperative, reliable ones, under subpoena, if the board has the power to issue subpoenas. This way, you can show the board (and if necessary the court) that you made reasonable attempts to ensure that the witness would be there. If the court agrees that you were not given sufficient prior notice of hearings and consequently did not have a reasonable period of time to prepare, it may order an adjournment. What constitutes "sufficient notice" will vary from case to case. To a large extent this will depend upon the complexity of the issues before the board. Finally, the necessity and reasons for an adjournment must be made very clear to the board. When arguing for an adjournment before the board, keep in mind that these arguments, any arguments made against your request for an adjournment by other parties and the board's com- ments and ruling may be the only material a court gets an opportunity to review. Once you go to court, it may be too late to change or amplify your reasons for requesting an adjournment. A court will not respond favourably to a party that has asked a board for an adjournment for one reason but argues before the court that the adjournment should 76 How to Fight for What's Right have been granted for other reasons that were not presented to the board. As a matter of strategy, in making your arguments before the board and the courts, you might compare the amount of notice you were given with the length of time the proponent had to prepare his case. Although there is no legal authority to support the proposition that this is grounds for a court to overturn a refusal by a board to grant an adjournment, it may help persuade a court or board that your request is reasonable. Try to find out before the hearing how long the applicant took to prepare his application, the length of time between the date when the applicant first submitted an application for a licence and the date on which the applicant or the government formally requested a public hearing, and how long the government agency or agencies involved took to review the matter at hand. CONCLUSION The courts have been extremely reluctant to find that a board acted improperly by refusing to grant an adjournment. On the rare occasions when the courts have found impropriety, this has been based on a denial of natural justice; particularly the aspect of natural justice that requires a board to hear both sides of a case. If you hope to persuade a court that you have been denied natural justice, you must demonstrate that you have acted reasonably in seeking the adjournment. Generally, you should avoid asking for an adjourn- ment if at all possible. If an adjournment is essential, you must make the request promptly and on the basis of factors beyond your control. If you are denied an adjournment, acting reasonably may entail con- tinuing to participate in the hearings, since the board would be free to continue with the hearing and render a decision in your absence if you were to withdraw. If you think you may have a reasonable chance of success before the board without an adjournment or success in having the court order the board to grant an adjournment, it is advisable not to withdraw. Remember that success before boards and tribunals is often a matter of degree. You may not get all the benefits or compensation you feel you are entitled to, but you may be awarded a portion of them. You may not succeed in having an application refused, but you may succeed in having stringent conditions attached to the licence. Withdrawal may be the best strategy only in unusual circumstances: for example, where you feel that you would be hopelessly prejudiced by your lack of Seeking an Adjournment 77 resources, or reforming the process of the board by bringing its un- fairness to the attention of the public is more important than success on the specific application. If it is more important to successfully challenge a refusal to grant an adjournment than to embarrass the board by withdrawing, it is necessary to show the court that you have acted in a responsible and credible manner. Part III: Keeping Out of Court and Out of Trouble 8. DEMONSTRATIONS, PROTEST AND THE LAW The 1960s and 1970s were periods of social revolution, marked by protest marches and demonstrations sometimes involving millions of people. Public interest groups took to the streets to publicize and advocate their cause. People protested in favour of civil rights for black people, women, gay people, and against such things as nuclear weap- ons tests, nuclear power plants, the Vietnam War and the mass slaugh- ter of whales and baby seals. Arrests or charges during demonstrations can be the result of police harassment, ignorance of the law or a deliberate decision to engage in civil disobedience. It is important to be able to judge whether you are being harassed by the police or legitimately charged because you are impeding traffic. Chapter 8 deals with some of the legal, ethical and practical problems that can surface at demonstrations. Demonstrations and picket lines are prime examples of advocacy techniques that can land you in court. Such situations are highly charged, things can happen very fast, and it is easy to break the law or to be wrongly accused of breaking the law. People are often ignorant of the law until it's too late. You may not think about being arrested or charged with an offence because you are organizing or participating in a protest. If you do think about it in advance, there are many steps that can be taken to avoid problems. WHAT RIGHTS DOES A DEMONSTRATOR HAVE? A peaceful demonstration, rally or picket line is a perfectly legal method of making a point, as long as it stays within the law. The rights to demonstrate and picket arise from fundamental civil liberties: free- dom of speech and freedom of assembly. Written information can be displayed on signs or placards, or handed out in the form of pamphlets, 81 82 How to Fight for What's Right on the basis of a right closely related to freedom of speech: freedom of the press. Theorists disagree about whether these so-called "fundamental" rights are universal, absolute and immutable or subject to qualification. But for practical purposes, these rights or liberties must be treated as qualified rights. The Supreme Court of Canada has put it this way: It is to be remembered that the human rights and fundamental freedoms [are] the rights and freedoms of men living together in organized society subject to a rational, developed and civilized system of law which imposed certain limitations on the absolute liberty of the individual. 1 Thus, every person is free to say or do anything the laws do not forbid. He may associate with anyone with whom the laws do not forbid him to associate. Groups may assemble for any purpose, and at any time or place not prohibited by law. Since the limits of free speech, freedom of the press and freedom of assembly are largely determined by what is forbidden, the only practical way of describing their scope and limitations is to outline what a person may not do or say and assume that everything else is permitted. The laws that limit what can be done or said during a demonstration will be briefly described below. First let me describe some of the practical limitations of demonstrations that lead to the danger of a legal demonstration becoming in part illegal or becoming an opportunity for the arrest of innocent people, even though they have not broken any laws. Frequently, neither the organizers nor the participants have much control over who might attend and attempt to manipulate the dem- onstration. Although most demonstrations remain peaceful and orderly and there is frequently good cooperation between demonstrators and the authorities, some demonstrations have led to protesters being in- jured and even being killed by police. Others have led to mass arrests. And lawyers attending demonstrations to advise their clients have not been immune from arrest. LAWYERS AND DEMONSTRATIONS Demonstrations can lead to violence. Counter-demonstrators, radical fringe groups or individuals, the person or corporation whose activities are being protested or whose property is being picketed, police or other authorities and the demonstration organizers themselves may delib- erately or innocently cause trouble. A demonstration is, by its very nature, a potentially explosive sit- uation. It consists of a large gathering of people who are deeply com- Demonstrations, Protest and the Law 83 mitted to an issue or a point of view. There is often a program of speeches designed to intensify their conviction. Since the demonstra- tion's purpose is to bring attention to the issue, the media, invited or uninvited, often attend. The demonstration occurs in a public place where anyone can intrude and sometimes in a confined, crowded area. The police attend to keep the peace, in the expectation of trouble, and the "other side," the object of the unhappiness of the demonstrators, may often be nearby. The situation is particularly perilous for the public interest lawyer, who faces the double jeopardy of criminal conviction and discipline or disbarment. If he endeavours to assist his client at the demonstration, he risks circumstances that could place him in a position of breaking the law or of being arrested and possibly convicted of an offence he did not commit. Although most police in most Canadian cities are fair- minded, even-tempered people trying to do their job, some panic in situations like demonstrations. Others dislike demonstrators and par- ticularly resent the presence of lawyers at demonstrations. In 1970, Clayton Ruby, a Toronto lawyer, was arrested at a dem- onstration and charged with obstructing police. A well-known civil liberties lawyer whose clients often espoused unpopular causes, he was an obvious target for police resentment. While representing clients at an anti-Vietnam War demonstration, Mr. Ruby was trapped by a throng of demonstrators fleeing mounted police. According to Mr. Ruby, he was assaulted by a police officer who had removed his identification badge. When Mr. Ruby demanded to know the officer's badge number, the officer arrested him. Of course, the police officer had a different version of events. Fortunately, there were witnesses to the incident. At the trial a Provincial Court judge accepted the lawyer's version of events and that of his witnesses over the version of the arresting officer, and acquitted him on the basis of credibility. In 1977, a lawyer representing members of the Greenpeace Foun- dation accompanied his clients to the ice floes of Newfoundland, where the Greenpeacers were protesting the seal hunt. Although he was there merely as a legal advisor, when one of his clients seized a seal pup to "save" it from the hunters, the lawyer was charged along with his client for "interfering with the seal fishery" contrary to regulations under the Fisheries Act. He too was acquitted. At his lawyer's request, Judge G. W. Sea- bright wrote a letter setting out his reasons for acquittal: 84 How to Fight for What's Right I found the involvement of Mr. Ballem was one of solicitor and client relationship. Mr. Ballem at no time contravened the laws of the country. As I observed, one may look with envy upon the vigour with which Mr. Ballem fought to protect the rights of his client [the Greenpeace Organization] and his endeavours to obtain permits, so that he might accompany his clients to the ice. The Crown contends because of the foregoing, that the actions of Mr. Ballem should be considered under section 21(2) of the Criminal Code. I disagree with this argument and dismiss all charges against him. I should also like to comment on his willingness to attend court, and as well his conduct in court which I found to be impeccable. The only sin committed by Mr. Ballem, if one wishes to use that term, is that the vigour with which he protected his clients' rights can be the envy of the practising bar, and rather than to bring any disgrace on himself should certainly in my opinion bring honour. 2 The case of the solicitor, Peter Ballem, is merely the tip of the iceberg. The legal problems that protest attracts are not limited to violence or to mass marches. The strategies used by the Federal Government against Greenpeace illustrate the difficulty in staging a lawful protest if the government or some other powerful interest group decides to impede a group's efforts. Even if the protest only involves a few people, authorities can make it difficult or impossible for them to stay within the law. WHAT DOES THE LAW SAY ABOUT THE RIGHT TO DEMONSTRATE? The right to demonstrate is based upon freedom of speech, freedom of the press and freedom of assembly. The limitations on these free- doms are both criminal and civil. The limitations on freedom of speech and the press are a hodgepodge that defies categorization. But in general they prohibit statements that untruthfully harm the reputation of a person or group, and prohibit encouragement of criminal activity and encouragement of violence against individuals or the state. Freedom of assembly is concerned more with the choice of time and place and the physical activity of groups than with what they say. Limitations on freedom of assembly generally involve laws against interference with the movement of pedestrians or traffic and interfer- ence with public or private property. Demonstrations, Protest and the Law 85 Freedom of speech One of the most eloquent descriptions of the nature of freedom of speech was made by Lord Coleridge in 1909. It is equally valid today. A man may lawfully express his opinions on any matter, however distasteful, however repugnant to others, if, of course, he avoids de- famatory matter, or if he avoids anything that can be characterized as blasphemous or as an obscene libel. Matters of state, matters of policy, matters even of morals — all these are open to him. He may state his opinion freely, he may buttress it by argument, he may try to persuade others to share his views. Courts and juries are not the judges in such matters. For instance, if he thinks that either a despotism, or an oli- garchy, or even no government at all, is the best way of conducting human affairs, he is at perfect liberty to say so. He may assail politicians, he may attack governments, he may warn the executive of the day against taking a particular course; he may seek to show rebellions, insurrections, outrages, assassinations and such-like are the natural, the deplorable and the inevitable outcome of the policy which he is com- batting. All that is allowed, because all that is innocuous; but, on the other hand, if he makes use of language calculated to advocate or to incite others to public disorders, to wit, rebellions, insurrections, as- sassinations, outrages, or any physical force or violence of any kind, then, whatever his motives, whatever his intentions, there would be evidence on which a jury might, on which I should think a jury ought, and on which a jury would decide that he was guilty of a seditious publication. . . . 3 More specifically, freedom of speech during demonstrations is subject to the restrictions set out below. Disturbing the peace, mischief and obstructing police are charges that frequently arise out of demonstra- tions and picket lines. Other charges such as threatening and intimi- dation are much rarer. • Disturbing the peace. (Sections 171 and 172 of the Criminal Code.) Disorderly conduct in a public place, such as "fighting, screaming, shouting, swearing, singing, or using insulting or obscene language," or disturbing the peace and quiet of occupants of a dwelling (other than one's own home) is illegal. So is disturbing a religious service or a group gathered for some "moral, social, or benevolent purpose." • Obstructing Police. (Section 118 of the Criminal Code.) This section provides, in part, that: 86 How to Fight for What's Right Everyone who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person who is lawfully acting in aid of such an officer (b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so .. . is guilty of .. . (c) an indictable offence and is liable to imprisonment for two years, or (d) an offence punishable on summary conviction. Although, under this section, a variety of public officials (for example, gamewardens) may be "public officers" or "peace officers," the official most likely to be encountered during a demonstration or protest is the police officer. Clayton Ruby, a prominent criminal lawyer, discusses this in an article on "Obstructing a Police Officer." Ruby says it is unfortunate that our civil liberties are so often determined in the context of obstructing police and other similar charges, because "a judicial tendency to support police actions overshadows a need for a sensitive understanding of the problems of a society where human rights and individual liberties are preserved by law." According to Ruby: Political demonstrations may disclose a content that is anathema to the individual police officer. Many police officers have a need to "teach a lesson'' to those who do not display the proper humility and respect, or to those who question police authority. It is not accidental that these charges are used disproportionately against the young, the long-haired, the political and racial minorities. The charge is open to use as a "cov- erup" for assault by the police in that it explains injuries suffered by accused persons. 4 "Obstructing" may consist of words or actions. Anyone arrested has a right to know the reason for his charge. If an arresting police officer refuses to tell the reason for the arrest, it appears that the arrested person has a right to resist arrest verbally and, within reason, even physically. However, it's usually safest and wisest not to use physical force to resist arrest. Moreover, a friend or a lawyer cannot help a person being arrested to physically resist an unlawful arrest. Anyone Demonstrations, Protest and the Law 87 who interferes with someone else's arrest is in danger of being charged himself with obstructing police. However, mere criticism or questioning of a police officer is not an obstruction, whether it is done by the arrested person, his lawyer, a friend or a stranger. 5 Inciting a crowd to rescue someone being ap- prehended by police, on the other hand, is likely to be obstruction. You are not obstructing merely because you insist on explaining to the officer why you should not be arrested. You may make "inquiries, arguments and protests.' ' 6 The person being arrested or someone speak- ing for him can't be charged with obstruction because he asks the reason for arrest or tries to make a statement in answer to the reason he is given, unless this right is exercised in a manner that is intemperate, unduly persistent, irrelevant or made in an unreasonable manner. 7 If a police officer is abusive or threatening during a demonstration or exceeds his legal power, it is probably unwise to argue with him even though you have a right to do so. Deal with his superior if possible. Get his badge number and, if possible, his name. It is better to deal with his behaviour in another forum and at a later date than to risk escalating a disagreement into an arrest or charges against you. If you are arrested, you have the right to remain silent, except that you must give your name if requested to when you are found com- mitting an offence. Whether the alleged offence is a minor (summary conviction) offence or a major (indictable) one, refusing to answer an officer's question as to your identity may constitute an obstruction. Earlier cases led many lawyers to believe that in summary conviction cases it was not an obstruction to refuse to identify yourself to a police officer, and so advised their clients. But in 1978 the Supreme Court of Canada ruled that a person stopped while committing an offence must identify himself to the police officer, even if the alleged offence was merely riding a bicycle in contravention of the traffic laws. 8 If the police stop you some time before or after an alleged summary offence is committed, rather than during its progress, it appears that you do not have to identify yourself. For example, let's say that some- one had been seen riding a red bicycle through a stop light several hours before you entered a street walking alongside your bicycle — a scarlet-coloured one — and police stopped you to question you. It would be difficult for a police officer to establish that you were detained in the process of committing an offence, and it would not be "ob- struction" if you refused to identify yourself to him. Nevertheless, if there is any doubt whether you were detained during the course of an 88 How to Fight for What's Right offence, the courts will undoubtedly resolve it in the police officer's favour.. Beyond giving your name and address if questioned by the police, in most cases it is wisest to remain silent until you have consulted a lawyer. This is your right. It is always better to remain silent than to tell police a false story. This in itself may constitute obstruction of police, even if you have done nothing else wrong. As a good citizen, by all means be cooperative with police wherever possible. But if you are arrested or charged with an offence, unless you are sure the charge is a very minor one, a good policy is to tell the police politely and firmly, "Officer, I would like to cooperate with you as fully as possible, but under the circumstances, since I understand that you may use anything I say against me, I would like to discuss this with a lawyer before discussing it with you." • Mischief. (Section 387 of the Criminal Code.) This offence is com- mitted by wilfully doing an act that "obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property, or obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property" (or by wilfully refraining from doing some act with the same result). This offence usually consists of damaging or destroying property, but obstructing access to property might also qualify. • Threatening. (Section 745 of the Criminal Code.) Section 745 is often referred to as the "threatening" section of the Code, but it does not create a punishable offence or even mention threatening. It says that "any person who fears that another person will cause personal injury to him or his wife or child or damage his property, may lay an information before a Justice." The section applies only when someone has spoken words that might reasonably be construed as a threat and when the person who heard the words actually believes he is in some danger. Mere gestures are not "threats." If the Justice believes there is a potential danger, he may order the defendant to enter into a recognizance to keep the peace for up to a year. He may also impose any other reasonable condition the court considers desirable for securing the defendant's good conduct. Demonstrations, Protest and the Law 89 • Intimidation. (Section 381 of the Criminal Code.) The actual "threat- ening" or "intimidation" section of the Code is section 381. The portions of that section that are relevant to freedom of speech are as follows: Everybody who, wrongfully and without lawful authority, for the pur- pose of compelling another person to abstain from doing anything that he has a lawful right to do, or to do anything that he has a lawful right to abstain from doing, (a) uses violence or threats of violence to that person or to his wife or children, or injures his property, (b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, a violence or other injury will be done to or punishment inflicted upon him or a relative of his, or that the property of any of them will be damaged .. . is guilty of an offence punishable on summary conviction. • Sedition and Seditious Libel. (Sections 60, 61 and 62 of the Criminal Code.) Everyone who speaks seditious words, publishes a seditious libel or is a party to a seditious conspiracy is guilty of an indictable offence and is liable to imprisonment up to 14 years. A person is assumed to have a seditious intention if he teaches, advocates, pub- lishes or circulates any writing that advocates the use of force as a means of accomplishing governmental change in Canada. However, no one is deemed to have a seditious intention if he only intends, in good faith, (a) to show that Her Majesty has been misled or mistaken in her measures; (b) to point out errors or defects in (i) the government or constitution of Canada or a province, (ii) the Parliament of Canada or the Legislature of a province, or (iii) the administration of justice in Canada; (c) to procure, by lawful means, the alteration of any matter of gov- ernment in Canada; (d) to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between classes of people in Canada. 90 How to Fight for What's Right • Obscenity. Under Section 159 of the Criminal Code, everyone com- mits an offence who: (a) makes, prints, publishes, distributes, circulates or has in his pos- session for the purposes of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatsoever, or (b) ... a crime comic. Section 159(2) provides in part, that Everyone commits an offence who, knowingly, without lawful justi- fication or excuse, (a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or any other thing whatsoever, (b) publicly exhibits a disgusting object or an indecent show. To be obscene, a publication must have as a dominant characteristic "undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence." The motives of an accused are irrelevant and his lack of knowledge of the matter or presence of the obscene matter is not a defence. However, he cannot be convicted if he can establish that some public good was served by the acts alleged to constitute the offence, and that they did not extend beyond what served the public good. • Hate Propaganda and Hate Literature {Sections 281.1, 282.2 and 281.3 of the Criminal Code.) These sections prohibit anyone from advocating or promoting genocide, and from inciting hatred of any identifiable group by any public statement where such incitement is likely to lead to a breach of the peace. The section also prohibits any statements, other than in private conversation, which wilfully promote hatred against any identifiable group. • Defamatory Libel. (Sections 262 and 280 of the Criminal Code.) In addition to seditious libel, mentioned above, the Criminal Code makes defamatory libel subject to penal sanctions. Defamatory libel is published matter that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed Demonstrations, Protest and the Law 91 to insult him. A defamatory libel may be expressed directly or by insinuation or irony. It may consist of words or objects. It is also an offence to extort money or induce someone to confer on someone or procure for someone "an appointment or office or profit or trust" by publishing, threatening to publish or offering to abstain from publishing a defamatory libel. A newspaper publisher is responsible for any defamatory matter contained in his publication, unless he can prove that it was inserted without his knowledge and without negligence on his part. But no one is legally responsible for defamatory matter in a newspaper merely because he sells the paper, unless he knows it contains that particular defamatory matter or knows that defamatory matter is habitually con- tained in that newspaper. • Counselling. (Section 422 of the Criminal Code.) (a) Everyone who counsels, procures or incites a person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and is liable to the same punishment to which a person who attempts to commit that offence is liable; and (b) everyone who counsels, procures or incites another person to commit an offence punishable on summary conviction, is, if the offence is not committed, guilty of an offence punishable on summary conviction. If the offence is committed, the person who counselled it may be part of a punishable conspiracy. In addition to these offences, it is an offence to encourage someone to commit a crime or to assist him or conspire with him. • Conspiracy. (Section 424 of the Criminal Code.) This section pro- vides in part that: Everyone who conspires with anyone (a) to effect an unlawful purpose, or (b) to effect a lawful purpose by an unlawful means, is guilty of an offence and is liable to imprisonment for two years. Although this section has been little used against demonstrators, it is a potentially powerful weapon in the hands of the police. For example, 92 How to Fight for What's Right planning to occupy the site of a future nuclear plant may be a criminal conspiracy. • Attempt and Accessory to the Fact. (Section 421 of the Criminal Code.) Even attempting unsuccessfully to commit an offence or as- sisting someone after the fact is an offence. • Civil Wrongs. The main civil restrictions on freedom of the press and freedom of speech are civil defamation, consisting of libel and slander (see chapter 10), and contempt of court (see chapter 5). Freedom of assembly Freedom of assembly refers to the right of people to congregate phys- ically in one place. The location and manner of congregation may be restricted by criminal and civil laws designed to keep public order and to protect public and private property and promote public safety. Free- dom of assembly is subject to the following restrictions. • Unlawful assembly. (Section 64 of the Criminal Code.) An assembly of three or more people may be unlawful if it needlessly and without reasonable cause provokes others to disturb the peace tumultuously, or if it gives others in the neighbourhood reasonable grounds to fear that the people assembled will do so. Walter Tarnopolsky, an expert on civil liberties, suggests that "obviously a line must be drawn be- tween a situation where the fault for the ensuing disturbance lies with those in the assembly, and the situation where the fault lies with those who oppose it or create the disturbance without any action on the part of those in the assembly which could be reasonably taken to be undue provocation." 9 • Riot. (Section 65 of the Criminal Code.) The Criminal Code defines riot as an unlawful assembly that has begun to disturb the peace tu- multuously. When this happens, the authorities may "read the Riot Act." That is, they may go to the scene of the riot and demand that everyone assembled disperse. It is not only a criminal offence to take part in a riot but also to refuse to leave the scene of a riot when ordered to by someone in authority. Demonstrations, Protest and the Law 93 • Obstructing Police. This offence has been described above. Tar- nopolsky adds an observation that is useful in the context of freedom of assembly: ' 'Where the police reasonably believe that an assembly is obstructing a public thoroughfare or threatens to become an unlawful assembly, resistance to their orders to move away or disperse may result in a charge of obstructing police officers." 10 • Watching and Besetting. (Section 381 of the Criminal Code.) This section states that: Everyone who, wrongly and without lawful authority, for purpose of compelling another person to abstain from doing anything that he has a lawful right to do, or to do anything that he has a lawful right to abstain from doing, (a) uses violence or threats of violence to that person or to his wife or children, or injures his property, (b) intimidates or attempts to intimidate a person or a relative of that person by threats . . . (c) persistently follows that person about from place to place . . . (e) with one or more other persons follows that person, in a disorderly manner, on a highway, (f) besets or watches a dwelling house or place where that person resides, works, carries on business or happens to be, or (g) blocks or obstructs a highway, is guilty of an offence punishable on summary conviction. However, subsection 2 provides that being at a dwelling house or other place only for the purpose of obtaining or communicating information does not constitute watching or besetting. Thus the difference between lawful picketing and watching and besetting seems to be the element of intimidation, physical interference with a person or property, or threat. Protesters who obstructed a high- way in British Columbia to prevent nearby exploration of uranium which they believed endangered their health and that of their families were convicted of an offence under this section in 1979. However, the court took into account evidence that the regulatory safeguards to protect health during uranium exploration were "inadequate almost to the point of being nonexistent," that the accused were upstanding members of the community who were unlikely to commit further off- 94 How to Fight for What's Right ences, and that "a free society places a high value on dissent and other peaceful challenge of the rule of law." The judge granted each of the accused an absolute discharge." In addition to this offence, blocking a roadway has been considered unlawful assembly, and it would appear from Professor Tarnopolsky's comment above that it might also be considered obstruction of a police officer in certain circumstances. • Trespass. This is a civil wrong for which the owner or occupant can sue anyone intentionally entering his property without permission. The court can award an injunction against any further illegal entry and monetary damages for any harm done to the property as a result of the trespass. The owner or occupant can succeed in obtaining an injunction or perhaps a small award of damages to "punish" the offender or set an example even if no harm is done or if any harm done is unintentional. However, such suits are costly. The provincial governments have, therefore, created a faster, easier and cheaper remedy for trespass by passing statutes that allow the police or the owner occupant to lay charges against trespassers. These statutes place penal sanctions (usu- ally a fine) on the same behaviour that formerly could only result in damages or an injunction. Although the civil law of trespass is fairly uniform throughout Can- ada, the statutory remedies may vary from province to province. In Ontario, the Petty Trespass Act was relatively toothless until recently. Unless the land was enclosed by a fence and well posted with "No Trespassing" signs, it was not an offence to go on the land, but only to stay on the land for an unreasonable length of time after one was asked to leave. The fines ranged from a minimum of $10 to a maximum of $100. Since judges seldom give a maximum sentence and for a first offence they usually give a minimum sentence, and since trespassing was a provincial summary conviction offence that did not lead to a criminal record, the Petty Trespass Act provided little deterrence to demonstrators. In Ontario, a new Trespass to Property Act has recently been passed that replaces the Petty Trespass Act. The new Act makes it an offence to be on any land that is marked with red paint (the symbol that no entry is allowed without permission), and raises the maximum fine to $1000. The judge can also award damages of up to $1000 in the same proceedings, without the need for the landowner or occupant to launch Demonstrations, Protest and the Law 95 a separate civil action. These damages are payable to the landowner or occupant. • Common Nuisance. (Section 176 of the Criminal Code.) As a crim- inal offence, a common nuisance consists of doing an unlawful act or failing to discharge a legal duty that: (a) endangers the lives, safety, health, property or comfort of the public, or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada. A common nuisance must be directed to the public generally, rather than to a few individuals. For example, a demonstration that impedes public access to private property or obstructs a roadway might be considered a common nuisance, provided that the interference is the result of an illegal act. This illegal act could be a breach of another statute or municipal bylaw, or an act or omission that is a breach of the common law. • Civil Nuisance. Civil nuisance consists of both private nuisance and public nuisance. Private nuisance is the use of one's property in a manner that unreasonably interferes with another's use and enjoyment of his property. Public nuisance, which is more likely to happen at a demonstration, is an outgrowth of the criminal law. Public nuisance refers to wrongs against the public at large or against public property (such as highways). This doctrine provides the civil remedy of an injunction or damages to anyone who sues for harm that may result from a blockage of his access to public property or for harm to public property itself. However, in the case of harm to public property and public rights, usually only the Attorney General has "standing" to sue. The British Court of Appeal has suggested that demonstrators picketing an office may be committing a civil nuisance. 12 WHAT ABOUT OTHER RESTRICTIONS ON FREEDOM OF SPEECH AND THE RIGHT OF ASSEMBLY? Noted above are some of the main laws that restrict the right of as- sembly and the right of free speech; however, they are by no means the only ones. There are several provisions in the Criminal Code 96 How to Fight for What's Right restricting the carrying and use of weapons (any article made or adapted for use to cause injury to humans, or intended by the person having it with him for such use), civil conspiracy and inducements to breach of contract, which are discussed in another chapter, criminal conspir- acy, civil and criminal assault, the criminal offence of assault to resist arrest (Criminal Code, Section 426(2)(b)), and resisting arrest (Crim- inal Code, Section 228). WHAT ARE THE "DO'S AND DON'TS" ON PICKET LINES? Each demonstration takes on its own character, so it is impossible to draw up a set of hard and fast rules that will apply to every protest march, picket line or demonstration. However, there is some general advice the lawyer can give his clients that may have both practical and legal implications. Here is a checklist of do's and don'ts that should be helpful in avoiding legal entanglements. DO carry sufficient identification to satisfy a police officer as to your identity, so that he will have no excuse to hold you because of doubt as to your identity. A driver's licence or birth certificate should suffice. DON'T carry any more identification than necessary. It is no one else's business where you work or what clubs you belong to. That includes the police. DON'T carry anything that can be construed as a weapon. DO use the buddy system. If you are provoked, attacked, arrested or charged with an offence, you will want to have witnesses. DO carry with you the name, address and phone number of a lawyer. DO carry a pen and paper to take notes of the badge number of a police officer, licence plate numbers, descriptions of police officers or others involved in lawbreaking or violence, significant conversa- tions, etc. DO carry a reasonable, but not an excessive, amount of money with you in case of emergency. Demonstrations, Protest and the Law 97 DO appoint one or more persons as ' 'monitors'' to have responsibility for putting down licence numbers of police cars that stop or appear to be observing the demonstration, other cars that appear to be ob- serving the demonstration and any other unusual events. DO instruct each person to note the badge number of any police officer with whom they speak or who speaks to them, and write down the conversation. DON'T block traffic, block the entry to any building, shout, provoke or menace the police, the property owners or passersby in any way. DON'T give your name to any passerby, or indeed to anyone but the police. DO appoint someone as a media spokesperson and advise everyone in the group who that person is. Advise people to send the press to these spokespersons for comments if they are approached to make statements. DO wear appropriate clothes, that is, clothes that will not impair your movement or endanger you in the event of violence; clothes that convey the message you want to convey about you and your cause; clothes that are either very conspicuous or very inconspicuous, depending upon the circumstances and what you hope to accomplish. The Bust Book and Offence/Defence, mentioned in the Further Reading section, go into this in greater detail. DO be careful of what you say to strangers. They may be undercover police officers. DO have some members of the group carry cameras and tape recorders to make a record of any untoward events. There are special rules for making photographic and tape-recorded evidence admissible in court. These are explained in Offence/Defence. DO make extensive notes of any event you witness that may end up in court, including descriptions of the appearance and dress of the people involved and the names and addresses of other witnesses. 98 How to Fight for What's Right DON'T carry any illegal drugs during a demonstration. Other helpful advice can be found in The Bust Book and in Offence/ Defence. In addition, both these works contain much useful information about what to do if you are arrested, including the rights of the police, the rights of the person arrested, the kind of things that will happen at the police station, obtaining bail, and what may happen in jail. WHAT'S THE BEST WAY TO RESPOND TO THE POLICE? Here is one approach that the Canadian Environmental Law Association has suggested that its clients use (if accosted by the police) at the site of a demonstration. If a police officer asks you to get into a police car for any reason, you may reply: "I would prefer to talk with you on the sidewalk." If he insists, you may ask him whether you are under arrest. If he says yes, you may say, "I consider this to be a false arrest, but I will get into the car under protest." It would be unwise to refuse to get in the car if the police officer informs you that you are under arrest or gives you the reason for the arrest. This might leave you open to a charge of obstructing the police. Even if this charge cannot ultimately be supported, fighting it will be a lengthy, costly matter. If the officer says you are not under arrest, then you should insist on your right to talk with him on the sidewalk or not to talk with him at all. If he still insists that you get in the car, you should ask someone to' accompany you or to stand outside the car window and listen to all discussion. Do so as politely and firmly as possible without provoking the police officer's anger. If it is necessary, ask the officer what he will do if you refuse to get in the car. If he says he will arrest you for obstructing police or on some other charge, tell him that you will get in the car under protest after you are arrested. If he says he will use force, say: "I will get in the car under protest to avoid the use of force." In any event, before getting into a police car, you may say: "Unless you are arresting me, I am legally able to continue to walk on this sidewalk and I will not voluntarily enter the car." Remember that the back seat of a police car has no inside door handle. Once inside, you cannot get out unless someone opens the door from the outside. Demonstrations, Protest and the Law 99 If you are asked to go to a police station, again, ask, "Are you arresting me?" and if the answer is, "Yes," say, "What for?" After this, record in your notebook everything that happens or is said. Insist on being told the nature of the charge. If you are not told the nature of the charge, it is illegal for the police officer to arrest you, and it is legal for you to use reasonable force to resist arrest. However, although legal, it is unwise to physically resist arrest, even an illegal arrest, unless you have very strong reason to believe that you are in danger of being subjected to police brutality if you do. If you and other demonstrators are taken to the police station, try to insist on going in twos and threes, rather than individually. If the answer to the question, "Are you arresting me?" is, "No," refuse to go to the station until or unless you are arrested. If you are taken to a police station without getting an answer to the question of what offence you are charged with or what conduct is the ground for the arrest, refuse to answer any questions beyond giving your name and address until you are charged with a specific offence. If you are imprisoned in a police car or a police station on the grounds that you have been arrested for an offence and then released, when you are released ask whether you are still charged with any offence. A police officer who arrests or imprisons you without rea- sonable and probable grounds for doing so is subject to a civil suit for false imprisonment or false arrest. The fact that he has arrested you, charged you with an offence, then released you and dropped all charges, without obtaining any further information that would change the situation, may in itself be very strong evidence that he had no reasonable grounds for arrest in the first place. It cannot be stressed too strongly that in any dealings with the police, if you can possibly arrange to do so, you should have a witness or a lawyer present. WHAT IS THE ROLE OF THE LAWYER AT DEMONSTRATIONS? Lawyers have the same civil liberties as anyone else: no more, or less. A lawyer may attend a demonstration as a participant, as an advisor, or both. However, in a rapidly changing situation — when a peaceful demonstration turns into a violent one — it may be psychologically and physically difficult for a lawyer to switch roles, or to play both roles at the same time. 100 How to Fight for What's Right The same laws apply to lawyers as to non-lawyers, but the conse- quences of breaking the law are more severe for the lawyer. The non- lawyer is subject to civil and criminal sanctions if he breaks the law. The lawyer is also subject to disciplinary action by the Law Society and possibly even loss of his licence to practise law. In certain circumstances, such as a riot, the mere physical presence of a person at the site of the demonstration may be strong evidence of a breach of the law. In such a highly charged situation, unless he has made a conscious decision to break the law, the lawyer may want to clarify the nature of his participation to minimize his jeopardy. If the lawyer does want to draw a clear line between his role as a par- ticipant and his role as legal advisor, he should ensure that he is not a member of the group he is advising, or a public speaker at a protest in which he is also acting as legal advisor. It may be advisable for him to stay at the edge of the group, or stand apart from it. The lawyer will want to be in as good a position as possible to show that he is at a demonstration for the purpose of assisting his client to avoid breaking the law, rather than to aid or abet any breach of the law. The lawyer may not counsel anyone to break the law. However, if the law is unclear or ambiguous, he may certainly advise his clients as to his interpretation of the meaning of the law and its application to them under the circumstances. Like any other participant at a dem- onstration, lawyers may want to work in pairs to ensure there are witnesses to their activity. Without such collaboration, it may be his word against a police officer's as to whether he was advising a client or obstructing justice. 9. CONSPIRACY Public interest advocacy is now recognized as a respectable and val- uable aspect of the democratic process. It is important for everyone in society to have the right to protect his or her interests, both in the courts and on the streets. When both sides lobby hard for what they want, or use the laws to advance their own interests, that is fair play. But when vested and powerful interests resort to harassment and in- timidation, that is unfair and improper. Civil conspiracy is a combination or confederacy between two or more persons, formed to cause legal damage or injury (for example, loss of business) to a third party. It is a legitimate legal doctrine that can be distorted and used as a harassment technique. In recent years, members of Canadian public interest groups have been sued, under the law of conspiracy, for picketing in front of a retail store and for submitting briefs to their municipal council. In one case, a lawyer and other staff of a community legal clinic were sued by a landlord for conspiracy to harm his reputation and his business, and for libel, as a result of their assistance to a tenant. In recent years it has become apparent that exercising one's right to protest can result in being sued for conspiracy. It is questionable whether such a lawsuit can succeed, but in many cases the lawsuit serves its purpose without ever going to court: it intimidates and "punishes" the outspoken. WHAT IS THE LAW OF CONSPIRACY? Conspiracy is another one of those legal doctrines, like obstructing police and obscenity, that are so vague they are open to abuse. Because such doctrines are so ill-defined and malleable, they may be useful to keep the peace and to redress new kinds of social injustices in a tolerant and well-meaning society. But, in the hands of powerful vested in- 101 102 How to Fight for What's Right terests such fuzzy doctrines can be used to bludgeon public interest groups and their legal advisors into silence. Is organizing a tenants' union, boycott or protest march a conspiracy? No one knows the answer. Until the courts rule on specific cases, it would appear that the best answer is that it depends upon the circum- stances of each case. Public interest groups should be reasonably safe in such activities, provided that they do not do anything illegal in the course of otherwise legal activities, and provided that they do not urge anyone to break a contract that they know is in existence. HOW CAN CONSPIRACY BE USED AGAINST CITIZEN ADVOCACY GROUPS? What follows is a case study that illustrates how a developer, using conspiracy charges, effectively hamstrung the efforts of a community conservation group in its fight to preserve the quality of their neigh- bourhood environment. The Mississauga group found out just how costly freedom of speech can be. The Save Our Trees and Streams Society was formed in 1973 to bring together citizens in Mississauga, Ontario, who were concerned about the impact of urbanization on the natural landscape. The citizens wanted to retain as much as possible of the existing quality and features of the environment, and still allow rational development that was in the interest of their community. SOT AS could hardly be called a rabble-rousing group. The members of its executive committee in- cluded a professional forester and an architect. Its modus operandi consisted of preparing planning reports and presenting well-researched briefs to the municipal council. If ever a group could be said to work within the system rather than against it, it was SOT AS . In July of 1973 SOTAS delivered a brief to the Council of the City of Mississauga, urging the municipality to protect the slopes of the Credit River Valley by zoning them as "hazard lands." (Hazard lands are areas that should not be developed because of unstable or steep slopes, occasional flooding or other environmental constraints.) SO- TAS advised the Council to freeze development on lands adjacent to the Credit River and maintain the area as a greenbelt. In the early fall of 1973, the members of SOTAS learned of a proposal to build a housing subdivision on lands on the rim of the Credit River Valley. SOTAS wanted to ensure that the development would not endanger the natural beauty of the ravine and that the public would continue to have access to the Credit River along a natural path Conspiracy 103 on the cliff above the floodplain. Upon discovering that the municipal council had not yet approved the developer's draft plan of subdivision, SOTAS asked the council to reconsider the development and to ensure that public access to the River Valley was preserved. When an election in late 1973 led to a change in the municipal council, SOTAS decided to make a submission to the new council about the proposed development. Again SOTAS asked the municipal council to preserve public access to the river and to protect the existing trail and the natural scenery of the valley. According to members of the group, they never had any intention of harming the developer. Their only motivation was to try to persuade the municipality to act in what they believed to be the community's interest and protect the Credit River Valley. Although the members of SOTAS claim they had no knowledge of this, the Ontario government in December of 1972 had approved the developer's draft subdivision plan, subject to twelve conditions. One of these conditions required the developer to assure the Minister that the municipal council was satisfied that the other eleven conditions had been carried out to the municipality's satisfaction. Following the SOTAS brief recommending that the council not approve the devel- oper's draft plan, the council passed a resolution "that the River Heights development be released for final registration on the under- standing that the conditions set out in the attached letter being [sic] carried out." One of the new conditions in the letter was that the developer give 44 percent of its land to the local Conservation Au- thority. The developer claimed that once the provincial government had given approval subject to the original twelve conditions, the munici- pality had no power to impose more conditions. Alleging that this new condition was illegal, the developer sued the five members of the executive of SOTAS for $500,000 in damages and the municipal council for the same amount. The developer alleged that SOTAS and the municipal council conspired to breach a contract between the developer and the municipality, and conspired to impose an illegal condition that the developer had to satisfy before the draft plan of subdivision would be released for approval. Four and a half years of legal manoeuvring began. Lawyers for SOTAS and the City of Mississauga moved to dismiss the developer's action on the grounds that there was no legal basis for it. In the first hearing, the judge agreed that there was no evidence of any agreement 104 How to Fight for What's Right or contract between Mississauga and the developer that could have been breached. He ordered the developer to strike out of its statement of claim any references to breach of contract. However, he allowed the other aspect of the case to continue: "If the [municipality] refused to advise the Minister that the plaintiff had satisfied the conditions unless the plaintiff conveyed 44 percent of the land to the Conservation Authority there is no doubt such conduct was illegal, and if the plaintiff suffered damages as alleged as a result of that illegal conduct, the [municipality] should be responsible for it." He allowed the lawsuit to continue and ordered the municipality and SOTAS to pay the costs of their application to dismiss the action. SOTAS and the municipality then asked the court's permission to appeal the judge's order to a higher court. The judge in the appeal agreed with the defendants that the issues involved were important enough to send it to a higher court: I strongly doubt if what it is alleged and admitted the defendants here did is in any sense illegal as a conspiracy. The whole process of approval of subdivision is to make sure that the public interest is protected, and the consideration of all alternatives and conditions in the public interest is the proper concern of municipalities and concerned and interested citizens. . . . Concerned citizens have no more rights than others, but they do not have less rights because they act in concert. I think that it is of basic importance to determine at this stage of the action whether municipal corporations and groups of citizens who oppose or try to regulate the granting of privileges under provincial legislation should thereby become subject to actions for conspiracy for making suggestions of which it may be argued that they are contrary to one view of some law involved. The three judges who then heard the appeal did not dismiss the case against SOTAS and Mississauga. But the citizens had some success on their appeal. The judges did rule that the developer's statement of claim (the document in which the plaintiff sets out what he alleges to be illegal about the defendant's conduct) was unclear and must be revised. They reversed the order of costs against Mississauga and the citizens' group, and awarded them the costs of the applications before the two earlier judges and on the appeal. Although the developer claimed that it had suffered one million dollars in damages as a result of the actions of the citizens and their municipal council, it appeared to be in no hurry to have a court decide its claim. Before a trial is held, a process known as examinations for Conspiracy 105 discovery takes place, in which each side cross-examines the other party's witnesses. The process is useful for evaluating the strength of your case, to clarify and resolve as many issues as possible prior to trial and to decide whether to proceed or settle. It often leads to negotiations for settlement. By January of 1977, the developer's lawyer had only completed his examination of one of the five SOTAS mem- bers. In September of that year, the SOTAS members' lawyer, John McDougall, asked the court to order the plaintiff to get on with its case. In an affidavit in support of his motion, Mr. McDougall said he believed that the lawsuit had caused his clients embarrassment and personal anguish, and had exposed them to liability for heavy legal costs. He suggested that it was unreasonable to have this state of affairs unduly prolonged. The court apparently agreed. It ordered the developer to complete its discoveries by the end of November, 1977. November came and went and the plaintiff's lawyers initiated no further discoveries. In- stead, they asked the court for more time to examine the SOTAS members. The case finally came to court four and a half years after the writ had been issued. On the day the trial was to begin, the developer announced that it was abandoning its case against the SOTAS members, but would continue against the municipal council. The judge granted costs for the day in court and costs of preparing the case to SOTAS on a party-and-party basis. This means that the developer had to pay about two-thirds of the SOTAS members' legal fees, leaving the in- dividual SOTAS members to bear the remaining one-third of their lawyer's fees and disbursements, if he chose to collect them. Costs of preparing the case were estimated at somewhere between $10,000 and $40,000. Although the SOTAS members were relieved, they were not yet out of the woods. Because the conspiracy suit was continuing against the city, the SOTAS members could be called upon as witnesses by either party at any time. The judge decided not to rule on whether the SOTAS members should be awarded the remaining one-third of their legal costs until the end of the trial against Mississauga. At the time of writing, more than two years later, that suit has never come to court. The lawsuit effectively finished SOTAS as a conservation group. Time and energy that would otherwise have been spent in researching and developing briefs on long-range planning policies was devoted to raising money for a defence fund to pay legal bills. The case not only . 106 How to Fight for What's Right sapped SOTAS' energy, but it frightened many other citizens' groups from speaking out on issues. Because the case against SOTAS never came to trial, the court had no opportunity to rule on the scope of freedom of speech between a municipal council and its ratepayers, and the threat of conspiracy action against public interest groups is no closer to being removed. Therefore, perhaps the only useful lesson to come out of the SOTAS case is that ratepayers and other public interest groups may be wise to incorporate. Incorporation greatly increases red tape, costs of op- eration and paperwork and is completely unnecessary for most activities community groups carry on. But incorporation limits the liability of individual officers of an association. Plaintiffs must sue the corporation rather than its individual members and the damages they can collect are limited to the assets of the corporation. They cannot touch the assets of the individual members. ARE PUBLIC INTEREST GROUPS LIABLE TO CRIMINAL CONSPIRACY CHARGES? Civil conspiracy grew out of the historic offence of criminal conspiracy. Criminal conspiracy in Canada has been codified as section 423 of the Canadian Criminal Code: "Everyone who conspires with anyone (a) to effect an unlawful purpose, or (b) to effect a lawful purpose by an unlawful means, is guilty of an indictable offence and is liable to imprisonment for two years." The "unlawful" or "unlawful means" are not restricted to criminal acts, but may include breaches of certain provincial legislation or municipal bylaws. For example, an agreement to demolish buildings without obtaining a permit required under a municipal bylaw or forming a company to sell securities without a prospectus and employing un- registered salesmen contrary to provincial laws may be subject to prosecution for criminal conspiracy. There is little danger that most legitimate public interest activities could be construed as criminal conspiracy without the participants being aware that they are breaking the law. Nevertheless, until the law is clarified, this is always a possibility that should be kept in mind. A lawsuit for civil conspiracy, on the other hand, is somewhat more likely. WHAT IS CIVIL CONSPIRACY? The most common form of civil conspiracy is a conspiracy to induce a breach of contract. If an individual or a group induced some other Conspiracy 107 individual or group to break a contract with a third party, and if as a result the contract is broken and the third party suffers some damage, the third party can sue for damages both the person with whom he had the contract and the person or persons who induced him to break the contract. The suit against the person who broke the contract may be for both breach of contract and for his or their participation in the conspiracy. The suit against the person who induced the other to break his contract will be for conspiracy. He will succeed against the person or group who induced the breach of contract unless they can show that they had sufficient justification to encourage the other person to break the contract. On the other hand, you cannot be liable for inducing or procuring a breach of contract unless you know that there is a contract to be broken. A group that encourages someone not to do business with a certain firm, without knowing that he already has a contract with the firm, is not liable for any damages that the firm may suffer as a result of the group's activities. However, once the group becomes aware of a contract, the group may be liable for damages unless it can show sufficient justification for continuing its activities. Thus, where a con- tract is in existence, whether an individual or group is engaging in a conspiracy is to some extent merely a question of the state of their knowledge. It would be up to the plaintiff to prove that the defendant knew about the contract at the time the representations were made. An inducement to break a contract may consist of directly requesting or persuading one of the parties to a contract to break it, or it may involve physically detaining someone or otherwise making it impos- sible for him to perform his contract. It may also consist of dealing with a party to a contract in a manner that one knows to be inconsistent with the contract. For example, if you know that someone has a con- tract with another person to sell his entire stock of goods at a certain price, you might be sued if you offered him a much higher price for the same goods. Thus, you may be engaging in a conspiracy to breach a contract if you know of the existence of the contract and: (1) you persuade someone to do something inconsistent with per- forming his duties under the contract; or (2) you arrange for another person to do something that would render it impossible for him to fulfill the contract; and (3) your words or actions are intended to procure the breach of con- tract rather than to further some legitimate interest. 108 How to Fight for What's Right In order to be sued, your actions must result in some actual loss or damage to the third party. It is not unlawful to induce a breach of contract if you have sufficient justification for doing so. But as Salmond, an authority on the law of torts, states: "What amounts to a justification is a question of law to which, as the authorities stand, no precise answer can be given." Whether inducing a breach of contract is justified depends on the nature of the contract broken, the position of the parties to the contract, the grounds for the breach, the means used to procure the breach, the relation of the person procuring the breach to the person who breaks the contract and the person's reasons for procuring the breach. The main justification for inducing someone to break a contract is the advancement of one's own economic self-interest. The court will attempt to ascertain whether the primary purpose of an inducement is to hurt the third party's business or advance one's own business. Since there is often more than one way to look at such activity, and since motives may be mixed, it is often difficult to predict the outcome of any case. Motives that are partially selfish and partially unselfish sometimes also provide a justification for inducing a breach of contract. Salmond suggests that urging a breach of contract may be justified "under the pressure of moral duties." An example would be a father persuading his daughter to break off her engagement to marry a scoundrel, 1 "where the claims of relationship or guardianship demand an interference amounting to protection. " 2 In another case, the court held that members of a theatrical "joint protection committee" were justified in inducing a theatre manager to break off his contract with a theatrical agent because the agent paid his chorus girls such low wages that they had to resort to prostitution. 3 In these cases, however, there was an element of self-interest. The joint protection committee, for example, appears to have been a kind of informal' 'union,'' formed to protect the interests of entertainers. In the pure public interest case, where neither the persons inducing the breach nor their members stand to gain anything from the induce- ment, it is not clear that altruism and concern for justice would justify an inducement to breach a contract. Several years ago Canadian union officials supported the widespread public boycott of California grapes, in support of an attempt to obtain better working conditions, legal recognition and higher wages for a grapeworkers' union in that state. They were held to have engaged in a conspiracy when the union Conspiracy 109 members' boycott of the supermarket in which they were employ- ed caused the supermarket to be unable to carry out its contract to buy these grapes. 4 The court held that the union had engaged in a conspiracy. The mere fact that one is acting in the public interest certainly does not in itself justify inducing a breach of contract. In a case where a society (union) of stonemasons pressured an employer to break his contract to provide training as a mason to an apprentice, the court said it was not a justification that they acted bonafide in the best interests of the society of masons (i.e., in their own interests), adding that they would be liable even if they were acting "as an altruist, seeking only the good of another and careless of [their] own advantage. " 5 Similarly, when leaders of a tenants' association advised members to withhold their rent until the landlord fulfilled his obligations to adequately heat and clean the building, the court held that even if they claimed to be performing a public service this did not justify interference with a contract. 6 It has also been held that the fact that an association has a duty to protect the interests of its members and has acted in pursuance of that duty is no justification. 7 A few other principles are worthy of note. The "contracts" that are protected are not just business or written contracts. As mentioned above, a contract to marry has been protected (although recent law reforms in many jurisdictions abolishing torts such as breach of contract to marry would presumably also eliminate any suit for inducing a breach of this kind of contract). In addition, there appears to be nothing wrong with dissuading someone from entering a contract before he has committed himself and while he is still free to change his mind. WHAT IS CONSPIRACY TO INJURE? Although inducing a breach of contract may be actionable whether it is done by one person or by a thousand, there are other inducements that appear to be lawful if they are done by one person, but unlawful if done by more than one. These are called "conspiracies to injure." Salmond describes civil conspiracy to injure as "a combination wilfully to do an act causing damage to a man in his trade or other interests." If this agreement or combination results in actual economic loss, it is actionable as a conspiracy. However, where the element of combi- nation is absent, the motive of the defendant is immaterial, and damage done intentionally or even malevolently to another gives no cause of action as long as no legal right of the other is infringed. To succeed, 110 How to Fight for What's Right the plaintiff must prove: an agreement to do some act that would injure his economic interest, actual injury and intent to cause that injury. The plaintiff cannot succeed if the defendant can show that the primary purpose was not to injure the plaintiff but to promote some legitimate purpose. Just what constitutes a "legitimate interest" that gives jus- tification to combine to injure someone's economic interest is unclear. It obviously includes the advancement of one's own economic interests, but like inducement to breach a contract, it is not clear whether it includes altruistic or "public interest" considerations. Because most of the cases involve disputes between labour unions and employers, or between trade competitors, the "public interest" question has sel- dom arisen. The courts have usually been asked to consider motives that involve some self-interest. For example, in one case in England in 1941, union officials in- structed dock workers who were members of the union not to handle yarn spun by the Crofter Handwoven Harris Tweed Company or cloth woven from it. 8 The workers complied with this instruction, jeopard- izing Crofter's business, and the company sued. The union hoped to eliminate competition from Crofter with other manufacturers who em- ployed members of the same union as spinners. This would strengthen the economic position of these other manufacturers. The union believed that if there was less cut-throat competition between milling companies, the remaining companies would be in a better position to increase the prices they paid to the spinners of yarn in the unionized mills. The House of Lords held that there was no conspiracy because the com- bination was intended to achieve the union's lawful purpose of pro- tecting the interests of its members and to improve industrial conditions for its members by eliminating unregulated competition. The proposition that the pursuit of economic self-interest is a legit- imate justification for causing someone economic injury appears to be so well settled that by 1965 the author of the fourteenth edition of Salmond on Torts felt safe in asserting that: The pursuit of selfish ends provides in law, whatever may be the case in morals, its own justification. Even the fact that the damage inflicted to secure such a legitimate selfish purpose is disproportionately severe, though it may throw doubts in the bona fides of the avowed purpose, does not necessarily involve liability. However, it is not clear whether self-interest includes one's nobler instincts. Is advancement of the public interest a legitimate extension of one's narrow self-interest or a legitimate alternative to that self- Conspiracy 111 interest? Or is a person attempting to protect his financial or property interests considered justified in interfering with those of another, while the altruistic person is considered a meddler? The English Court of Appeal has said that the interests which a defendant is justified in protecting are not confined to "those which can be exchanged for cash." The court found that union officials did not engage in a con- spiracy by organizing a boycott of a dance hall that barred coloured people. 9 In the Canadian grape boycott case, however, similar activities were held to be a conspiracy. Perhaps if the Canadian case had not involved a breach of contract, the result would have been different. The independent existence of a tort of conspiracy to injure in the absence of a contract being breached was doubtful until as recently as 1942. Before the Crofter case, it had been thought by some to exist only if the activity was inspired by malice, and its application appeared to be limited to trade competition and labour disputes. Is it possible that such a questionable tort can be extended to otherwise legitimate public interest advocacy? It would be perverse for the courts to protect harmful activities done to advance one's narrow self-interest, yet subject those whose motives are entirely altruistic, and who have nothing personal to gain from their activities, to the threat of being liable for all financial losses caused by their activities. The result of such a doctrine would be to suppress freedom of speech and elevate private interests over the public interest. Any form of advocacy of the public interest against private interests, or of the interests of the poor and weak against the rich and powerful, would be surrounded with uncertainty. Nevertheless, conspiracy to injure suits other than the SOTAS suit have recently been initiated. In 1975, the owner of a Toronto fur store sued for conspiracy a woman who participated in a demonstration in front of his store. The demonstrators alleged that the store owner was offering the skins of endangered species of animals for sale. After issuing his writ, the store owner never proceeded any further with his lawsuit, even though a second demonstration took place after he had launched his action. A year later, members of the staff of a Toronto community legal clinic were sued by a Toronto landlord for conspiracy to injure his business and his reputation by opposing the landlord's attempts to remove a handicapped roomer from his rented premises. This case has never gone to trial either. CONCLUSION Until the Canadian courts decide the legitimate scope of public interest advocacy, individuals and groups cannot be certain of being free from 112 How to Fight for What's Right harassment. Meanwhile, the following steps may provide some pro- tection against conspiracy suits and other legal actions: • Incorporate. This limits the financial liability of members of a group for actions of the corporation. • Try to avoid any activity that could otherwise be construed as illegal. Conspiracy may consist either of illegal means, illegal ends, or both. • Accentuate the positive and eliminate the negative. At all times, make it clear that you are for some legitimate goal rather than against any particular person or corporation. Frame all submissions and state- ments in terms of your goals and make it clear that you are "against" someone only to the extent that his activities impede the accomplish- ment of your legitimate social goals. • If at any time you become aware of the existence of a contract or agreement that may be breached as a result of your activities, proceed with caution. Seek legal advice before taking further action. 10. DEFAMATION, LIBEL AND SLANDER Defamation is the offence of injuring a person's character or reputation by false or malicious statements. This includes libel and slander. Mem- bers of public interest groups and the lawyers who represent them find that they have more and more reason to believe they may be sued for libel by those who wish to silence them. Libel and slander are also important defences for public interest advocates when opponents try to destroy their credibility by making false or malicious statements about them. DEFAMATION AND THE DISTINCTION BETWEEN LIBEL AND SLANDER A person defames someone's character if he makes a false statement damaging to that person's reputation. A statement is defamatory if it subjects the person to hatred, ridicule or contempt of the community because it alleges or implies some moral discredit on his or her part. A statement may also be defamatory if it tends to make ordinary members of the community shun or avoid the person about whom the statement is made, even though the statement is about something that would not constitute any moral discredit on his or her part, if it were true. For example, people who are alleged to be insane or to have certain diseases may be entitled to bring an action to protect their reputation and their honour, even though they would have no direct moral responsibility for these disabilities, had they suffered them. 1 Professor Heuston, editor of the sixteenth edition of Salmond on Torts, states that: The typical form of defamation is an attack upon the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as crime, dishonesty, untruthfulness, ingratitude or cruelty. But a state- 113 114 How to Fight for What's Right ment may be defamatory if it tends to bring the plaintiff into ridicule or contempt even though there is no suggestion of any form of mis- conduct. 2 On the other hand, words that merely hurt someone's feelings or cause him annoyance, without reflecting on his character or reputation or tending to cause him to be shunned or avoided, are not defamatory. The test of whether a statement is defamatory is whether it would make reasonable people think less of that person. This is a "man on the street" test. As Lord Atkins, a member of the Judicial Committee of the British House of Lords, put it: "Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?" 3 Whether a statement is defamatory would depend to some extent upon the social climate and the predominant values in the com- munity at the time it is made. For example, in the minds of many people there is nothing wrong with being an "activist" or a "com- munist." In some circles such attributes may be a source of pride and a reason for acceptance. However, if many "right-thinking" people are hostile towards "communists" or "activists," attaching these la- bels to someone might be considered defamatory. 4 To take another example of how changing social values might affect whether a statement is defamatory, in the 1940s it was suggested that to portray a woman as having been raped or seduced by an evil man would destroy her reputation. This was based on attitudes towards women and sex that may not reflect society's current views. Defa- mation is more commonly known by the term "libel" or "slander." The simplest distinction between these two kinds of defamation is given by Williams, the author of a recent textbook on the law of defamation: "Any comment communicated in a form which is per- manent and visible to the eye is libel. Any communication which is temporary and only audible is slander. " 5 In other words, libel is usually written and slander is usually spoken. There are many difficulties with the rather arbitrary division between libel and slander and with the attempt to distinguish between them. To begin with, to distinguish between libel as permanent and written, and slander as temporary and spoken, is an over-simplification that does not take into account modern forms of communication such as television, radio broadcasts and computer printouts. The division also causes problems because the liability flowing from libel is sometimes different from that of slander. To simplify the law some provinces have passed legislation reuniting libel and slander as a single tort of Defamation, Libel and Slander 115 defamation. In other provinces, the distinction is still made. This will be discussed further. ARE LIBEL AND SLANDER THREATS TO PUBLIC INTEREST GROUPS? There are three reasons for our concern about libel and slander in a guide on public interest advocacy. First, we are concerned because public interest advocates are particularly vulnerable to scurrilous at- tacks on their character made by the powerful interests they criticize or challenge. Lying about them is one way to undermine their credi- bility and reduce their effectiveness. Advocates should therefore be aware that they can use this remedy. Secondly, it is not difficult for public interest advocates inadvertently to cross over the fine line be- tween fair comment and defamation in their newsletters, speeches, media interviews and other public statements. Thirdly, the people and institutions whose activities public interest groups are challenging are beginning to learn that bringing libel suits against their critics may be cheap insurance against further criticism. They know that no matter how unfounded, a libel suit tends to intimidate public interest advocates and deflect their efforts from constructive criticism to self-defence. Defamation serves a useful purpose in protecting people's reputa- tions from unfair and untrue attacks. However, this goal must be balanced against the need to protect freedom of speech. The courts have recognized for years that libel and slander may be abused by "gold-diggers" who launch suits to make a fast buck. They are now gradually recognizing that libel is also being abused increasingly by plaintiffs about whom nothing has been said that isn't true or whose reputations haven't suffered any harm they didn't deserve, who have no desire to protect their reputations, and whose real purpose is to "gag" their critics. HOW EFFECTIVE ARE DEFAMATION SUITS LAUNCHED BY PUBLIC INTEREST GROUPS? Defamation suits have been launched by public interest advocates and against them. Simon Hoad, who ran a youth hostel program in Thunder Bay, sued when the mayor of the city claimed the program cost too much because it was mismanaged. Simon and the mayor settled out of court, the mayor apologizing publicly to Simon and paying him an undisclosed sum of money. On the other hand, a landlord sued the staff of a Toronto community legal clinic for defamation after they allegedly informed the press about his attempts to remove a tenant 116 How to Fight for What's Right from his apartment (the case is still technically before the courts al- though the landlord has taken no steps in more than three years), and the makers of Marlboro cigarettes sued the producers of a television program that showed its commercials juxtaposed with real cowboys dying of cancer and suffering from emphysema from smoking ciga- rettes. As a result of the suit the film has never been shown in the United States. Unfortunately, defamation is a more useful tool for wealthy indi- viduals or corporations who want to silence their critics than for public interest advocates who want to protect their reputations. There are several reasons for this. First, in general the reputations of activists are likely to be "worth" less than the reputations of powerful indi- viduals or corporations they criticize. (An exception: if the activist is a member of a profession, his professional reputation is deemed to be valuable in itself, and he can recover for slurs against this ' 'professional reputation" without showing any financial loss.) When an activist sues someone for defamation, he puts his own reputation on trial as well as that of the defendant. A nonconformist in any community is likely to obtain a bad reputation with some ' 'right- thinking" members of the community, who may be all too happy to testify in favour of the defendant. It is frequently counter-productive for an activist to launch a libel action. All litigation is expensive, nerve-wracking and time-consum- ing. This is particularly true of libel suits because of the issues and the technicalities involved. Therefore most activists, after they get over their initial upset, will usually decide it is more important to get on with the job than to become enmeshed in a libel suit. Finally, legal aid legislation frequently will not permit financial assistance to be given to people who sue for defamation or are sued for it. This makes it particularly unattractive to the public interest advocate who is not wealthy to sue someone who defames him. It also makes a defamation action particularly attractive to a wealthy person who wants to use a libel suit as a "gag," since the activist will be particularly ill-equipped to fight back without any financial assistance. HOW TO RECOGNIZE DEFAMATION Generalizations are not very helpful in determining what may be de- famatory. If you have any doubts, talk to a lawyer. If you are a lawyer who has little experience with this highly technical and subjective area of law, read some of the cases listed in the Further Reading section Defamation, Libel and Slander 117 as a starting point and consider consulting with someone more expe- rienced. It is impossible to give more than a bare outline of the law of defamation in this kind of book. However, the following thumbnail sketch should help to point you in the right direction. Each province has its own libel and slander statute and therefore the law is slightly different in each province. In some provinces, the difference between libel and slander is extremely important for reasons that will be described below. In other provinces, the distinction between libel and slander has been abolished, and both are referred to merely as "defamation" and are subject to the same rules. There are usually very technical rules that one must follow to protect one's right to sue for defamation. The requirements for notifying the defendant and the period within which notification must be made and a defamation action can be brought vary from province to province. Although we have described defamation as a "statement," it may be any form of communication. As well as written and oral statements, such forms of communication as a cartoon, a statute or a song can be defamatory. Words may be defamatory in their natural and ordinary meaning. However, if the words or other forms of communication are unclear or may have more than one meaning, the court will have to determine what was meant and what the ordinary member of society would have thought was meant. Words that are otherwise innocent may be defam- atory if they were uttered in a context that would make them harmful to a person's reputation. In such cases, the libel or slander involves "innuendo." An innuendo exists when the spoken or written words themselves are not defamatory, but surrounding circumstances or ad- ditional facts that are likely to be within the knowledge of people who received the communication give the words an extended meaning that is defamatory. For example, the mere inclusion of an article in a series may be libellous. Williams gives the example of a weekly publication that prints a series of articles exposing chicanery and dishonesty, and includes in the series an article about an individual. The publication does not directly say anything negative about the person's character, but the inclusion of the article about him in such a series might lead readers to draw the inference that he indulges in the kind of conduct the series exposes. 6 If the defamation is by innuendo, it is not necessary for the plaintiff to prove that someone actually understood the words in the defamatory sense. It is only necessary for the plaintiff to prove the existence of 118 How to Fight for What's Right the special circumstances that give the innocent statement a defamatory implication and that there are people who might understand the words in the defamatory context. The onus is on the person who alleges he has been defamed to show all of the following matters: that there are extrinsic circumstances that might render an innocent-sounding state- ment defamatory; that there are people who know these facts or cir- cumstances; and that these people might reasonably understand the words in a defamatory sense. It is not necessary to prove that the statement actually came to the attention of such people. For example, if a businessman issued a notice saying he would no longer accept cheques drawn on a particular bank, the mere statement might not be considered to say anything negative about the character or conduct of the bank. But the statement might be considered defam- atory in the context that most such notices are issued as a result of bankruptcy or insolvency. Therefore, recipients of such a notice might reasonably think that the bank was in dire financial straits. 7 To be defamatory, a statement must be "published." Publication does not consist only of trumpetting one's message to the world through the print or electronic media. Making an untrue statement about some- one to only one other person may be defamatory in some circumstances. Sending a letter that defames a person to his spouse has been held to be grounds for a defamation action. 8 Publication also consists of repeating a defamatory statement. There- fore, if someone is defamed in an interview or a letter to the editor, the editor and the publisher of the newspaper that prints the statement will be liable, as well as the person who made the statement. In the case of an interview, the reporter or broadcaster would also be liable. A communication that is neither intentional nor careless is not a publication. If a statement is made with the intention that others may hear or read it, this will amount to publication. If the statement is communicated unintentionally, this may still amount to publication if the person who said it was careless or negligent about who might hear it. If someone makes a slanderous statement to another person, having no reason to know or suspect the presence of a third person who overhears it, the speaker will not be considered to have "published" the statement to a third party. On the other hand, if the speaker should have known that the third person might be listening in, the statement might constitute publication. Obviously, one must watch what one says in the vicinity of a mi- crophone. More than one person has made a "private" statement in Defamation, Libel and Slander 119 the presence of an open mike. Whether such a person would be con- sidered to have "published" a statement that goes out on nationwide television accidentally might depend upon whether a reasonable person would have realized that the microphone was inadvertently left on. If someone denies any intention to "publish" a statement, the burden of proving publication is on the plaintiff. HOW FINE IS THE DISTINCTION BETWEEN LIBEL AND SLANDER? The distinction between libel and slander has been briefly described above. There is a great grey area in which it is difficult to determine whether or not a matter is libellous or slanderous. As a rough rule of thumb, to be on the safe side, consider any statement that will appear in writing, on radio, on television or in a motion picture to be within the "libel" category. Restrict the "slander" category to speeches. Libel is considered a more serious offence than slander. The major difference is that a slander is generally not actionable without proof of "special" damage (out-of-pocket loss), but libel is. In the provinces and territories where the distinction between libel and slander has been eliminated, the trend has been to treat all defamation as libellous: that is, not to require any proof of actual monetary loss. In certain cases, both libel and slander are actionable without proof of special damage. Slander is treated as being as serious as libel when it involves an imputation of a serious crime, an imputation of unchastity to a woman (the inequality of treatment of the sexes in this case has interesting implications under modern human rights codes) or an im- putation that someone has a contagious or infectious disease. From the viewpoint of public interest advocates, the most important situation in which libel and slander are actionable without proof of special damages is the discrediting of someone's performance or capacity to perform the duties of his business, trade, profession or calling. A person's "professional reputation" is considered deserving of special protection. If a doctor is called a "quack" or a car manufacturer is accused of producing "death-traps," without justification, that person could sue for damages even without showing any loss of business. WHAT HAPPENS WHEN GROUPS ARE DEFAMED? As a general rule, if a group or association is defamed, there is a limited right to sue. Whether the members of the group can sue in the group's name or whether they must sue as individuals will depend 120 How to Fight for What's Right upon a variety of factors. To begin with, only legal entities recognized as "persons" can sue. An individual is a person. A corporation is a person. However, in many jurisdictions an unincorporated association is not a person. Of particular concern to small, unincorporated and sometimes tem- porary public interest groups or community groups is the question of whether to sue if something untrue is said about the group, without mentioning its individual members by name. Williams states: A defamatory comment may be made about a corporation, association or other cohesive group. To be defamatory of such an entity, the state- ment must reflect adversely upon an aspect of the esteem in which the entity is held. It must reflect upon the management of the corporation's business and must affect the corporation rather than the individuals associated with it. 9 Williams points out that such entities have a limited reputation. For an action to be maintained by the entity itself rather than by the in- dividual involved with it, the entity must show "that the defamation injures it in its own sphere of activities and does not merely reflect upon its agents, officers or servants." 10 Generally, corporations may sue only if their property or financial position has been affected. Trade unions, professional associations and municipalities have launched defamation actions in their own names. Smaller, perhaps less cohesive, unincorporated citizens' groups also have a limited reputation and perhaps a mixed reputation. In many cases, it may be arguable that the reputation of the group is that they are "radicals" or "troublemakers." It may be difficult to determine whether the individual members of a group should sue. Whether the individual members can sue will depend upon whether reasonable people would believe a defamatory statement about the group refers to that individual. Thus, if an indi- vidual feels that his personal reputation has been damaged by defam- atory statements about a group to which he belongs, it may be necessary for him to show that the group is so small that a person hearing the statements would reasonably believe that they point to each member of the group. Or it might be necessary for him to show that he is so closely identified with this group in the public eye, perhaps as a spo- kesperson, or the group is so closely identified with him, that people would believe that the statements referred to him. Obviously, defa- mation suits by small groups and their members should be approached with caution. Defamation, Libel and Slander 121 WHAT DEFENCES ARE THERE TO A DEFAMATION SUIT? Generally, saying that one did not intend to hurt someone's reputation is no defence to a defamation suit. The test is not the motives of the person who made the statement, but the effect the statement would have in the eyes of the community. However, making a statement that is harmful to someone's reputation is not always defamation. The most important matter to consider is the truth of the statement and whether one can prove it. If the statement is true, the speaker should have nothing to fear. However, once a speaker says something, the burden is on him to prove that it is true. This can be difficult. For example, a reporter or broadcaster may quote someone as having said something that makes the person quoted seem ridiculous. If the person quoted actually made that statement, however stupid, the re- porter or broadcaster is not liable for repeating it. (Of course, the reporter or broadcaster would be acting unethically if he reported some- thing said "off the record.") However, if the person quoted later denies that he ever made the statement attributed to him, the burden of proving in court that the statement was made would be on the reporter or broadcaster. This is why reporters often want a witness to any statement that may be defamatory or want to confirm the truth of the statement before reporting it. In this kind of situation, consent would also be a defence. If someone consents to his statement being reported, he cannot later sue. Similarly, if someone consents to the publication of a statement made about him by some other person, he cannot sue. Williams states that: The defence of consent will be available where the plaintiff has actively encouraged, solicited or induced the publication of the defamatory state- ments. The consent must be expressed or implied, but it cannot be passive." WHAT IS FAIR COMMENT? Fair comment is another important defence for the public interest ad- vocate. Even if what you say is untrue, your opinion may be protected in some circumstances. If it is important to the community that some matter or conduct be widely discussed, or if the facts are a matter of public record, such as births, marriages, deaths, convictions and changes of name, anyone can comment on them. However, to rely upon the defence of fair comment, you must "get your facts right"; that is, you must ensure that the facts upon which you base your 122 How to Fight for What's Right comment are true. You must also establish that the comment is in fact fair and not distorted, and that you acted without malice. This defence applies only to comments about matters of genuine public interest. For example, it may be fair comment to say that a politician is unfit to hold public office because of activities he engages in or statements he has made. WHAT IS THE DOCTRINE OF PRIVILEGE? The doctrine of "privilege" provides a defence against defamatory statements made in situations where it is in the public interest to allow freedom of speech, even at the risk of harming someone's reputation. Ironically, most public interest advocates will not be able to take advantage of this defence. It is generally available only to people in authority. Communications between a lawyer and his client, many statements by Cabinet ministers and deputy ministers, reports by very senior military officers to their superiors and virtually all statements made by judges and members of quasi-judicial tribunals, as well as lawyers, witnesses, parties and jurors taking part in judicial or quasi- judicial proceedings, are absolutely privileged. Members of Parliament and of the Provincial Legislatures are also absolutely safe from def- amation suits for anything they say within the legislative chamber. Statements made by others in certain circumstances are subject to a qualified privilege if made without malice. If the speaker has a legal, moral or social duty to give information to the general public, or to some segment of it, he cannot be sued for defamation provided that there is a public interest in the matter being commented on. However, this defence requires both that the speaker have a duty to communicate and that there be a public interest in receiving the communication. The list of people who have such a duty is short, and is unlikely to include most public interest advocates. It consists primarily of elected officials and civil servants carrying out duties imposed upon them by statutes. It does not include newspapers. Statements made in self-defence in response to an attack on some personal interest are also privileged. In general, someone may respond to an attack on his property or reputation even if the response crosses the border between fair comment and libel, provided that the response is disseminated to roughly the same audience to whom the original attack was communicated. Although the media have no greater privilege to state or repeat a libel than anyone else, they are protected if they report potentially Defamation, Libel and Slander 123 libellous statements made by participants in judicial or quasi-judicial proceedings during the course of those proceedings. The absolute and qualified privileges that relate to judicial and quasi-judicial proceed- ings, however, may not apply to administrative proceedings. (The distinction between the two types of tribunal is fuzzy. In general, the difference between a quasi-judicial tribunal and an administrative tri- bunal is that the proceedings of the former directly affect a person's financial or property interests, while the proceedings of the latter do not. An important clue as to whether a tribunal is quasi-judicial or administrative is that the former makes a decision, but the latter merely makes recommendation. Anyone who intends to make a statement that he fears may be defamatory, within the confines of a tribunal, or wants to report such a statement, would be well advised to get a lawyer's opinion as to the kind of tribunal it is.) WHAT WILL AN APOLOGY DO? Finally, an apology or retraction, while not providing a complete de- fence to the defamation action, reduces the damages available, pro- vided that it is timely. For example, there are two doctors in the same city named John Jones. A newspaper writes a story saying that "John J. Jones, a prominent doctor, was convicted of arson yesterday," when the arsonist was John K. Jones. The following day, the newspaper prints a correction and apologizes to John J. for any embarrassment it has caused him. The retraction and apology go a long way towards rectifying any damage to John J.'s reputation, and therefore greatly reduce the damages a court would award John J. if he were to sue. HOW CAN DEFAMATION BE AVOIDED? Public interest groups are frequently the last line of defence against injustice. Without them, democracy would not work nearly as well as it does. It is important that they be encouraged to continue to speak out, but their right to freedom of speech is tenuous as they are vul- nerable to defamation suits. Like many of the issues dealt with in this book, the law of defamation is a minefield, and it may be impossible for you to determine whether a statement is defamatory on the basis of this chapter alone. If you feel you have something to say that is of great public im- portance, but you are afraid you might leave yourself open to a def- amation suit, one approach would be to discuss the matter with an elected representative. He may have an absolute or qualified privilege, and you could leave it to his discretion whether to raise the matter. 124 How to Fight for What's Right It is not unreasonable to expect that our elected representatives will exercise their judgment in such a way as to balance the interests of fairness to individuals' reputations against their duty to raise matters of great importance. As a general rule, you will be on safe ground if you attack the issue rather than the person. This is frequently a much better strategy in any event. If you must attack the person, you will generally be on safe ground if you can prove the truth of anything you say. There are often-defamatory and non-defamatory ways of saying the same thing. If you are in doubt, by all means consult a lawyer. How- ever, lawyers are often very cautious and will advise you not to make a statement if you ask, "Should I say this?" Therefore, one Toronto lawyer has suggested, "If you feel you have something to say that is important for the public to hear, do not ask a lawyer, 'Can I say this?' but, 'How can I say this without being subject to a libel suit?' 12 Putting the question in this way will encourage the lawyer to assist you to achieve your goal rather than merely to keep out of trouble." CONCLUSION Unfortunately, libel and slander laws are often more useful to the person who wants to silence a critical public interest advocate than to a defender of the public interest who wants to sue to protect his rep- utation. Citizens who attack the establishment and their lawyers should be aware of the possibility of a "gag" suit. The suit will probably never be pursued, because it has little or no merit. It serves its purpose merely by intimidating the meek. Fortunately, such suits are not com- mon in Canada, and the courts can often quickly dismiss an action brought purely out of malice. The best defence against such a suit is to check your facts carefully before making a public statement and know that you can prove the truth of what you say if you are called upon to do so. On the other hand, it is reassuring to know that the law of defamation also protects public interest advocates from unwarranted slurs. If an opponent says something untrue about you that is harmful to your reputation, issuing a notice that you intend to sue is often all that is needed to obtain a retraction or apology. If this doesn't work, however, you will have to decide whether defending yourself against the attack on your reputation is worth a protracted legal battle. 11. CHARITABLE STATUS AND PUBLIC INTEREST ADVOCACY There are approximately 50,000 registered charitable non-profit or- ganizations in Canada. In recent years, many of them have been tempted to use litigation or political lobbying to raise and resolve issues. But there is a risk that this activity might lead to revocation of a group's charitable status, and this would cripple their fund-raising efforts. Deprivation of charitable status is one of the most terrible threats to the financial survival of a public interest group. Many groups are asking community legal clinics and public interest lawyers for legal opinions on which of their activities might jeopardize their charitable status. Lawyers who are employees of such charitable organizations must be in a position to advise their boards of directors on this contentious issue. WHAT IS CHARITABLE STATUS? Under the Income Tax Act, public interest groups that are recognized by the federal government as "charitable organizations" and "char- itable foundations" are exempt from paying tax on their income. More importantly, such groups can issue a receipt that allows donors a deduction from their income tax. This "charitable status" is crucial to organizations promoting social change; without it they could not attract the donations that finance their activities. Only a handful of public interest groups in Canada have memberships large enough to sustain them; most depend on grants and donations from individuals, corporations and foundations. It is not surprising, therefore, that public interest groups often ask their lawyers, "If we engage in litigation or law reform, will we lose our charitable status?" The answer is far from clear. 125 126 How to Fight for What's Right HOW CAN CHARITABLE STATUS BE REVOKED? Recognition as a charity is granted by the federal Department of Na- tional Revenue. But the government has the power to revoke the char- itable status at any time if it decides the group is no longer a charity. This revocation is subject to an appeal to the Federal Court. Unfor- tunately, the Income Tax Act does not explain what it means by "charity" or "charitable." The definition comes from a court's 1891 categorization 1 of a long list of worthy causes in the preamble to an English law passed in 1601, the Statute of Charitable Uses. This statute was repealed in 1888, but its preamble was retained in later statutes. According to the judicial decisions interpreting the preamble over the years, a "charity" is a trust for the relief of poverty, a trust for the advancement of education, a trust for the advancement of religion or a trust for other purposes beneficial to the community. The Canadian and British courts still use this definition when interpreting the term "charity" in statutes like the Income Tax Act. In determining whether the "objects" or "purposes" for which a group is formed are "char- itable," the Saskatchewan Court of Appeal ruled in 1951 that, "Trusts for the attainment of political objects have always been held not to be valid charitable trusts." 2 This statement of the law has been adopted several times by Canadian courts, and, unless and until the Supreme Court of Canada rules otherwise, this would seem to be the law in Canada. Thus, while we do not have a comprehensive legal definition of charity, we do know that the definition excludes groups whose purposes are "political." What "political" means, however, is even more un- clear. It is not defined in the Income Tax Act. To clarify its meaning, Revenue Canada drafted an "Information Circular" in 1977 explaining what activities it considered to be "political." 3 The circular restricted the activities of public interest groups so severely that it created an uproar. Public interest groups (even traditional charities like the United Way and the churches), civil libertarians and the press claimed that the government's definition of "political" was an attempt to muzzle free speech and handcuff public interest groups. According to the circular, writing letters to the editor could be "political" and, if a group published a newsletter containing political comment or held a conference on political issues, it must give equal space or time to all viewpoints. Charitable Status and Public Interest Advocacy 127 HOW DO THE COURTS INTERPRET THE LAW IN REGARD TO CHARITABLE STATUS? The government claimed the circular did nothing more than set out the state of the law as interpreted over the years by the courts. (In fact, in some respects, the government's interpretation may have been less restrictive than some of the courts' decisions.) Nevertheless, to quiet the backlash, the government "withdrew" the circular. Perhaps the clearest and most complete description of the meaning of "political" is in the Saskatchewan decision mentioned earlier: "The word 'political' includes activities for the purposes of influencing Leg- islature or Parliament to change existing laws or to enact new laws in accordance with the view or the views of the interested parties." 4 Opposing or resisting proposed changes in the law appear to be equally "political." 5 According to this definition, all law reform activities would seem to be "political." Chief Justice Martin's statement alone would lead one to believe that the preparation of law reform proposals, briefs and submissions to government can lead to loss of charitable status; but, in fact, there are no cases stating whether preparing law reform proposals is "political" activity. In its Information Circular, Revenue Canada gave the opinion that the presentation of briefs, whether spontaneously or at the request of a public body, and representations to legislators are not "political" as long as a group does not undertake a program to promote its rec- ommendations, otherwise attempt to influence legislation, or engage in a "campaign" to influence intended or specific legislation. But in reality, the decision of a court as to whether an activity is "political" or "charitable" often seems to depend on the time, the place and the cause being promoted. Ontario courts have considered the promotion of civil rights 6 and the promotion of legislation prohib- iting the consumption of alcohol to be charitable. 7 British courts have held that campaigns for free milk for pupils in public schools 8 and for anti-vivisection legislation are uncharitable. 9 A fund to be used to persuade people to free slaves or not to acquire slaves was held to be charitable in Massachusetts in 1867, 10 but in the same year, a Massachusetts court held that securing the passage of legislation granting women equal political rights with men was not charitable." Promoting the enjoyment of civil rights is charitable in Illinois 12 and California, 13 but not in Massachusetts. 14 Advocating prohibition is un- charitable in New York, 15 but charitable in Ontario. 16 128 How to Fight for What's Right Courts and commentators have often suggested that as long as the main objects of an organization (it no longer need be a "trust") are charitable, the fact that it has some ancillary objects that are not will not deprive it of charitable status. Whether that is still true in Canada, however, is questionable. The Income Tax Act says that a charitable organization must devote all its resources to charitable activities, and a charitable foundation (a charitable organization that gives money to other charitable organizations) must be operated exclusively for char- itable purposes. Perhaps one way around this narrow definition is the approach taken by some courts which have said that certain objects of an organization were exclusively charitable and others were not. 17 Money spent on these "exclusively charitable" objects is not subject to income tax, while money spent to advance its other objects would be taxable. A major source of confusion in this issue is the fact that the cases talk about charitable "purposes" and "objects," while groups really want to know about specific activities. The activities or operations of a group can be used by the government to interpret what the group's real objects (objectives) are, regardless of what the constitutional ob- jects say. No group is likely to state its objects as being "the violent overthrow of the Canadian government'' when applying for charitable status. It is much more likely to couch them in terms of "educating the public about alternative public policies" or some other such thing. Regardless of what a group says its objects are, the government can look at what it actually does. By the same token, however, the gov- ernment must interpret the reasons for a group's activities in light of its stated objects. For instance, if an environmental group submits a brief to Parliament asking for new environmental protection legislation, or if it takes a test case to court, is the primary purpose of this action to achieve political change or to enhance the quality of the environ- ment? In the case of litigation, under our corporate laws, any corpo- ration can engage in litigation for the purposes of obtaining any end that is within its objects. This should also be true of any incorporated charitable trust. There are no cases saying that litigation itself is un- charitable. Whether the use of litigation as a tool to achieve social change can be considered "political" will probably depend on the circumstances of the individual case. The distinction between activities and objects is important because isolated activities should not be sufficient jr tification for refusing or revoking charitable status if the group's overall objects are the test of Charitable Status and Public Interest Advocacy 129 whether it is a charity. To prove that a group is not a charity the government should have to show that its activities are overwhelmingly "political." If a group publishes a newsletter or magazine, for ex- ample, using the "objects" test, a single editorial or article criticizing the government should provide very little evidence that the group's overall purpose is political. But how many critical articles will it take before a "charitable" group becomes a "political" one? With such ambiguity, the potential for government harassment and intimidation of public interest groups is obvious. CAN A PUBLIC INTEREST GROUP LOSE ITS CHARITABLE STATUS? Until now, no public interest group has ever had its charitable status revoked, although over the past three years there have been persistent rumours about the government threatening to revoke the charitable status of one group or another because of involvement in protest marches or demonstrations. The cases interpreting whether a group's objects were charitable have always arisen in a different context — usually arguments over how a charity is entitled to spend its money and who is eligible to receive it, and the question of whether the recipient of a grant or donation has to pay tax on it. However, Canada is now facing its first test case. Recently Revenue Canada decided to revoke the charitable status of the Manitoba Foun- dation for Canadian Studies, which publishes the left-leaning magazine Canadian Dimension. The magazine claims to be educational, and therefore qualified to have charitable status, but the government department claims that to be educational a magazine must canvass all sides of an issue. It says that Canadian Dimension is political because its political articles al- ways take a socialist position. But the magazine also features many non-political articles. In the letter announcing the deregistration, Rev- enue Canada explained that "it would appear that [Canadian Dimen- sion's] goal is not to educate the reader in the sense of training the mind in matters of political science, but to promote a particular ide- ology." The magazine's editor responded that this is a "crude attempt at political censorship.'' The foundation has appealed the deregistration to the Federal Court. The Canadian Dimension case may be merely the beginning of a widespread deregistration of controversial public interest groups. As the Ottawa tax lawyer Arthur Drache has been quoted as saying, "Canadian Dimension is clearly an easy target be- 130 How to Fight for What's Right cause it does not command widespread popular support. If Canadian Dimension is hit, there is no telling how far Revenue Canada will go." 18 CONCLUSION There are about 50,000 registered charities in Canada. The state of uncertainty about what constitutes "politicking" is detrimental not only to their freedom of expression but to the development of social policy, which has been assisted by the advice of such groups in the past. The outcome of the Canadian Dimension case may help to clarify the rights of public interest groups, although it would be better to have the government enunciate clear policy and invite public discussion of the appropriate role for charities in modern society than to ask the courts to make social policy on the basis of 300-year-old laws. In the meantime, groups may obtain some protection through the traditional approach of establishing two separate organizations: a char- itable foundation that raises money and a separate association that engages in the activities that may prove controversial. In the past these foundations have donated some or all of the money they raised to the "activist" organizations. This worked as long as the government was liberally minded, but it is questionable whether it can withstand close scrutiny. To enhance the separation between such bodies, it might be advisable for them each to have boards of directors consisting largely of different individuals, and for the bulk of the activist group's activities to be clearly non-political. It is also wise for a controversial group to diversify its sources of revenue as much as possible so that its survival does not depend on charitable donations. Membership drives, sales of publications and development of marketable services and products can help. CONCLUSION We've now explored the various strategies available to public advocates and their lawyers in getting an issue into the courts, what to do in the courts and how to avoid the courts. Clearly the situation is weighted against the citizen advocate. But, as this book has shown, public advocates can win in the face of very stiff opposition. But the fact remains that the challenges facing public interest groups and their lawyers are difficult ones. In many instances, the full weight of big business or big government can shatter the financial and or- ganizational capabilities of citizen groups before such groups have had the opportunity to effectively present their cases. The opposition is very powerful and benefits from close association with legislators and bureaucrats. Citizen groups are denied the kind of access that business has always had — access through their lobbyists to government cabinet ministers and senior bureaucrats. The data flow between government and big business means that decisions affecting all of us are based on information that few of us have access to. Frequently, government relies on statistics and figures that are supplied by business to make major policy decisions. If government does undertake policies that will affect the property and financial interests of business, lengthy court cases can occur and all too frequently government backs down. Citizens can and do fight back. But getting a case into the courts is only the beginning of what can prove to be a lengthy, frustrating and very expensive lesson in how the law works. The question of costs looms very large for individuals or groups who can overcome the standing barrier. Because of the costs involved if a case is lost, few citizens are willing to use the courts to seek redress. A wealthy cor- poration that stands to lose millions of dollars because of a consumer protection policy will challenge the policy in the courts. But thousands of consumers who individually lose a few hundred dollars because they have had to repair a defective product will never sue the manufacturer 131 132 How to Fight for What's Right as long as each of them is liable for what may amount to several thousands of dollars in costs. The law needs to be reformed. There should be a special costs rule in cases where the plaintiff has little to gain financially if he wins, but much to lose if he doesn't. In an issue where it's a matter of principle rather than financial gain, the plaintiff should be protected against costs. But that hasn't happened yet. Because of the costs involved and the intimidating strength of the opposition, citizen groups feel isolated and vulnerable. In the past the legal profession has not gone out of its way to fight for citizen activists. Consumers, ethnic minorities, victims of pollution, the poor, denied the kind of access that their opponents enjoy, have taken to the streets to protest. Frequently their actions have gotten them into court, but on the wrong side of the law. Recently, a new breed of lawyer has emerged, running storefront offices and community legal clinics. The tide is turning slowly in the fight to redress grievances and speed social change, but it is an uphill battle. Advocates have challenged the barriers the courts put in their way. They have explored ways of getting the courts to give the same con- sideration to arguments based on principle and the public good as they give to private concerns. The lawyers have needed to learn how to protect themselves and their clients from harassment by the establish- ment. Lawyers and public interest groups have fought, with some success, for better legal aid plans. Some pressure groups that formed in the Sixties were so successful that they now can pick up the telephone and get results from government agencies without having to get the attention of bureaucrats and politicians by first demonstrating on the steps of Parliament. Some groups are now routinely consulted before changes in law or policy are made that affect their constituents. There is still a long way to go. It's worthwhile recalling that civil conspiracy laws were originally developed by a legal system intent on supporting employers who were trying to prevent their employees from organizing unions. The courts repeatedly ruled against workers in declaring the illegality of strikes and picket lines. Only militant labour action forced a change. Gradually the courts and government have come to recognize the legitimacy of unionism — though the fight is never quite over. Today those same conspiracy laws are being used to stop boycotts and picket lines thrown up by consumer advocates and tenants. And government actions in regard to charitable status pose a frightening new threat to groups who use dissent to urge social change. Conclusion 133 By now you have some idea how to raise social issues in the courts despite the standing barrier, how to launch a test case, how to organize or join a protest march without being arrested, and how to speak out or support public interest litigation without being sued. But is this enough? Should the right to dissent be subject to so many restrictions in a democratic society? Does the limited right you have to raise public issues in the courts guarantee anything but a hostile reception? It should be apparent from reading this book that law reform is necessary just to ensure that people have the right to speak out about injustice without fear of harassment and to use the courts without paying crushing costs. The need for reform of our laws is a pressing one. Social change and a fair and equitable society will only come about when the law recognizes the right to peaceful dissent, encourages the formation of public interest groups and gives the weak the same rights and resources as the strong. NOTES PART I: GETTING INTO COURT Chapter 1: Standing 1. Boyce v. Paddington Council, 1 Ch. 109 (1903). 2. Re Save Our Parkland Association et al, 50 WWR 92 (1964). 3. Thorson v. Attorney General of Canada, 43 DLR 1 (1974). 4. Nova Scotia Board of Censors v. McNeil, 55 DLR (3d) 632 (1975). 5. Rosenberg et al\. Grand River Conservation Authority, 69 DLR (3d) 384 (1975). 6. Re Pirn and Minister of the Environment, 23 OR (2d) 45; 94 DLR (3d) 254 (1978). 7. Re Brown et al and Patterson, 21 CCC (2d) 373 (1974). 8. Re Royal Commission on Conduct of Waste Management Inc. et al, 17 OR (2d) 207 (1977). 9. See for example Re Canadian Broadcasting League and CRTC and Rogers et al, 101 DLR (3d) 669 (1980). Chapter 2: Amicus Curiae 1. For a detailed discussion of the background and practice of the amicus curiae, see "The Amicus Curiae," 20 Chitty's Law Journal 94 (1972), and Gazette of the Law Society of Upper Canada, Vol. V, No. 2, p. 110(1971). 2. United States v. Spock, 416 F. (2d) 165 at 169, note 5 (1969). 3. Beaty & Co. v. McCarty, 52 OLR 203. 4. Reference re Sections 222, 224 and 224A of the Criminal Code, 3 CCC (2d) 243. 5. Re MacMichael (1969), Times, January 14 and January 17, cited in G.J. Borrie and N.V. Lowe, The Law of Contempt (London, Butterworths, 1973) at p. 18. 134 Notes 135 6. Re Drummond Wren, 4 DLR 674 (1945). 7. R. v. ex rel. Rose v. Marshal, 48 MPR 64, at 66-7. 8. Re Chateau-Gai Wines Ltd. and Attorney General of Canada, 14 DLR (3d) 411, at p. 413 (1970). 9. Regina v. Wiebe, Provincial Court (Criminal Division) of Alberta, Three Hills, January 12, 1978, His Honour Judge Oliver. The decision is reported at 3 WWR 36 (1978), but the judge's reasons for appointing an amicus are unreported. 10. Copithorne v. Copithorne, Supreme Court of Alberta, Trial Divi- sion, Calgary, December 23, 1976, decision of the Honourable Chief Justice Mil vain. 11. "The Amicus Curiae," supra, note 1, Chitty's at p. 136, Gazette at p. 125. 12. Saumur v. City of Quebec, 2 SCR 299, at 325 (1953). 13. Re Clark et al and Attorney General of Canada, 17 OR (2d) 593 at 598 (1977). 14. Re Ronark Developments and City of Hamilton et al, 4 OR 195 (1974). Upheld in the Court of Appeal: 5 OR (2d) 136. 15. McDonald's Restaurants of Canada v. Corporation of the Borough of Etobicoke, 5 CPC 55 at 57 (1977). 16. R. v. Lake Ontario Cement Ltd. 2 OR 247, 11 CCC (2d) 1 (1973). The reported case makes no mention of amicus curiae, describing counsel merely as solicitors for the complainant. However, see the comment on this case in Volume 11, Number 2 of the Canadian Environmental Law News, April 1973, at p. 25. 17. However, the recent practice of the Supreme Court of Canada has been to award no costs in favour of or against an intervenor unless the intervenor has misbehaved in some way. 18. Rule 60 of the Supreme Court Rules (SOR/72-596): 60(1) Any person interested in an appeal between other parties may, by leave of the court or judge, intervene therein upon such terms and conditions and with such rights and privileges as the court or judge may determine. (2) The costs of such intervention shall be paid by such party or parties as the Supreme Court shall order. 136 How to Fight for What's Right 19. Nova Scotia Board of Censors and Attorney General of Nova Scotia v. McNeil, 32 CRNS 376 (1975). 20. Morgentaler v. the Queen, 20 CCC (2d) 449 (1975). 21. Working Draft of Proposed Ontario Rules of Civil Procedure, April 1978, Rule 15, Civil Procedure Revision Committee, Walter B. Williston, Chairman. 22. Rule 504a of the Rules of Practice and Rule 24a of the Rules of Respecting Criminal Proceedings of the Supreme Court of Ontario, effective September 12, 1979. 23. The Ontario Court of Appeal recently permitted twenty groups and individuals to intervene under Rule 504a in a constitutional reference concerning the validity of new landlord-tenant legisla- tion: Reference Re Residential Tenancies Act, 26 OR (2d) 609 (1980). 24. Reference Re Regina v. Truscott, 62 DLR (2d) 547 (1967). 25. Reference Re Legislative Privilege, 83 DLR (3d) 161 (1978). 26. Reference Re Residential Tenancies Act, 26 OR (2d) 609 (1979). 27. Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements, 89 DLR (3d) 460 (1978). 28. Reference Re Validity of Wartime Leasehold Regulations, SCR 124 (1950). 29. Reference Re Anti-Inflation Act, 68 DLR (3d) 452 (1976). 30. Central Canada Potash Company v. Government of Saskatchewan, 88 DLR (3d) 609 (1978). Chapter 3: Test Cases 1. Loew's Montreal Theatres Limited v. Reynolds, KBD 30 (1929). 2. R. v. McKay, 113 CCC 56 (1955). 3. R. v. Emerson, 113 CCC 69 (1955). 4. R. ex rel. Nutland v. McKay, 115 CCC 104 (1956). 5. R. v. Toronto Refiners and Smelters, 20 OR (2d) 772 (1978). Notes 137 6. R. v. Watts and Gaunt, 1 DLR 610 (1953); revd on other grounds 3 DLR 152 (1953); R. v. Newsome; R. v. Browne, 54 Cr. App. R. 485 at 493 (1970). 7. Stokes v. B.C. Electric Railway Co., 12 DLR 379 (1913). PART II: BEFORE THE COURTS AND TRIBUNALS Chapter 4: Costs 1. Anderson v. Busse and Federation Insurance Co. of Canada, 2 OR 454 (1946); Gracie v. King, OWN 356 (1943). 2. Re McMaster, 2 WWR 1032 (1947); aff d 1 WWR 648 (1948). 3. Re Bothwell Estate 1 WWR 1041 (1950); York Condominium Corp. No. 148 v. Singular Investments Ltd., 16 OR (2d) 31 (1977). 4. Rosenberg et al v. Grand River Conservation Authority, 9 OR (2d) 771; 5 CELN 156 (1976). 5. Rosenberg et al v. Grand River Conservation Authority, 12 OR (2d) 496 (1976). 6. Miller v. City of Winnipeg, 4 CELN 167 (Man. QB) (1975). 7. Re Pim and Minister of the Environment, 23 OR (2d) 45; 94 DLR (3d) 254 (1978). 8. Re Central Wellington Planning Area Official Plan Amendment, 80 OMBR 263 at p. 284 (1978). 9. Reference re Principles of Power Costing and Rate Making for Use by Ontario Hydro, 6 CELN 171 (1977). 10. Re Pajelle Investments Ltd. and Booth (No. 2), 7 OR (2d) 229 at 239-41; 5 CELN 163 (1975). 11. Federal Court Act, RSC 1970, c. 10 (second supplement), rule 348. 12. Scribner v. Parcells, 20 OR 554 (1890). 13. Barrie Public School Board v. Town of Barrie, PR 33 (1899). 14. Re Avery, OWN 475 (1952). 138 How to Fight for What's Right 15. Fraser River Contracting Ltd. v. FWP Construction Ltd., 2 WWR 354 (1978). 16. Myers v. Elman, AC 282 (1940). 17. Re Ontario Crime Commission, 1 OR 391 (1962). 18. Re the Queen and Fisher et al, 76 DLR (3d) 332; aff'd 78 DLR (3d) 215 (1976). 19. Re Hawrish, 50 WWR 616 (1964). Chapter 5: Contempt 1. R.v. Larue-Langlois, 14 CRNS 68 (1970). 2. Re Tilco Plastics Ltd. v. Skursat et al, 57 DLR (2d) 596 (Ont. H.C.) (1966); R. v. United Fishermen and Allied Workers et al, 65 DLR (2d) 220 (1967); Bassel's Lunch Ltd. v. Kick et al, 4 DLR 106 (1936). 3. Borrie and Lowe, The Law of Contempt at p. 2. 4. Tony Poje et al v. Attorney General of British Columbia, 2 DLR 785 (1953). 5. Borrie and Lowe, at p. 17. 6. Borrie and Lowe, at p. 17. 7. For example Re Duncan (1957), see Borrie and Lowe, at p. 20. 8. Law Reform Commission of Canada, Contempt of Court, Working Paper 20 (Ottawa, Minister of Supply and Services Canada, 1977) at p. 35. 9. Ibid at p. 30. 10. Borrie and Lowe, chapter 6. 11. Ambard v. Attorney General for Trinidad and Tobago, AC 322 at 355 per Lord Atkin (1936). 12. R. v. Metropolitan Police Commissioner, exparte Blackburn (no. 2) 2 QB 150 at 155 per Salmon, L.J.(1968). 13. R. v. Gray, 2 QB 36 at 40 per Lord Russell, C.J. (1900). 14. Lord Denning, M.R. in the Blackburn case, note 12. Notes 139 15. Re Regina and Carocchia, 14 CCC (2d) 354 (1972). 16. Attorney General of Ontario v. Canadian Broadcasting Corpora- tion et al, 39 CCC (2d) 182 (1977). 17. Re Attorney General for Manitoba and Radio OB Ltd. et al, 31 CCC (2d) 1 (1976). 18. Sommers v. Sturdy, 6 DLR (2d) 642 (1956). The speech was given under certain extenuating circumstances, however, and the decision may not have much application to other circumstances. 19. R. v. Bryan et al, 18 CR 143. See also Fortin v. Moscarella et al, 23 WWR 91 (BCSC) (1957). 20. Re Depoe et al and Lamport et al, 1 OR 185 (1968). 21. C.J. Miller, Contempt of Court (London, Paul Elek, 1976). Chapter 6: Maintenance and Champerty 1. Prosser v. Edmonds 1 Y & C Ex 481; 160 ER 196; Goodman v. the King, 4 DLR 361 (1939). 2. Alabaster v. Harness, 1 QB 339 (CA) (1895). 3. Greig v. National Union of Shop Assistants, 22 TLR 274 (1906). 4. Fleming, The Law of Torts, 5th ed. (Melbourne, The Law Book Co., 1977) at p. 611. 5. Fleming, p. 612. 6. Grant v. Thompson, 72 LT 264 (1895). 7. Amacher v. Eriksen, 42 WWR 348 (1963). 8. Neville v. London Express, AC 368 (1919). 9. Skelton v. Baxter, 1 KB (CA) (1916). 10. This would be a logical implication of the principle set out in Amacher, note 7. Also Goodman, note 1. 11. Greig v. National Union of Shop Assistants, note 3 at 275. 12. Martell v. Consett Iron Co., Ch. 363 (1955); cf. Plating Co. v. Farquharson, 17 Ch. D. 49 (1881). 140 How to Fight for What's Right 13. Harris v. Briscoe, 17 QBD 504 (1886); Stevens v. Keogh, 72 LLR 1 (1946). 14. Fleming, at p. 615. 15. Orkin, Legal Ethics, (Toronto, Cartwright and Sons, 1957) at p. 160. Chapter 7: Seeking an Adjournment 1. Re Piggott Construction Ltd. and United Brotherhood of Carpen- ters and Joiners of America, Local 1990, 31 DLR (3d) 758 (1972); 39DLR(3d)311 (1973). 2. R. v. Ontario Labour Relations Board, ex pane Nick Masney Hotels Ltd., 7 DLR (3d) 119 (1969); 13 DLR (3d) 289 (1970). 3. Re Crux and Leoville Union Hospital Board (No. 2), 32 DLR (3d) 373 (1972); 35 DLR (3d) 619 (1973). See also Masney, note 3. 4. Re Flamboro Downs Holdings Ltd. and Teamsters Local 79, 24 OR (2d) 400 (1979). 5. Re Ramm, 7 DLR (2d) 378 (1957); Re Sreedhar and Outlook Union Hospital Board, 32 DLR (3d) 491 (1972); Re Gasparetto and City of Sault Ste. Marie, 35 DLR (3d) 507 (1973). 6. Flamboro, note 5. 7. Piggott, note 1. 8. Re Gill Lumber and United Brotherhood of Carpenters, 42 DLR (3d) 271 (1973). 9. Re Bass, 19 DLR (2d) 485 (1959). PART III: KEEPING OUT OF COURT AND OUT OF TROUBLE Chapter 8: Demonstrations, Protest and the Law 1. Robertson and Rosetanni v. the Queen, SCR 651 (1963). 2. For a more complete account of the legal entanglements that or- ganizing and participating in a demonstration have created for Notes 141 Greenpeace and its lawyer, see Peter C. Ballem, "The Icemen Killeth," in Canadian Lawyer, April, 1980. 3. Rex v. Aldred, 22 Cox CC 1 at 4 (1909). 4. Ruby, Clayton C , "Obstructing a Police Officer," 15 Criminal Law Quarterly 375 at 376. 5. Hogben, v. Camber, VLR 285; (1940); R. v. Boulanger, 4 CCC 85 (1969). 6. R. v. Long, 1 CCC 313 (1970). 7. Ibid. 8. R. v. Moore, 1 SCR, 195, 90 DLR (3d) 112 (1979). 9. W.S. Tamopolsky, The Canadian Bill of Rights, 2nd ed. (Toronto, McClelland and Stewart, 1975) Carleton Library edition at p. 204. 10. Ibid at 206. 11. Regina v. McGregor, Taylor and Lee, 8 CELR 127 (1979). 12. Hubbard v. Pitt, 3 WLR 201 (1975), affirming 2 WLR 254 (1975). Chapter 9: Conspiracy 1. Crofter Hand Woven Harris Tweed Co. v. Veitch, AC 435 at 442-3 (1942). 2. South Wales Miners' Federation v. Glamorgan Coal Co., AC 239 at 249 (1905). 3. Brimelow v. Casson, 1 Ch. 302 (1924). 4. Slade and Stewart v. Haynes, 5 DLR (3d) 736 (1969). 5. Read v. Friendly Society of Stonemasons, 2 KB 88 at 97 (1902). 6. Camden Nominees Ltd. v. Forcey, 1 Ch. 352 (1940). 7. South Wales Miners' Federation v. Glamorgan Coal Co., note 2. 8. Crofter Hand Woven Harris Tweed Co. v. Veitch, note 1. 9. Scala Ballroom (Wolverhampton) Ltd. v. Ratcliffe, 1 WLR 1057 (1958). 142 How to Fight for What's Right Chapter 10: Defamation 1. Youssoupoffv. MGMLtd., 50TLR581, perSlesser, L.J. (1934). 2. Salmond on Torts, 16th ed. (1973) at p. 143. 3. Sim v. Stretch, 52 TLR 669 (1936); 2 All ER 1237 (1936). 4. See Dennison v. Sanderson, OR 601 (1946); 4 DLR 314 (1946); Braddock v. Blevins 1 KB 580 (1948); 1 All ER 450 (1948); and Grant v. Reader's Digest Assoc. Inc. 151 F. (2d) 733 (1945). 5. J.S. Williams, The Law of Defamation (Toronto, Butterworths, 1976) at p. 53. 6. Williams, p. 17. 7. Capitol and Counties Bank v. Henty, 7 App. Cas. 741 (H.L.) (1882). 8. Wenman v. Ash, 13 CB 836 (1853); 138 ER 1432. 9. Williams, p. 21. 10. Williams, p. 22. See Bognor Regis Urban District Council v. Campion, 2 All ER 61 at p. 66 (QB) (1972). 11. Williams, at p. 106. 12. Lome Slotnik, speaking to a Law Union of Ontario "Survival Seminar for Activists" in 1980. Chapter 11: Charitable Status 1. Commissioners for the Special Purposes of the Income Tax Acts v. Pemsel, AC 531 (1891). 2. Re Patriotic Acre Fund, 2 OLR 624 at 634, per Martin, CJS (1951). 3. Registered Charities: Political Objects and Activities, Information Circular No. 78-3, Revenue Canada, February 27, 1978. 4. Op. cit. note 2. 5. See, for example, Re Hopkinson, 1 All ER 346 at 350 (1849), and Re Co-operative College of Canada and Saskatchewan Human Rights Commission, 64 DLR (3d) 531 (1975). 6. Lewis v. Doerle, 25 OAR 206 (1898). Notes 143 7. Farewell v. Farewell, 22 OR 573 (1892). 8. Baldry v. Feintuck, 1 WLR 552 (1972). 9. Animal Defence and Anti-Vivisection Society v. Island Revenue Commissioners, 66 TLR (pt. 2) 1091 (1950). 10. Jackson v. Phillips, 96 Mass. 539 (1867). 11. Ibid. 12. Garrison v. Little, 75 111. App. 402 (1897). 13. Collier v. Lindley, 266 P. 526 (1928). 14. Op. cit. note 10. 15. Buell v. Gardner, 144 NY 5945 (1914). 16. Op. cit. note 7. 17. See Towle Estate v. MNR, 67 DTC 5003 (1966). 18. In The Toronto Clarion, April 16 to April 29, 1980, p. 3. Abbreviations Most of the works cited above are available only in the libraries of law schools and in court libraries. The public is not assured of automatic access to these libraries but if you are specific about what you are looking for, librarians will frequently take the time to help you out. AC Appeal Cases, Britain All ER All England Law Reports, Britain BCSC British Columbia Supreme Court CA Court of Appeal CCC Canadian Criminal Cases CELN Canadian Environmental Law News Cox CC Cox's Criminal Cases, Britain CRNS Criminal Reports (New Series), Canada DLR Dominion Law Reports, Canada DTC Dominion Tax Cases ER English Reports, Britain HL House of Lords 11 1 App Illinois Appellate Reports KBD King's Bench Division Reports, Britain 144 How to Fight for What's Right LT Law Times Reports, Britain Mass Massachusetts Reports MPR Municipal and Planning Reports, Canada NY New York Reports OAR Ontario Appeal Reports OLR Ontario Law Reports OMBR Ontario Municipal Board Reports OR Ontario Reports OWN Ontario Weekly Notes P Pacific Reporter, U.S. PR Ontario Practice Reports SCR Supreme Court Reports, Canada SOR Statutory Orders and Regulations, Canada TLR Times Law Reports, Australia VLR Victoria Law Reports, Australia WWR Western Weekly Reports, Canada Y & C EX Yonge and Collier, Exchequer Cases, Britain GLOSSARY Action: Proceedings taken by one person against another in a court of justice for the enforcement or protection of a right, or the redress or prevention of a wrong. Appellant: A person who, having lost his case, has appealed it to a higher court. Appellate court: Any court that has jurisdiction to hear appeals from other courts. Defendant: The person against whom legal proceedings are brought in a civil court or who is charged with an offence in a criminal court. In criminal proceedings this person is sometimes called "the accused." Disbursements: Money paid out by a lawyer in the conduct of a case, and for which he is entitled to a credit from his client on rendering his account. Natural justice: The rules of natural justice are rules to ensure fairness and impartiality in the courts and in many administrative procedures. The rules provide that public officials such as judges, arbitrators, municipal council members and others who have a substantial interest in the outcome of any decision may not participate in making the decision. They also provide a right to a fair hearing, although what is a "fair hearing" varies according to the circumstances of each case. Plaintiff: The person commencing an action in the civil courts. Respondent: The person who, having won his case, is "responding" to an appeal in a higher court, brought by the loser. Subjudice: Under consideration by a court. Sub judice rule: The rule that it is a contempt of court to publicly express opinions about or publish unbalanced reports of any matter while it is before the courts. Tort: A private or civil wrong or injury based on a general duty rather than on a contract. The most common tort is negligence, a duty to take reasonable care not to harm those around you. The torts discussed in this book are conspiracy, maintenance and champerty, and defamation. 145 FURTHER READING PART I: GETTING INTO COURT Chapter 1: Standing S.H. Berner, Private Prosecution and Environmental Control Legis- lation (University of British Columbia Faculty of Law, commissioned by the Federal Department of the Environment, 1972). A.R. Roman, "Is the Locus Standi Cure Worse than the Disease?" in Environmental Rights In Canada (Butterworths, Toronto, 1981). L.A. Stein, ed., Locus Standi (Law Book Company, Sydney, 1979). S.M. Thio, Locus Standi and Judicial Review (Singapore University Press, Singapore, 1971). Chapter 2: Amicus Curiae Albert S. Abel, Laskin's Canadian Constitutional Law (4th ed., Toronto: Carswell, 1973). See pages 84 to 91, especially regarding the use of extrinsic evidence in a constitutional reference. Alan D. Levy, "The Amicus Curiae," 20 Chitty's Law Journal 94 (1972). Chapter 3: Test Cases Ross Howard, Poisons in Public (Toronto, James Lorimer & Company, 1980). Clayton Ruby, Sentencing, 2nd ed. (Toronto, Butterworths, 1979). See pp. 172-3. PART II: BEFORE THE COURTS AND TRIBUNALS Chapter 4: Costs Costs: Party and Party Updated (Toronto, Department of Continuing Education, Law Society of Upper Canada, 1979). 146 Further Reading 147 Costs: Solicitor and Client Updated (Department of Continuing Education, Law Society of Upper Canada, Toronto, 1979). Jerome Carlin, Lawyer's Ethics: A Survey of the New York City Bar (Russell Sage Foundation, New York, 1966). Henry Drinker, Legal Ethics (New York, Columbia University Press, 1965). Mark Orkin, The Law of Costs (Toronto, Canada Law Book Limited, 1968). Mark Orkin, Legal Ethics: A Study of Professional Conduct (Toronto, Cartwright, 1957). Ola Orojo, Conduct and Etiquette for Legal Practitioners (Sweet and Maxwell, London, 1979). Chapter 5: Contempt G.J. Borrie and N.V. Lowe, The Law of Contempt (London, Butter- worths, 1973). Law Reform Commission of Canada, Contempt of Court, Working Paper 20 (Ottawa, Supply and Services Canada, 1977). C.J. Miller, Contempt of Court (London, Paul Elek, 1976). Chapter 6: Maintenance and Champerty Fleming, The Law of Torts, 5th ed. (Melbourne, The Law Book Co., 1977). See pp. 611-615. Halsbury's Laws of England, vol. 9. See. pp. 272-7. R.F.V. Heuston, ed., Salmond on Torts, 14th ed. (London, Sweet and Maxwell, 1965). See pp. 598-601, 780-82. Chapter 7: Seeking an Adjournment J. Kavanagh, A Guide to Judicial Review (Toronto, Carswell, 1978). D.J. Mullan, Administrative Law (Toronto, Carswell, 1973). D. Mundell, Manual of Practice; on Administrative Law and Procedure in Ontario (Ontario Department of Justice, 1977). 148 How to Fight for What's Right R. Reid and H. David, Administrative Law and Practice, 2nd ed. (Toronto, Butterworths, 1978). A.J. Roman, Guidebook on How to Prepare Cases for Administrative Tribunals (Ottawa, Consumers Association of Canada, 1977). S.A. de Smith, Judicial Review of Administrative Actions (London, Stevens and Sons, 1973). H.W.R. Wade, Administrative Law, 4th ed. (Oxford, Clarendon Press, 1977). PART III: KEEPING OUT OF COURT AND OUT OF TROUBLE Chapter 8: Demonstrations, Protest and the Law David G. Barnum, "The Constitutional Status of Public Protest Ac- tivity in Britain and the United States" (1977) Public Law 310. Kathy Boudin, Brian Glick, Eleanor Raskin and Gustin Reichback, The Bust Book: What to Do Until the Lawyer Comes (New York, Grove Press, 1970). Not everyone will appreciate the tone of this book: "In the future, as our Movement grows, it will be increasingly under attack. Leaders are no longer the only political people who are arrested. Everyone who goes to a demonstration, hands out a leaflet, smokes a joint, goes to a meeting, or runs away from home—each and all are possible targets for the cops and courts." Nevertheless, it contains a great deal of practical advice about demonstrations, arrests, incarcer- ation, bail and trial strategy, although the law is American. Unfortu- nately, The Bust Book is out of print, but you might find it in a library. Paul Copeland, Clayton Ruby and Greg King, Law, Law, Law, 4th ed. (Toronto, Anansi, 1976). Offence/Defence: Survival Seminars for Activists, the Law Union of Ontario, 1980. These materials contain information about law and tactics relating to public meetings, demonstrations, strikes, when an object becomes a weapon, meeting the police, immigration law, the legality of postering and other useful information. Clayton C. Ruby, "Obstructing a Police Officer" (1972-3) 15 Criminal Law Quarterly, 375. Further Reading 149 W.S. Tarnopolsky, The Canadian Bill of Rights, 2nd ed. (Toronto, McClelland and Stewart, 1975) Carleton Library edition. Chapter 9: Conspiracy John G. Fleming, The Law of Torts, 5th ed. (Melbourne, The Law Book Co, Ltd., 1977). See pp. 676-684, 689-694. R.F.V. Heuston, ed., Salmondon Torts, 17th ed. (London, Sweet and Maxwell, 1977). Chapter 10: Defamation Fleming, The Law of Torts, 5th ed. (Melbourne, The Law Book Com- pany, 1977). See pp. 516-589. Gatley on Libel and Slander, 7th ed. (London, Sweet and Maxwell, 1974). R.F.V. Heuston, ed., Salmondon Torts, 17th ed. (London, Sweet and Maxwell, 1977). See pp. 138-192. W.H. Kesterton, The Law and the Press in Canada (Toronto, Mac- millan, 1976) Carleton Library edition. Williams, The Law of Defamation (Toronto, Butterworths, 1976). Chapter 11: Charitable Status Anonymous, "The Sierra Club, Political Activity and Tax Exempt Charitable Status," 55 Georgetown Law Journal 1128 (1967). J.C. Brady, "The Law of Charity and Judicial Responsiveness to Changing Social Needs," 27 Northern Ireland Legal Quarterly 198 (1976). Maurice C. Cullity, "Charities—the Incidental Question," 6 Mel- bourne University Law Review 35 (1967). Arthur B.C. Drache, "Political Activities: A Charitable Dilemma," The Philanthropist, vol. 2, no. 4, Fall, 1980. William J. Lehrfeld, "How Much Politicking Can a Charitable Organization Engage In?" The Journal of Taxation, October, 1968 at p. 236. 150 How to Fight for What's Right L.A. Sheridan, "Charitable Causes, Political Causes and Involve- ment," The Philanthropist, vol.2, no. 4, Fall, 1980. L.A. Sheridan, "The Charpol Family Quiz," The Philanthropist, vol. 2 no. 1, Spring, 1977. Also from James Lorimer & Company in the Citizens and the Environment Series Poisons in Public Ross Howard Poisons in Public, by Toronto journalist Ross Howard, was the first title in a series of books published by James Lorimer & Company in association with the Canadian Environmental Law Research Founda- tion. Ross Howard details four cases of environmental pollution in Canada, focusing on the workings of the political process and on the role of government in responding to pressures from business and environ- mental groups. "Howard presents his case clearly, providing numerous examples of injustices experienced by the ordinary citizen as a result of negligence by industry and of red tape and buck-passing by provincial and federal authorities. . . . The book will be of interest to any reader concerned with keeping Canada's air, soil and water free from chemical contam- ination." — The Royal Canadian Geographical Society. "An intelligent indictment of this country's failure to develop an en- vironmental protection policy that actually protects anyone or anything other than the profits of polluters." — Harrowsmith. "Accurate and well-researched reporting." — The Whig-Standard. "A harsh but real picture of the dark side of chemicals . . . Poisons in Public is recommended reading for Canadians." — Vancouver Province.