What the Central Park 5 Can Teach Us All About Police Questioning: Why Exercising the Right to Remain Silent is in Your Best Interests

Netflix sometimes teaches us things beyond the fact that you can now get a whole lot of quality viewing for not much money every month. The popular When They See Us show about the Central Park Five teaches us that, given the right circumstances, people will tell the police what they want to hear, and you’re never doing yourself any favours in doing so.

In my 24 years involved in criminal law, I’ve never come across anything in Canada like the Central Park Five false confession confession convictions, and I hope I never do. But make no mistake that there is a lot police officers can do in Canada that is completely lawful to get you to talk.

The police certainly might tell you that if you just tell the truth, you can go home. That’s essentially what the Central Park Five were told.

The police also might suggest to you what the truth is, and ask you to agree. Again, that’s what happened to the Central Park Five.

No one can beat you. No one can deny you medical care. No one can deny you food and water. But when it comes to how much questioning is too much, there can be judicial disagreement.

Now you might be wondering: “If I just say I didn’t do it, isn’t that going to help me?” In short, no.

Nothing wrong with identifying who you are to the police. They might not let you go until you do that, and there is some conflicting caselaw out there saying you might have a positive duty to identify yourself. But that’s about it.

You have no duty to help the police on criminal matters, except in some very, very limited circumstances like providing information under the Automobile Insurance Act about an accident. If in doubt, ask if you’re required to answer.

Most people seem to believe they have a legal (or at least moral) duty to help the police by telling all, even if they are the ones facing criminal jeopardy. Or at least they think that by telling the police a long convoluted story that they might have trouble keeping straight - as true as it might be - they are doing themselves a favour. They couldn’t be more wrong.

Why You Need to Resist the Urge to Talk

I find almost all people - regardless of levels of education - have an urge to talk at length to the police, even if it’s just to deny everything. They all seem blind to the fact that those denials can later be handily used against them. They’ll do things like:

1. pin themselves down in one location at the time of the offence;

2. identify the people they were and weren’t with at the time of the offence;

3. offer justifications as to why they couldn’t possibly have done anything wrong;

4. voluntarily produce documentary evidence - like an entire lifetime on a cell phone;

5. identify other people for the police to talk to - including speculating that they may have “done it”;

6. voluntarily offer to provide blood samples, or take lie detector tests, or accompany the police to particular locations;

7. voluntarily offer to permit the police to search a vehicle or a residence.

You’ve got to realize, that by producing negatives, you’re really offering positives which you can later be tripped up on. Even if you’re completely innocent, those trip ups can make you look guilty.

Why You Effectively Have No Right to Silence if You Feel Obliged to Talk

The key point is that everyone has a fundamental rights to remain silent under the Canadian Charter of Rights and Freedoms. It’s not especially different from the Central Park Five’s “Miranda Rights” as they’re often called in the US after a famous case. But if you’re not exercising that right in an informed way, then you’ve really got no right at all.

Thus everyone needs to be absolutely certain that speaking to the police is a choice, not a duty. They also need to know that in questioning suspects, the police will employ various techniques to encourage a voluntary spilling of the beans, including potentially lying to you. The police can’t coerce you. Your statement needs to be voluntary, meaning its free of threats, promises or an atmosphere of oppression. But there can often be a fine line - and disagreement among judges - over how the police can encourage statements.

Unlike in the United Kingdom, but exactly like we saw with the Central Park Five, recordings don’t start the moment witnesses enter police interview rooms in Canada. Likewise the police mostly don’t wear body cameras in Canada. So various things can be said to you by police prior to any recording being started, just like in the Central Park Five. You shouldn’t let those things influence your willingness to give a statement.

Why This Post is Police Positive

I don’t make the rules. It was Parliament in the Constitution Act, 1982 which decided to constitutionally entrench the right to silence under Canadian law.

In part of my practice, I actually do a lot of work with law enforcement officers, including prosecuting cases, as well as representing them on administrative matters. So long as they obey the law, I’ve got nothing to criticize about their techniques in getting people to talk as part of an investigation. It’s their job to get you to talk. Some are quite good at it.

My stressing potential Canadian parallels to the Central Park Five is only meant to underline that you could effectively wind up in their situation even without being a youth and without the police impropriety involved in that case just by an officer lawfully continually asking you the same questions, and you feeling like you should be helpful, because that is likely the best way to enable you to go home.

Avoid Turning a Witness Interview Into a Target Interview

If it’s very clear to you - and you clearly ask police - that you are only a witness, and not a subject of investigation, you might be tempted to speak to them. There’s nothing wrong with assisting the course of justice so long as you’re not going to pay for providing that help. But before doing so, you absolutely need legal advice, since you’ll recall that the Central Park Five were initially told they were only being spoken to as witnesses, not as targets of investigation.

Like the Central Park Five, everyone just wants to go home. They hope that by talking, the police will believe every word they say, and give them that coveted get out of jail free card. They fail to appreciate that the police can lawfully withhold information from them, and even lawfully lie to them in order to adduce information.

Identify yourself, call a lawyer, and wait for the questioning to end. It lawfully could take a while. The police are just doing their jobs.

Gordon S. Campbell practices criminal, civil and family trial and appellate litigation throughout Ontario. He’s author of The Investigator’s Legal Handbook (Carswell 2006, 2014; Yvon Blais 2010) series of books and has appeared on precedent setting cases up to the level of the Supreme Court of Canada.

How to Apply for Leave to Appeal to the Supreme Court of Canada: Top 5 Tips for a Winning Public Importance Pitch

The Supreme Court of Canada is truly every litigant’s last kick at the proverbial can. You may have fought the good fight and won at trial, only to lose before a provincial appellate court. Or you might might have lost in every court, but believe your case is worth one last shot. The Supremes have the last judicial word word as the highest court in Canada.

But you don’t have a right to go to the SCC in almost all but a few very narrow situations. You’ve got to ask for permission, known as seeking leave to appeal. Only about 1 in 10 cases that seek leave are granted it. Here are my top 5 tips to maximize your chances of grasping that golden leave ring.

1. Be on Time With Serving and Filing for Leave to Appeal

You’ve only got 60 days from the date of the judgment you’re seeking leave to appeal on to serve and file a complete leave to appeal application with the Supreme Court of Canada. We’re not talking just a flimsy notice here, but rather filing the entire package (which is why they’re giving you 60 days, rather than the more common 30 days to file a notice of appeal).

Far better a so-so leave to appeal application record filed on time, than a perfect application filed late. Courts hate extending statutory limitation period filing deadlines. If you miss the 60 day limitation, you’re probably dead, even though technically you can ask for an extension.

2. Understand Limits of S. 40 Supreme Court Act Jurisdiction

Only judgments from the highest court of any province, or the Federal Court of Appeal, can usually be subject to a Supreme Court of Canada leave application. There are a few rare exceptions to this, but generally you need to have exhausted all possible appeals in the provincial or federal courts system before petitioning the Supremes.

However, importantly you don’t need a “final” judgment on which to seek leave. An interlocutory temporary order could be just as much the subject of a leave to appeal application.

3. Know How to Sell the “Public Importance” Test

The Supremes don’t care if you’ve been wronged by a court of appeal. They don’t care if a court of appeal erred in law. They’re already perhaps the busiest court of last resort in the Commonwealth. They don’t need any more work.

So Parliament set out in s. 40 of the Supreme Court Act that they should only take on appeals where “the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or mixed fact and law involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it….”

What this means in practice is that you’ve got to sell the ramifications of your case, and the appellate judgment concerning it that you want to overturn, as extending way beyond your personal facts. Ideally, you want to sell it as being so publicly important, that it’s of national importance, though “national” isn’t an official requirement.

4. Why is This the Right Issue, on the Right Record, at the Right Time

Veteran of the Supremes Mr. Justice Cromwell suggested in a seminar selling the Court on why this is the right issue, on the right record, at the right time, in order to best convince them why they should give you leave.

The right issue point is selling public importance. But his point was that’s only a third of the test, which also requires you to persuade that the record is right, meaning that the facts aren’t a total mess, or completely absent, such that the Court would be able to come to a sensible legal decision based on a full coherent factual record, rather than waiting for a similar case to come along that perhaps has clearer facts.

His last point of the “right time” at least in part revolves around when the Court might have last considered the issue (if ever), whether Parliament has or is considering the issue by way of legislative solution, and whether the appellate courts of the provinces have sufficiently considered the issue so as to have evolved into a contradictory jurisprudential patchwork that requires clarification.

5. You Must Use an Ottawa Agent

Courts can be a little traditional in their practices. The Supreme Court of Canada was established in days of horse and buggy, where getting materials out of Montreal, or Toronto, or even Vancouver to be filed with the Court could be quite an ordeal. And just like courts today, there was a good chance that once your materials did land on the desk of the Court Registrar, some technical thing was going to be found wrong with them.

Technical deficiencies in court materials can have really simple, one hour, swap out a document for another document types of fixes, but not if your horse and buggy - or rail car - needed to travel back to Montreal, Toronto or Vancouver to make the fix. Plus the SCC rules are quite unique as compared to the rules of any other court, meaning you don’t want lawyers trying to interpret them who only deal with one case there every 20 years.

Section 16 of the Rules of the Supreme Court of Canada provide that “A party to an appeal or to a reference to the Court shall only conduct business with the Registrar through an agent.” Section 2 of the Rules defines “agent” as “a lawyer practicing in the National Capital Regional within the meaning of the National Capital Act.” There are a few of us local to the NCR who both conduct SCC appeals (and leave to appeal applications), as well as act as agents for out of jurisdiction lawyers.

Gordon S. Campbell serves as counsel throughout Canada on Supreme Court of Canada leave to appeal applications and appeals. He will co-counsel or act as agent for lawyers from outside the NCR dealing with the SCC. He previously served with the Constitutional Law Division of the Attorney General of Ontario and the Department of Justice Canada.

The 5 Rules for Successful Access to Information & Privacy Act Requests for Government Information in Canada

Governments know a lot of stuff. But it’s sometimes very difficult to pry any of that knowledge away from them. 

The early 1980’s marked the start of the openness era for many governments, including Canada which introduced the Access to Information Act and the Privacy Act (collectively known as ATIP) in 1983. The Privacy Act enables individuals to request personal information that the government holds about them, whereas the Access to Information Act enables anyone to request government records generally, subject to numerous exceptions. 

Canada has more recently followed the lead of other countries with “Open Data” projects that put government gathered data - often of a statistical nature - into the public domain, so that others can make use of it. Though some data remains closely guarded. And we lag behind other places in putting raw documents (or really much of anything of a timely nature) online for easy download.

For a while I served as Canada’s Director of E-Business Development. Not surprisingly, our Electronic Commerce Branch of Industry Canada had a series of website pages explaining what we did, and containing links to useful sources. In essence, we were in charge of the Internet from the Government of Canada’s perspective. Think I was able to change even one word on that website during my entire tenure as Director? Nope. 

Government putting it all out there online (even for sensitive private matters that might cause legitimate pause in Canada) is especially prevalent in the United States where the then world leading Freedom of Information Act was implemented as early as 1966. The White House even puts its legal opinions online (though by retaining private counsel this openness can be somewhat circumvented)!

So Canada’s governments (and really any governments outside the U.S.) can be a little slow at information dissemination. Governments are often more reactive, than proactive, when it comes to information sharing. But government functionaries can actually be quite helpful if you know who and how to ask for the right information that you need.

Getting a useful response to an ATIP request involves a lot more than luck. As an information and privacy lawyer, who used to work inside government on such requests and who now assists private clients in getting information out of government, here as my top 5 rules for writing winning requests. I actually call these “rules” rather than “tips” because if you ignore these points, you likely won’t be getting any useful results for your efforts.

While this post is focussed on federal Government of Canada access to information and privacy laws, its principles would apply equally to provincial government access and privacy legislation which often works in quite similar ways. 

1. Target Correct Government Department for Information

The government operates in silos. Contrary to what you might think from watching TV shows about high tech pan-government all-knowing data systems displayed on giant screens in darkened rooms - modern version’s of Kubrick’s Dr. Strangelove bunker warroom - at least for Canada government information systems are often old, creaky and not interconnected.

The government doesn’t operate in the cloud, because the government doesn’t trust the security of the cloud. But the result at least some of the time is old file servers in dusty closets and paper files of undigitized information. 

With luck, a single government department knows what information it possesses. But it definitely doesn’t know what’s in the hands of other government departments. And government departments often don’t like to share or play well together

So the first principle of good access and privacy requests is to get the department right where you think the information you want resides. If you’re not sure, make requests to multiple departments. It’s cheap fun. Depending, of course, on your idea of fun.

2. Be Precise About Subject & Date Range of Information You Need

Don’t be too general in your request for information. The easier you make the government workers’ jobs in finding you the information you want, the more information you’re likely to get.

If you want a specific record, name it. If you want records on a specific topic, be precise about that topic. Likewise be precise about the date range for records. 

The Access to Information Act defines “record” as “any documentary material, regardless of medium or format.” So asking for “records” is probably your best bet, rather than a long winded description of emails, power point presentations, briefing notes, and the like.

There is a balancing act between being too precise in your request so that you get nothing, and not being precise enough so that again you get nothing. Generally speaking it’s better to be too precise than too general.

Too precise might require you to draw back a bit and submit a second slightly more general request, but the government’s access to information coordinators can actually be quite helpful in shaping requests to make them more responsive. Give them a specific record target, and they will work with you. Give them a dump truck of information that you want, and they may not be so accommodating.

3. Ensure Right Person is Making Request for Information

Under the Privacy Act, you can only request your own information. Under the Access to Information Act, only a person or corporation inside Canada can request information. Using an authorized agent inside Canada with a Canadian address to request the information for you is fine. Just don’t try to get the government to provide information to you outside Canada or as a non-Canadian. Work with a Canadian inside Canada (like a lawyer) if you are outside Canada or a non-Canadian.

Send along a use of a representative signed authorization form if you are working with an agent or lawyer to request information for you, since the government needs official authorization to send the requested information to someone other than you. 

4. Resubmit Redrafted Request if You Don’t Get What you Need

Because of my “cheap fun” point above, unlike a legal procedure like a court action which has a huge cost to recommence from the start if it fails, and might not even legally be possible to get going again because of res judicata, nothing stops you from resubmitting variants on earlier ATIP requests. Use a different date range. Use different keywords. Think of it like a very slow Google search.

Maybe the information you’re looking for doesn’t exist. Or maybe you just didn’t ask for it in the right way.

Sending in hundreds of additional requests for information are likely to be deemed frivolous, and eventually the government will stop working with you. But a couple of additional requests, aiming at slightly different targets on the government information rifle range, might score a bullseye where your first request totally missed the mark.

5. Be Prepared to File Complaints on Exemption Claims to Information or Privacy Commissioners

Appeals of denials of information - either under access or privacy requests - can be a lot of hassle, and take a lot of time. Better first to just work with the government department in question to see if you can resolve the issue amicably. Maybe documents can be edited to give you some information, rather than sending you reams of blank sheets in response to your request.

When I was responsible for responding to one legal demand for disclosure of a voluminous government operations manual as part of a court case, I spent days blanking out page after page, or leaving in a line here and there, concerned that putting it all out there would compromise government security. I later found out the litigant had also made an Access to Information Act request outside of the court process, for the exact same material, and received about 90% more information than I was ready to release because that government department had stacks of pre-vetted “sanitized” operations manuals pre-printed just sitting in a warehouse, waiting for someone to ask for them.

So don’t assume that access to information coordinators are there to frustrate you. On the contrary, they’ll probably be way more helpful than lawyers like me would be who always tend to take conservative views of public disclosure. Access coordinators have as a primary role the promotion of the release of information, not its suppression.

But sometimes you’ll run into a wall, being told information does exist within government, but that you’re not going to get it because of one of a few notable exemptions. The most commonly cited exemptions are:

a. information obtained in confidence from another government;

b. information injurious to conduct of federal-provincial affairs;

c. information injurious to conduct of international affairs or defence;

d. law enforcement information;

e. information injurious to economic interests of Canada including contractual negotiations;

f. personal information (as defined in the Privacy Act);

g. third-party trade secrets, financial, commercial, scientific or technical information “treated consistently in a confidential manner by the third party,” or which could reasonably be expected to prejudice the competitive position of a third party or interfere with contractual or other negotiations of a third party;

h. advice, recommendations or plans for government operations;

i. solicitor-client privileged information.

Government invoking one of these exemptions to information disclosure could be quite legitimate. But the statutory language of the exemptions is very technical, thus whether they apply or not might involve nuanced judgment calls subject to arguable disagreement. 

Complaints over refusals (or unreasonable demands for production fees) may be made to either the Information Commissioner (for Access to Information Requests) or the Privacy Commissioner (for Privacy Act Requests). They both have investigative powers and the ability to make recommendations on disclosure. Court action on information denial is also possible.

Following these “rules” may not get you everything your want every time out of an access to information or privacy request, but they should at least maximize your prospects of success of getting something responsive, instead of just a stack of blank pages.

Gordon S. Campbell is an information and privacy lawyer who assists clients throughout Canada with obtaining information from all levels of government. He has served with the Department of Justice Canada, the Attorney General of Ontario, the RCMP, the Canadian Armed Forces and Global Affairs Canada, as well as litigated public law cases up to the level of the Supreme Court of Canada. Learn more at www.acmlawfirm.ca.

Fighting Online Defamation Through Court Action in Canada: Top 5 Things Victims Need to Know Before Pulling the Trigger

I’m often consulted by potential clients who have fallen victim to social media weaponsization, either through others posting online attacks against them or their being sued over sometimes pretty innocuous online  comments about others. It all involves “defamation,” the global term that includes libel and slander.

In an earlier post (Fighting Online Defamation in Canada: Top 3 Things You Can Do Without Going to Court for Combatting the Really Horrible Terrible Things People Say on the Internet) I covered what could legally be done about defamation short of going to court. But sometimes those softer measures fail, and you’re propelled into the judicial system. Here’s what I tell my potential defamation clients about the basics of what they need to know prior to ever going near a courthouse.

1. Know Your Court Jurisdiction

Every province and territory of Canada has “civil courts” which are distinct from criminal and family courts or administrative tribunals. These civil courts deal mostly with disputes between private parties involving rights of some sort: rights to monetary damages for a car crash, rights to a real property easement over a neighbour’s land, and occasionally rights to say certain things about other people. 

There are no specialized “defamation” courts in Canada; the civil courts deal with defamation actions along with 100 other types of law suits. However you’ll often have a choice between proceeding in a Small Claims Court or in the Superior Court for defamation. How do you choose?

Small Claims courts are usually limited to awarding smaller amounts of money or the return of less valuable property. They can’t so anything else. The money limit in Ontario is $25,000. Alberta’s limit is a little higher, in other provinces it may be lower.

If you’re willing to settle for less money - and in defamation it can be a real struggle to get much - Small Claims can save you huge amounts of time, hassle and money in pursuing your case. I usually tell my clients Small Claims could be more than 80 percent cheaper than Superior Court!

But you’ll need the jurisdiction of Superior Court for one of three reasons:

  1. you’re going after a lot of money (the record award in Canada is $1.6 million in Hill v Church of Scientology);

  2. you need an order extending beyond money, like an order for a defendant to stop posting defamatory comments or to take down comments already posted;

  3. provincial legislation prohibits defamation suits in Small Claims (for example Manitoba), perhaps in a misguided attempt to stop frivolous claims but resulting in massively pushing up defamation litigation costs for everyone.

You’ll also need to verify the territorial jurisdiction of the court you proceed in, meaning that it’s willing to take on your case because there is a substantial link with the offending conduct, the defendant or the plaintiff in that territory (online territorial jurisdiction can get very complicated).

2. Know What You’re Likely to Get Out of Court

Regardless of whether you’re the plaintiff or defendant, you should know the odds of defamation court outcomes before you ever set foot in court, because they’ll drive whether you should start or settle a defamation suit. 

The most common thing to ask for in court is money (and if you’re in Small Claims it’s probably all you can ask for). But how much should you ask for if you’re the plaintiff? And how much is at risk if you’re the defendant? 

For Small Claims, it’s often not a bad strategy to ask for the maximum limit which usually is not more than $25,000 (though there’s talk of bumping that to $50,000). You might not get it, but it’s not a ridiculous amount to demand for defamation.

As a defendant, if you’re dragged into Small Claims you can at least be confident that you won’t get hit with anything more than the maximum of the court’s monetary damages limit. And even having legal fees awarded against you as costs at Small Claims can be quite modest - in Ontario, costs are capped at a maximum of 15% of the total amount claimed.

As plaintiff or defendant if you’re in Superior Court the sky’s the limit on money claims. But to get your lawsuit taken seriously, asking for amounts like $200 million that are hundreds of times more than have ever been awarded by any Canadian court for defamation will just make your claim look silly.

Really, you’ve got to base your claimed damages on “loss” which breaks down into economic losses, damages to reputation, and maybe a little aggravated and punitive damages. How much this amounts to really depends on who you are, and how outrageous the defamatory conduct was. While $1.6 million may have been the record defamation award in Canada (Hill v. Church of Scientology - be aware that the legal costs of fighting this case up to the Supreme Court of Canada were huge), $25,000 or even $10,000 is more common.

If your primary goal is to “just make it stop” - especially if the defendant could be judgment proof, meaning no matter how much money is awarded against him/her you won’t find any assets to collect your judgment from - you’ll need to weigh the deterrence value of being sued just for money (even in Small Claims) versus going to a court that can truly issue an order for it all to stop, and even jail defendants who repeatedly breach court orders. Although getting a lot of money out of defamation can be tough, simply getting an order for it to stop could in fact be much easier (though you’ll be spending more to get that result because you’ll need to be in Superior Court).

3. Know How Much Court is Going to Cost You

If you want to try doing it yourself or hire a lawyer on the relative cheap to help you, stick to Small Claims. Filing fees are cheap, exposure to costs are relatively low, and even full lawyer service should run you no more than $3000 to $9000 (depending on how far down the road to trial you get, though a very drawn out trial could certainly cost more). 

The reason lawyer bills so run up in court cases is because of the amount of time going to court burns. When you hire a lawyer to help you with your real estate purchase or will drafting, all you are usually paying for is a few hours of time. For court, lawyer time is measured in days and even weeks.

There are a lot of documents lawyers need to carefully draft for court, the evidence must be carefully studied and organized, witnesses must be prepared, settlement negotiations must be conducted, and court appearances made for settlement conferences, motions, trials and appeals. Online dispute resolution for very low value claims is being experimented with in British Columbia at the Civil Resolution Tribunal, but for the most part the court process of lawyers making multiple appearances at local court houses hasn’t changed much since Charles Dickens’ time.

For Superior Court, all that lawyer time could mean you risk spending more on legal fees than you might recover in damages. The same goes for defendants: even winning at trial will be a loss if you’ve spent too much on lawyers that you can’t fully recover in costs from the other party.

What kind of fees are we talking for Superior Court? Many lawyers will ask for an opening retainer of $10,000, and you’ll be lucky to finish documentary and oral discoveries at under $25,000. Currently the average cost to run a full blown civil action to trial in the Ottawa area (which is neither the cheapest nor most expensive area in the country for lawyers) is about $100,000, assuming there are several (but not a ridiculous number) of trial days.

Yes, many cases settle far short of a full blown trial. But you can’t bet on your case being one of them So both plaintiffs and defendants need to carefully assess is it worth it - meaning bitterly contested fights in court rather than some kind of out of court solution - at an early stage. Remember, the problem here isn’t the hourly cost of a lawyer, it’s the number of lawyer hours burned by protracted court proceedings.

4. Consider Saving Money with a Superior Court Application Rather Than an Action

The civil procedure rules of many jurisdictions permit “Applications” as alternatives to “Actions.” Applications are a lot more like motions than full blown trials because they usually rely mostly on written evidence through affidavits with attached exhibits, and skip the drawn out discovery process completely.

An Application is going to cost you more than Small Claims, but the end cost could nonetheless wind up as a fraction of an Action’s costs. How much less? Try $15,000 to $30,000 total for an Application to final judgment, so somewhere between 1/6th and 1/3rd of the price of a Superior Court action.

The downside to Applications is you can’t ask the court for monetary damages. But you can get an injunction to stop offensive defamatory conduct. And can claim legal costs.

Since I always warn my clients about how much a hassle it can be to collect from a defendant for any level of damages award, everyone should give the Superior Court Application serious thought in defamation situations. It might not cost too much more than Small Claims, but you really will need to retain a lawyer for it due to its complexity.

5. Perfect all Your Evidence Before You Pull the Trigger

I’ve seen many plaintiffs rush off to court without having carefully pinned down every last piece of possible evidence. They figure it’s up to the court to later sort out what might be very muddled or thin evidence, and that the strength of their legal arguments alone will carry the day. They couldn’t be more wrong.

You need every email, every social media message, every written note, and a statement from every potential witness long before you venture into court. Only with that evidence can you and your lawyer figure out the odds of winning.

If it sounds like I’m telling you to act like a homicide police squad, that’s exactly what I’m advising. Except you won’t have any coercive powers to gather evidence, so everything you collect must be offered voluntarily by anyone willing to help.

The court won‘t figure out your case for you. Only by presenting cogent, compelling and well organized evidence are you going to get anywhere. Cases are won on evidence, not by legal bluster.

Gordon S. Campbell is a trial and appellate civil litigation lawyer practicing throughout Ontario who has appeared on cases as high as the Supreme Court of Canada. Learn more at acmlawfirm.ca

Fighting Online Defamation in Canada: Top 3 Things You Can Do Without Going to Court for Combatting the Really Horrible Terrible Things People Say on the Internet

He’s a real ___________, his actions show him to be __________, his wife and children are _____________. He’s a _____, a ______ and definitely a ________. His morals and ethics are ________. If you’re thinking of doing business with his company __________, you should be aware of _________. Don’t believe me? I can give you lots of names of others who will back me up. I can’t tell you everything here. Send me a private message and I’ll give you the full scoop!

As posted by A(ngry)W(riter) on (pick your favourite social media).

Sound familiar?

That people say terrible, malicious, untruthful things about other people is nothing new. That they may now have an easy audience of millions rather than dozens for their spiteful attacks has only happened since the rise of online social media that lifted the rants of the misguided out of the dark corners of society.

We’ll peg the dawn of the new defamation age as 26 September 2006 - the date Facebook went fully public. 

Why’s the Internet So Nasty?

Is it just the ease of the Enter key push that makes people so damned nasty on the Internet? Or is there something deeper at work in the psyche? 

Cited a mere 2775 (!) times, an academic paper published by psychologist Dr. John Suler argues Internet disinhibition really is a thing: “The disinhibition effect can then be understood as the person shifting, while online, to an intrapsychic constellation that may be, in varying degrees, dissociated from the in-person constellation, with inhibiting guilt, anxiety, and related affects as features of the in-person self but not as part of that online self” (John Suler, “The Online Disinhibition Effect” 7 CyberPsychology and Behaviour No. 3, 2004). Even if Dr. Suler’s language is a little heavy going, his fundamental conclusion that people really do let it all out online has profound implications for just how nasty, abusive, and hateful some commentary can get. 

How are Defamation, Libel and Slander Defined?

The definition of defamation (under which both libel and slander fall) couldn’t be simpler: “A false written or oral statement that damages another’s reputation” (Black’s Law Dictionary, 10th ed). Libel involves a permanent record, whereas for slander there’s no recording. Thus the difference between the two terms in the always recorded electronic age isn’t the usually assumed to be written versus spoken message. But practically there isn’t much difference between them in terms of what can be done, since legally it’s all defamation. 

So if you run a restaurant, and someone who actually ate there leaves you a bad review about the food, that isn’t defamation. If someone who never ate there calls you a Nazi who won’t serve blacks, that’s another story. 

Top 3 Things You Can Do About Online Defamation Without Going to Court

I’m often consulted by potential clients who have fallen victim to social media weaponization - either through others posting attacks against them, or their being attacked over their sometimes pretty innocuous comments about others. Here’s my top three tips I give them on dealing with it short of going to court, derived from my own legal practice helping people with exactly these kinds of problems. 

1. Write Your Own Takedown Demand Letter to Poster & Service Providers

I find it’s hard to gauge in advance people’s reactions to being called to account in writing. Some will go down fighting to the bitter end no matter how many written demands are presented to them. But others will crumple like Kleenex, even if not admitting they’re wrong. So don’t assume the direct approach is a total waste of time. 

I’ve had entire websites taken down as a result of a single letter from me. At other times, major Internet service providers have yanked posts I objected to without blinking a cursor at my request.

Yes, a letter from a lawyer might enhance the potential for results (see action tip #2 below). But I maintain it’s more what you say than who is saying it that leads to results.

The key points are:

  • write a coherent letter to both the offensive poster and the service provider hosting the content;

  • lead by reaffirming your support for principles of free speech, and that you’ve very carefully considered the merits of the content of the offensive post prior to sending the letter;

  • explain carefully and in detail what is offensive about the post, why it goes beyond the boundaries of free speech, how it affects you personally, and why it’s their duty to take it down (get specific here, not just that you don’t like it or disagree with it);

  • explain exactly what you require to be done and by when (“require” is a good word, rather than “request” - it’s mandatory, but more polite than “demand,” nobody likes demands);

  • ask for the least possible remedy - usually just removing the post - don’t ask for an apology, or for damages, as you’re unlikely to voluntarily get anything that requires real effort;

  • politely explain the consequences of non-compliance: reporting to government, retaining legal counsel, starting a court action - don’t make hollow threats, as they’ll undercut the force of the rest of the letter, only mention things you actually have the means to do, even if you ultimately might not do them;

  • put this into a real paper letter you mail to a real address, which should be possible at least for the Internet service provider, and also email, direct message and fax the letter.

As you want to ensure the defamatory poster hears your comments, it might take some digging to find out contact details. But even if the direct approach to the poster proves fruitless, I’ve found that a paper letter directly to the service provider can work wonders, perhaps because they get so few of them. There’s usually a physical mailing address hidden deep in their “about us” pages.

2. Hire a Lawyer to Write a Takedown Demand Letter

Lawyer letters occasionally have the effect of scaring people a lot more than letters from ordinary citizens. Truth be told, they have no magical powers. And some people will just ignore them anyway. But if you have the money, they might lend more power to online defamation action tip #1 above.

I always tell my clients that lawyers can be a bargain so long as you keep them out of court. As soon as they are in court, costs can soar because of the amount of time that is burned through preparation and attendance at multiple court hearings. Letters don’t burn that kind of time. However don’t expect a lawyer to be able to knock off a powerful letter in 30 minutes, since it usually takes longer than that just to understand the issues, more time to develop a strategy, and yet more to produce polished prose which the client has been able to offer input to prior to sending.

My own online demand letters simply follow the principles I’ve already set out for you above, however lawyers are paid to write for a living so you could get a more finished and persuasive demand letter product than through the DIY route. And you’ll have the lawyer “push.”

But if you hire me to help with your written takedown demand, don’t expect me to put “DO GOVERN YOURSELF ACCORDINGLY” in bold caps at the bottom of the letter. See my article “How to Write Like a Lawyer, & Why You Never, Never, Ever Want to Do That, Even if You’re a Lawyer” for an explanation of why I don’t do that.

3. Make a Complaint to the Police

Criminal libel is actually a thing at ss. 297 to 317 of the Criminal Code. But prosecutions are rare, and parts of those sections have been struck down as unconstitutional in some provinces.

The better ground of complaint is criminal harassment, which only requires “threatening conduct,” not the specific threats of bodily harm or death which the Criminal Code charge of threats requires. Harassment remains a bit difficult to define under Canadian law, but even if the police aren’t willing to lay a charge because of uncertain evidence of intent, they might be willing to contact the poster or service provider to express your concerns. And when the police call I find people tend to pay even more attention than when a lawyer sends a letter.

So rest assured, you’ve got effective options short of going to court. I know the possibly perceived power of a court action might be appealing, but I find that once court action starts you’re less likely to get the other party to voluntarily do anything you ask. Whereas with a proper letter, I’ve seen some amazing results.

Gordon S. Campbell is a trial and appellate civil litigation lawyer practicing throughout Ontario, who has appeared on cases as high as the Supreme Court of Canada. Learn more at acmlawfirm.ca

Must I Consent to a Police Search Request? And the Uncontrollable Urge to Say "Yes"

"No." Unlike some of my what can unfortunately seem like long winded and not as definitive as clients might like answers, consent to search spawns a clear cut single word answer. At least in Canada. 

Police questioning is totally different from police searches as to whether you have a choice or not in responding. While my default advice is always “say nothing” in response to police questions, unfortunately the real world is much more nuanced than that. Sometimes you must answer police questions, depending on what they are asking about (like insurance automobile questions). And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer (though often its not a good idea to do so). But never do you have to consent to a search.

Either the Police Have a Power to Search or They Don't

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

Why Do So Many People Consent to Police Searches?

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they believe they have some kind of other authority?

The Police May Already Have Other Authority to Search Anyway

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search incident to arrest without a warrant. Again, if they do then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

All Consent Searches are Vulnerable to Challenge

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers on search and seizure, the best mantra for those officers to repeat is: "if in doubt, get a warrant." I especially teach my police students: never rely on consent, it's too uncertain of an authority, with too unpredictable later results. 

If you are the subject of a police search - by consent or otherwise - and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into.

No One Would Believe This In a Movie Script

While serving as a Federal Crown Prosecutor I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused.

The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shifting in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicle had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes (yes, there is a course on that, I've seen the materials; it might motivate all of us to tidy our vehicles). 

So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a quick look in the trunk of the car. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did? He signed, and popped the trunk!

Gordon S. Campbell practices criminal defence law throughout Ontario, with a focus on search and seizure cases which he has appeared on up to the level of the Supreme Court of Canada. He also trains law enforcement agencies throughout Canada on search warrant & wiretap drafting, and is author of The Investigator's Legal Handbook series of books.