Apologies Without Fault are Totally Legit

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How do you get a Canadian to apologise? Kick them.

It’s a stereotype that Seppos love to trot out in derision (although light-hearted) of their northern neighbours; Canadians love apologising.

If I can be so bold as to speak for the rest of the world, the jokes about Canadian apologising are tired. Most people value the civility of an apology and its role as a social lubricant. I’d certainly much rather reside in a society that apologises too much as opposed to the stereotyped American individualistic approach, which can crudely be summarised as telling people who cross you to self-fornicate.

Imwalkinghere

Most Canadian Law Ever

There was significant coverage and again light-hearted derision when the Ontario legislature passed the Apology Act in 2009. It seemed so perfectly colloquially and quaintly Canadian. “Canadians love to say sorry so much we had to make this law”.

The act was passed to deal with an uptick in civil cases in their courts that were decided on apparent admissions of liability relating to apologies offered at the time of the incident. This is not a unique problem for Canada, as I’ll deal with shortly, but it did strike a particular cultural nerve. Punishing people for apologising when they may not have been liable was a threat to the entire Canadian way of life. There was a fear, as there is constantly in Australia, that they were overly legalising our everyday interactions and becoming too “American”; shorthand for litigious.

Sueeveryone

The act did not apply universally and the largest exception is for apologies made in the course of the proceedings. The act was designed to operate more to protect members of the public from accidentally admitting liability in instances where they were not aware of the possible interpretation of their chosen words. It should be noted that most other Canadian jurisdictions have similar laws, as do many other parts of the world.

Section 1) “apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.

Ontario made it safe to continue apologising to everyone in most circumstances regardless of whether they’ve just hit your dog or if you’ve just merked them in ice hockey…again.

sorrysorry

 

Apologising: The Australian Way

The ACT has had laws in place via the Civil Law (Wrongs) Act 2002 (ACT) which have the effect of preventing apologies being construed as admissions of liability. NSW passed similar legislation around this same time but the two remained the outliers in Australia for adopting this approach. ACT and NSW were mostly addressing policy concerns relating to apparent admissions made by insured people that may later affect the rights of their insurer to recover, as opposed to some deep-seated cultural crisis.

Effect of apology on liability etc

(1)     An apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person—

(a)     is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and

(b)     is not relevant to deciding fault or liability in relation to the incident.

(2)     Evidence of an apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the incident.

In Hutchison v Fitzpatrick [2009] ACad TSC 43, two Rugby spectators and old friends had a barney and the one who came off a bit better had refused to visit the other in hospital or apologise on the advice of his solicitors. Master Harper expressed regret at this advice:

 the defendant would not have been placing himself at risk by visiting the plaintiff or proffering an apology to him. If solicitors are still advising their clients not to apologise and not to visit or telephone or write to people who might sue them … this would be regrettable.

Sorry, not sorry.

Outside of the legislative approach, the common law has always distinguished between apologies, admissions of guilt and admissions of fact.

As noted above, many of the Australian cases that concern apologies are in the insurance realm. Most insurance contracts have a clause that can leave a person unprotected if they make an apology or admission of liability (Terry v Trafalgar Insurance [1970] 1 Lloyd’s Rep 524). Legislation that dictates that an apology does not constitute an admission goes a long way to dealing with these problems.

The High Court has restricted the impact of apologies, affecting all jurisdictions whether they pass legislation or not. In the 2003 case of Dovuro Pty Ltd v Wilkins, canola farmers claimed a loss caused by the supply of contaminated seeds. The supply company issued a media release that contained an apology prior to any litigation. The media release and a further follow-up letter made full apologies expressing regret and also admitting that the company “failed in its duty of care“. Now, why a sophisticated client (company) made such a legally dangerous series of statements is bewildering, but so it goes. The company would have been protected under the ACT and NSW legislation regardless, but elsewhere it would depend on the circumstances of each case.

The High Court (save for Kirby J…of course) agreed with the position that admissions that include legal conclusions cannot have the effect of creating liability for negligence if it did not otherwise exist.

…[c]are that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made…The statement that the appellant “failed in its duty of care” cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct.

The Importance of Apologies

In 2014, the Australian Law Reform Commission (ALRC) recommended that all jurisdictions across Australia should amend their laws so that apologies are not considered to be admissions of guilt.

The ALRC went further than the Ontario analysis and emphasised several other positive benefits from preventing admissions from being construed as admissions of guilt. There were benefits identified for not only the minimisation of litigation and therefore reduction of stress on the courts but also the personal well-being of those who perceive themselves as having been wronged.

In defamation and breaches of privacy, an apology may have a particularly beneficial effect on the well-being of “victims”. The Telecommunications Ombudsman submitted to the ALRC that they find apologies can:

  • diffuse tension and create common ground between opposing parties
  • foster constructive discussion and even conciliation between parties
  • alleviate injury and distress caused to aggrieved parties, and
  • reduce the length and severity of disputes.

The ALRC further found that in medical negligence cases, apologies (not court-ordered apologies), can have psychological benefits to plaintiffs.

Codicil

The ACT seems to have hit the right balance.

All empirical analyses seem to confirm that limiting liability from apologies has a wide range of benefits in both a legal and societal context. Associate Professor Prue Vines from Sydney Uni, perfectly summed up the dilemma in the title of her article on this issue (without dismissing the value of the body of her article); apologies in a legal context could be “Cynical Civility or Practical Morality“.  As Prof Vines concludes, differentiating between genuine apologies and cynical gambits to limit liability ignores that only the genuine apology gets punished if we remove the protection. As La Rochefoucauld said: “hypocrisy is a tribute vice pays to virtue.” I’d rather live in a society where apologies are offered too often instead of too infrequently, regardless of the intent.

 

I Want A Reasonable Police Officer Dawg

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Common sense is supposed to reign in the law, but so often it doesn’t, especially when the desired pre-conceived outcome disagrees with common sense.

The United States has a little thing called the 6th Amendment:

VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similar protections for due process are also present under the 5th amendment.

A few hundred years of jurisprudence have qualified these rights into certain protections and processes that law enforcement and the courts are required to apply to ensure the constitutional rights of an accused are complied with.

For example: In a police interview, when a suspect requests a lawyer, the interview must end until a lawyer is supplied. If the police continue to question, they have breached the suspect’s rights under the 6th amendment and risk the admissibility of evidence. (Edwards v Arizona)

Sometimes the request is ambiguous and sometimes it isn’t but the Police think that a lawyer may get in the way of a conviction (they’re known for doing that).

This is not what’s up.

Warren Demesme voluntarily agreed to have a chat with the police at an interview down at the station. During the interview, Desmesme realised that he was being questioned as a suspect in the sexual assault of a child and promptly requested a lawyer. Or did he? Kindly parse the following sentence:

“I know that I didn’t do it, so why don’t you just give me a lawyer dawg ‘cause this is not what’s up.

Desmesme sought to have the evidence from the interview excluded at his trial. This was denied and he was convicted based on that evidence. Desmesme appealed on the basis that his 5th and 6th amendment rights were violated. The appeal was denied. Desmesme appealed again, to the Louisiana Supreme Court. The Louisiana Supreme Court denied to take the case but Justice Scott Crichton did pen an opinion explaining the Court’s refusal. The problem apparently originated from the trial court’s transcript, which recorded “lawyer dog” instead of “lawyer dawg“. Crichton J, completely unironically, wrote:

“the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

Perhaps if the transcriber had used a comma, the Louisiana Courts would have recognised asking for a “lawyer, dog” not a “lawyer dog”, whatever that is, but even that’s just unrequired sympathy for Chrichton J’s position. Desmesme was clearly speaking plainly, albeit colloquially, and transcription notwithstanding, there was no real ambiguity to actually resolve. By penning his brain vomit, Crichton J probably created enough reason to have the decision overturned in the US Supreme Court, should they agree to accept the petition.

Lead-4

In Davis v United States, Willie Davis was stopped during a traffic stop and the police found an illegal weapon in the car. Davis requested a lawyer, one wasn’t provided, the interview continued and Davis made incriminating statements. The Supreme Court held that if a suspect’s request:

“is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him…[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”

The test is therefore whether a reasonable police officer in the circumstances would have understood the request.

The test of the reasonable person or, in this case, the reasonable police officer can always be manipulated. The Lousiana Supreme Court would probably be better legally placed if they had given no reasons at all instead of diving deep into a diatribe explaining the differences between “lawyer dog” and “lawyer dawg”. But perhaps Demesme should have more clearly articulated who he wanted as his lead counsel…get it? (I almost made it without a single terrible gag).

What if it had been a confession instead of a request? For example, if the accused had said “I touched that child dawg“. Would Louisiana have inserted the same ambiguity? “Well, I’m not sure what a “child-dog” is, so it’s not a confession”. That probably wouldn’t have been reasonable.

Slants and Pommiebashers – Trademarking Slurs in Australia and US

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Early last week the US Patent and Trademark Office registered a trademark for a band called “The Slants” six years to the day after it was applied for.

The Asian-American band from Washington state attempted to trademark their name but was refused on the basis that it was offensive. The Government argued that even though they have no right to limit private speech, registering a trademark is government speech so they can regulate their own speech within breaching the first amendment.

The Supreme Court in Matel v Tam unanimously decided along classic first amendment lines that even though the policy did not “play favorites”, limiting any speech was not permissible and that trademarks are an expression of private speech.

Our cases use the term “viewpoint” discrimination in a broad sense, and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.

We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”)

The decision makes it unlikely that other trademarks that may be considered “offensive” will not likely face the chopping block anytime soon; well-known recent examples such as the Washington Redskins.

Redskins

 

Australian Perspectives – Nucking Futs

Australian Intellectual Property law is not quite so lenient. There are the protections under s 18C of the Racial Discrimination Act 1975 (Cth) to make unlawful any act if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

But as best as I could tell this has never been applied to prevent registration of a patent or trademark. Instead, we have s 42(a) of the Trade Marks Act 1995 (Cth), which states that a trademark application will be rejected if “the trade mark contains or consists of scandalous matter“. “Scandalous” is not defined in the act or the associated regulations.

The Australian Trade Marks Office will determine, on a case-by-case basis, guided by:

  • the actual words or images applied for;
  • the intended market for the relevant goods and services; and
  • the level of acceptance of the terms within the general population.

Overt imagery or words will be considered scandalous but mere suggestion will not be sufficient. Words or images that are too similar to offensive content will also be scandalous.

  • Nucking Futs = Acceptable
  • Pommiebasher = Acceptable
  • Farkoff = Acceptable
  • Cunce = Acceptable
  • Kunt = Unacceptable

Out of these three, “Pommiebasher” was the most controversial as the trademark office considered whether the term was a form of racial vilification. Eventually, they decided that the term was “ordinary and acceptable, if colourful and colloquial, language”.

It may surprise many to know that Australians have no explicit right to free speech. Scandalous may be a high threshold but it errs on the side of allowing speech (trademarks) that may be crude or in poor taste but stops short of anything that is a bit too far beyond the pale.