Bad reviews

SCC looks at "secret" trials. Plus, suing your clients and getting jailed just for lawyering.

Hearsay

Today’s edition is this week’s only newsletter, on account of my leading role in an upcoming wedding. Catch you next week.

— Dylan Gibbs

with Michel Hajjar

TODAY'S DOCKET

  • Setting the shrouded record straight

  • Jailing a lawyer for contempt

  • Suing clients for bad reviews

  • Hong Kong retirements, vaccinated juries, and restrictive covenants

COURT ACCESS

SCC clears up secret trials in-camera proceedings

Dark and secretive courtroom

If you expected the Supreme Court to rally against Quebec's "secret trial", Friday's decision probably came as a surprise. It turns out, there was no secret trial:

[The Court of Appeal used] the erroneous expression “secret trial”, which was repeated by the news media in a great many articles and stories. [N]othing of the sort occurred.

Here’s what the Supreme Court’s latest decision tells us about open courts.

Recap: Quebec prosecutors charged a confidential informer with crimes the informer disclosed while assisting police. The informer argued the charges were an abuse of process. And that’s when things went dark.

The trial judge kept the proceedings confidential to protect the informer’s identity. As the Court of Appeal put it:

[N]o official number appears on the trial judge’s lengthy judgment, the witnesses were examined out of court, the parties asked the judge to decide on the basis of transcripts in a secret hearing, and the judgment was kept secret. In sum, no trace of this trial exists, except in the memories of the individuals involved.

2022 QCCA 406 at para 11

The trial judge sided with the Crown, rejecting the informer’s abuse of process argument and entering a conviction. The Court of Appeal overturned that result, but the outcome was less noteworthy than the Court’s sharp criticism of what it called a “secret trial”.

The criticism led to media involvement, which led to the Supreme Court taking a closer look at the trial judge’s confidentiality measures.

There’s no such thing as a secret trial: The Supreme Court’s gripe with the Court of Appeal was that the trial started as a public proceeding, leaving at least a trace of its existence. And there was no choice but to proceed in camera after the accused claimed to be a confidential informer. The Court said it’s “needlessly alarming” to call in camera proceedings secret trials.

Meme of scene Beckham documentary. Woman: "It was a secret trial” Man: “Be honest”. Woman: “I am being honest” Man: “Secret trials don’t exist” Woman: “The trial went in camera, stopped appearing on the docket, and was fully sealed” Man: “Thank you”

Word choice aside, the Supreme Court didn’t support extreme confidentiality measures any more than the Court of Appeal. Even though confidential informer proceedings take place in camera:

  • A court should always list proceedings on its docket.

  • It should always publish its decisions.

  • And it should usually publish reasons for its decisions (redacted if necessary).

[T]he judge mistakenly thought [they had to] completely conceal the existence of any in camera hearing related to [the informer’s] status as a police informer and of any decision rendered as a result…

[E]ven in the most confidential of cases, it is possible — and we would go so far as to say essential — to protect the informer’s anonymity while still favouring confidentiality orders that do not entirely or indefinitely keep the existence of a hearing or judgment from the public.

But how? The trial judge didn’t list the in camera proceedings on the court’s docket because it would have linked those proceedings to the public charges against the informer, revealing their identity. The Supreme Court suggested courts solve this issue by creating two separate files for confidential informer cases: one for the initial public trial, and a second after the informer raises their privileged status.

[T]he creation of a parallel proceeding makes it possible to disclose, at a minimum, the existence of the in camera hearing and of any decision rendered as a result. The public can learn of their existence through the court’s docket or hearing roll and, in appropriate circumstances, through notice that a sealed judgment has been delivered.

Big picture: The Court kept the law mostly unchanged. The media asked for public notice anytime courts consider restricting access to protect an informant, but the Supreme Court disagreed with that approach. The interests of justice typically require public notice before a court restricts access, but courts have discretion to decide what’s best in each case.

HEARSAY ROUNDUP

Canadiana

🇭🇰 Former Chief Justice Beverley McLachlin is retiring from the Hong Kong Court of Final Appeal. Don’t get it twisted—it’s not because Hong Kong is threatening civil liberties and judicial independence. It’s more of an 80th birthday celebration.

😷 “Excluding unvaccinated people from jury selection has no impact on the impartiality or representativeness of the jury,” according to the Alberta Court of Appeal.

🛒 The Competition Bureau is investigating the parent companies of Sobeys and Loblaws over their use of restrictive covenants. The concern is that the companies’ property controls suppress competition from less established grocers.

Beyond the border

🤐 Rapper Young Thug’s murder trial went off the rails this week. The presiding judge met privately with state attorneys and a state witness. Everyone seems to agree that was improper, but Judge Ural Glanville still held defence counsel Brian Steel in contempt for refusing to share how he discovered the meeting. He ordered Steel to serve 10 weekends in jail.

  • Steel put himself in the running for lawyer of the decade when he asked to serve his sentence in the same jail as his client, so he could keep working on the case.

PRACTICE

Suing clients for bad reviews

Man in suit looks a bad rating on phone

What happens when a lawyer threatens to sue a client over a bad review? In one case, a reprimand. In another, a $20,000 defamation judgment. Is there a clear line between vindicating your reputation and begging for a law society complaint?

Asking for trouble: Lior Samfiru ended up on the disciplinary end of the spectrum. Not because he threatened proceedings. And not because he sued. But because he threatened completely disproportionate lawsuits with language that was... less than becoming:

I will make it very simple for you. Unless this review is deleted by 5pm today, we will be suing you for defamation.

You will have to hire a lawyer and go through thousands of dollars in fees.

Please sue this lady for defamation for $500,000 and arrange service ASAP.

Email excerpts, reported by CBC

Middle ground: Suing over trifling reviews might not get you disciplined, but it doesn’t leave the best impression either. In 2018, a BC judge awarded $1 over a review that—at best—was only mildly defamatory. According to the Court, reasonable readers would have ignored the bad review because of the author’s creative approach to grammar and spelling:

I spent nearly $2000 for kyla lee to lose a case for me that they seemed they didnt put any effort into. Anywhere else would be moore helpful.worstest lawyer.would not recommend

Acumen Law v. Nguyen, 2018 BCSC 961 at para 3

The judge said the lawyer shouldn’t have sued over such a poorly written review. And she used the $1 damage award to express her disapproval.

Vindication: D’Alessio Romero sued for defamation over a review that packed more of a punch:

If you want an incompetent lawyer and paralegal posing as a lawyer handling your case then feel free to use this firm… They were highly negligent with my cases… This firm refuses to transfer our files, deliberately causing delays and wont even let us review their nonsense billing. They are highly unprofessional and disorganized. They are not trustworthy … You are shady, pathetic and awful lawyer.

D’Alessio v. Chowdhury, 2023 ONSC 6075 at para 7

An Ontario judge found the review defamatory, awarding $20,000 plus costs. But the self-represented client didn’t put up much of a fight, failing to even plead a defence. And the firm’s response to the bad review suggests there’s at least a chance this case could have played out the same way it did for Samfiru:

The law firm will vigorously prosecute a $3,000,000 libel law suit against you within the next 3 months and expedite the litigation to obtain an early and substantial award for losses and damages.

Where does that leave us? If you can’t get a bad review taken down without grossly exaggerated threats—it’s best to just let it slide.

As the adage goes, you can’t please everyone all the time.

[A] lawyer must exercise restraint when it comes to launching legal action when they receive a review that displeases them. It takes little for them to commence a lawsuit as they are familiar with the law and can represent themselves. Defendants on the other hand are often not so fortunate.

Acumen Law v. Nguyen, 2018 BCSC 961 at paras 33-34
Meercat in medidative pose with caption "Namaste"

WRITING TIP 📝

Preach.

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

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