Bullying (and legal consequences!)

Do you have a lot of great memories from high school?

 

High school can be fun. But, because of bullies, high school can also be a never-ending stream of embarrassing and frustrating ‘experiences’. And for some people, it’s much worse…

I am sure that by now, we’ve all heard of Amanda Todd, the young and tragic victim of bullying: Amanda Todd’s heart-wrenching story.

Her story isn’t even uncommon…

The 3rd leading cause of death among youths is suicide and at least half of all youth suicides are related to bullying. Suicide from bullying is so common among youths that it has been termed, “bullycide”. What a complete disgrace that it has got to this point…

Amanda Todd’s story has sparked A LOT of interest in how to use the law to stop bullying. And some of the proposed strategies are better than others.

After the tragedy, Premier Christy Clark discussed creating laws to criminalize cyber-bullying and to more severely punish the ‘bully’: Christy Clark says new laws are needed to combat bullying. Christy Clark wasn’t the only one with this idea. Here is an online petition, attempting to criminalize cyber-bullying: Petition to stop bullying.

I appreciate the good intentions in trying to create new, tough laws to stop cyber-bullying. But, quite frankly, creating new, tough laws is a very poor solution to bullying. Criminal law is a blunt tool and not the best way to deal with this social problem.

Maybe I am alone, but I have a very tough time believing that the Criminal Code or other punishing laws will be used against bullies in grade school. I can’t see Crown Prosecutors approving charges against school-yard bullies and I can’t see police officers spending much time investigating into such cases, either.

Also, for your information, the Criminal Code already deals with bully-type behaviour. For instance, it is a crime to threaten another person or another person’s property (section 264.1 of Criminal Code). It is also a crime to harass, follow, or repeatedly communicate with a person, causing that person to fear for their safety (section 264 of Criminal Code). For your information, this section is often used in cases where an ex-boyfriend continues to follow around his ex-girlfriend (i.e. in ‘stalking’ cases).

So, what is a better legal strategy to combat bullying? Well, in a previous column, I suggested suing the school authorities if the children are not protected: Bullies, schools, and lawsuits.

The argument was as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable harm, then the school authorities should be held accountable. And, if schools are held (financially) accountable, then school authorities are fiscally motivated and will do whatever they can to prevent and detect bullying.

School authorities have been sued in these types of cases all over Canada: Taking schools to court. This is great. It is also great that, in September 2012, the Supreme Court of Canada ruled that a youth could hide her identity when she launches legal action against cyber-bullies: Top court protects anonymity.

The downside to civil litigation (i.e. suing schools) is that litigation is expensive and slow. While it may (eventually) get justice for the victim, it is hardly the best way to deal with a school-yard bully.

So, can the ‘law’ really be used to help stop bullying? Answer: yes, BUT there also needs to be A LOT of work done in other areas, like parenting and in the education system (to stop bullying before it starts or stop it immediately after it starts).

There is no way that I can fully address this topic in this column. But, before I conclude, I will say that I was excited to hear about a new online tool for students to report bullying. Using this online tool, students could anonymously report instances of bullying. The reports would then be sent to school coordinators who would decide whether or not school authorities should investigate or whether or not police should be involved.

In closing, I am happy that there are some great efforts being made. But, with that said, it is infuriating that another person had to die before this issue got the attention that it deserves.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 20, 2012: Bullying and legal consequences.

Sued for spreading rumours?

We all have someone in our life who we don’t like or who we hate. If that person’s name comes up in conversation, we certainly don’t say anything nice about them…

 

We need to be careful, though, that we don’t spread rumours about that person because some rumours can get us sued.

You have probably heard of ‘defamation’. But, just in case you haven’t, here is the legal definition: defamation is a communication about a person that hurts that person’s reputation. If the communication is spoken, then the defamation is called ‘slander’. If the communication is written, it is called ‘libel’.

If you defame someone, then you can be sued. And, the other person often doesn’t even have to prove that he/she suffered a financial loss from your remarks; a court will actually presume that he/she suffered losses and will make you pay!

So, what kinds of things are considered defamation? What can you say and, alternatively, what can you not say?

Well, the law only protects your reputation. It does not protect you from personal insults or from hurt feelings. So, if a person publicly calls you a jerk, then you will probably have to ‘suck it up’.

But, if someone does any one of the following things, then there could be trouble (and a lawsuit):

  1. accuses you of committing a crime;
  2. accuses you of having a (serious) contagious disease; 
  3. makes negative comments about your business; or
  4. accuses you of cheating/adultery.

Also know that these types of comments/remarks must be made to someone else (and not just to the person that the statement is about). Otherwise, there is no lawsuit.

And, for your information, intentions are completely irrelevant. This means that it doesn’t matter whether or not you intended to harm another person’s reputation. If you make a defamatory statement, then you’re guilty, period (regardless of your intentions)!

You are probably thinking that you can’t make any negative comments, at all! This, of course, isn’t true. There are a few ‘defences’ to a defamation lawsuit.

One of the most common defences against a defamation lawsuit is ‘telling the truth’. This means that you can make a comment that hurts someone’s reputation as long as it is true. So, if you say that a particular person is accused of committing a crime (and it is actually true), then the other person’s defamation lawsuit is a ‘dead-end’.

Another big exception/defence is for journalists (which includes bloggers) to comment, even harshly, on matters of public interest (such as government issues). This exception/defence is called ‘fair comment’.

Another big exception/defence applies to job references. If a potential employer calls a person’s previous employer, then a claim for defamation cannot follow as long as the previous employer/reference acts honestly and without any bad intentions.

So, how common are defamation lawsuits? Answer: they’re rare. Most of the time, vicious rumours won’t lead to lawsuits. Reason: lawsuits are expensive, particularly defamation lawsuits. Defamation lawsuits MUST be commenced in Supreme Court (and cannot be commenced in the cheaper, more straightforward Small Claims Provincial Court).

Also know that the victim of defamation must sue the other person within two years of the defamation occurring – so don’t snooze!

As you can see, the law surrounding defamation tries to strike a balance between protecting your reputation and your freedom of expression. It’s a hard balance to strike.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 13, 2012: Sued for spreading rumours?

Plow your driveway (or be sued)

Winter is coming and, with it, the snow will start to fly and ice will start to form. What does that mean for you? Well, it means that you should take some steps to ensure that your property is safe (and free from ice and snow) for people entering onto your property. This applies to your residence and your place of business. If you don’t, you could be sued.

Here’s the law: owners of property owe a duty of care to ensure that people entering onto their property will be reasonably safe in using their property. Put another way, owners need to ensure that the condition of their property, such as sidewalks and steps, is reasonably safe so that visitors will not be injured. See Occupiers Liability Act, R.S.B.C. 1996, c. 337.

If a visitor falls and suffers injuries, then the owner could be taken to court and held to pay for the losses suffered by the visitor. These losses could include pain and suffering, as well as compensation for medical treatment and loss of income.

On the other hand, though, the law also requires that visitors take reasonable care for their own safety. This includes keeping a reasonable eye out for potential hazards, such as uneven pavement, snow, and ice.

It sounds straightforward, but the law is tricky in this area: liability (who is at fault) is often a hotly contested issue (and can make a big impact on how much money an injured person receives).

To illustrate, here’s an example of a typical slip and fall case:

You need some sugar, so you drive to the supermarket and park in the lot. You exit your vehicle and you walk towards the store’s entrance. It is February and temperatures are below freezing. There is some ice covering the area of the parking lot that is between you and the store’s entrance. As you walk, you eventually cross the ice and you slip on the ground. As a result of the fall, you break your arm.

It may sound like the store is 100% at fault. But, there are some other factors that need to be considered. For example, did you see any snow or ice on the ground? In the other words, was the hazard (i.e. the ice) obvious to you? If the hazard was obvious and you could see the ice on the ground, then it wasn’t reasonable for you to walk across it, right?

Also, how fast were you walking? If you were walking quickly (or jogging) across a parking lot that was covered in snow, then you are not totally without blame, either.

And what kind of shoes were you wearing? If you were wearing summer shoes with little/no tread, rather than some aggressively treaded boots, then you weren’t acting reasonably and, of course, you are partially responsible for your own injuries.

Often, the condition/quality of footwear is an important factor in slip and fall cases. For that reason, it is typically recommended that people preserve the footwear that they were wearing the day of the fall by not wearing them until the claim is resolved.

It is not unusual for both the owner of the property and the visitor to be held responsible for the visitor’s fall and resulting injuries. For example, a visitor who failed to wear proper footwear or who failed to watch where they were walking may be held 25% (or more) responsible. And, if they are found 25% responsible, then the amount of money awarded by the court to the visitor (for the visitor’s losses) will be reduced by 25%.

As I write this, I can hear people saying, “City sidewalks aren’t always plowed/cleaned after a snowfall and can be slippery.” As will be discussed in a future column, it is difficult to sue the government (and win). Often, such cases are ‘dead-ends’. So, be extra vigilant (if you weren’t already) in walking on these sidewalks. See Knodell v. The Corporation of the City of New Westminster et al, 2005 BCSC 1316.

Be careful this winter.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 6, 2012: Plow your driveway (or be sued!)

Waivers: signing your life away!

At some point in your life, you have probably tried one of the following activities: skiing, bungee jumping, zip-lining, hand-gliding, river rafting, motorcycle riding (in a class), fitness training (in a program), or martial arts training (in a class).

If you’ve done these activities, you have probably also signed a waiver, which is a document relinquishing your right to sue the company if you suffer injury (even catastrophic injury) caused by the company’s failure to look after your safety.

Some people think that waivers are worth about as much as toilet paper. But, that couldn’t be further from the truth.

Consider this real world example: Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122.

In August, 2007, two women went on a zip-line tour operated by Cougar Mountain Adventures Ltd., located at Whistler, BC.

Zip-lining involves being strapped into a harness and trolley and proceeding down a line from a higher to a lower elevation. Only one participate can travel on the line at one time (to avoid mid-air collisions between participants). A zip-tour guide is stationed at both the higher and lower elevation platforms. The guides communicate with each other via walkie-talkies to inform the other when it is safe for a participant to proceed down the line (ensuring the earlier participant has been safely removed from the line).

The rides at Whistler were over 1,500 feet long, 200 feet high, and boasted a 200 foot vertical drop. Customers could reach speeds of 100 km/hour.

One of the women was told to go down the line (by the guide). However, the other woman was still suspended on the line (and had not yet cleared the way). The women then collided with each other on the line, causing injury to both women.

The mid-air collision was entirely caused by a miscommunication between the tour guides and the only defence to Cougar Mountain was that both women, prior to riding the zip-line, signed a waiver releasing Cougar Mountain from liability.

In court, the waiver was found to be a complete defence and, despite the negligence of the guides/company, the women were not entitled to any money from Cougar Mountain.

For further illustration, here is a heinous example of when a waiver could be used a defence:

A bungee jump company knows that it should replace its bungee cords every five years; otherwise, the cords could break. But, each cable costs $50,000.00. So, instead of replacing the cable every five years, the company decides to use the cable for six years, saving some money. Now, imagine that the cord breaks and the customer falls, rendering him/her a quadriplegic (or worse).

Clearly, the company is negligent. And, without the wavier, the customer could have sued the company for pain and suffering, loss of income, and medical expenses (both past and future). But, with the waiver, the bungee company escapes being sued and, as a result, the injured customer will rely on social services for the rest of his/her life, costing taxpayers a pile of money.

Other jurisdictions don’t give such power to waivers. The United Kingdom government created the Unfair Contract Terms Act, which doesn’t allow people/companies to rely on waivers when they cause death or injury from their negligence (see section 2). Some states in America have similar law. That seems reasonable, right?

It’s not reasonable, though, that sports providers/companies are able to escape liability when they completely ‘screw up’ in keeping their customers safe.

So, how can we change this? Well, we need to pressure the government to create a law that limits the ability of companies to rely on waivers. And we need to do this now – and not wait until the next tragedy: woman falls 300 meters to her death in hand-gliding incident.

If companies were held (financially) responsible for their negligence, then you can bet that safety conditions would improve.

Lastly, I applaud two courageous Vancouver lawyers, Mr. J. Scott Stanley and Mr. Kevin Gourlay, for arguing for public safety in Loychuk v. Cougar Mountain Adventures Ltd. and for all their efforts to shine the light on the unfairness that currently exists in this area of law. Their efforts, which include providing other lawyers with research papers on this issue, represent another reason why lawyers deserve a better reputation.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on October 30, 2012: Waivers: signing your life away!

Is Small Claims Court like Judge Judy?

We’ve all seen Judge Judy’s television show in which she dispenses her own brand of small claims ‘justice’. Judge Judith Sheindlin’s volatile temperament is great entertainment.

But, is Judge Judy realistic? Is that what Small Claims Court looks like in B.C.? That’s the topic of this week’s column.

Here’s some information about Small Claims Court:

Small Claims Court is designed to allow people to have their (relatively minor) disputes settled quickly and cheaply. It is a simple process (compared to the process that occurs in Supreme Court, anyway). The rules of Small Claims Court are clearly described at the following link: Small Claims Rules.

For some context, the other B.C. court where disputes are regularly decided is Supreme Court. It is a very formal system and legal representation is important (as the rules can be very complex).

Small Claims Court is a much more user-friendly system that allows regular citizens (who are not lawyers) to speak for themselves, without a lawyer (if they choose). It’s a good thing.

In order to have your claim heard in Small Claims, you have to pass a few hurdles.

First, your claim must be for $25,000.00 or less (excluding some interest and expenses). If your claim is over $25,000.00, then you have to abandon the excess amount to keep your claim in Small Claims (and not have it bumped into Supreme Court territory).

Second, your lawsuit must be one of the types of lawsuits allowed to be heard in Small Claims, as certain lawsuits cannot be heard in Small Claims, such as lawsuits involving slander. See section 3(2) of the Small Claims Act. The most common lawsuits in Small Claims are for the recovery of some debt or for losses suffered because of someone else’s mistake/negligence.

So, without a lawyer, how does someone navigate through the Small Claims process? Well, fortunately, there are a lot of online sources, such as Small Claims BC, that make it easy for anyone to sue in Small Claims. Also, the courthouse registry is staffed with wonderful people who can help. [But, remember that the registry is understaffed, but that is a different topic…]

So, what about our judges? Are they really like Judge Judy?

Short answer: No (obviously). Thankfully, real-world judges don’t have catch phrases (such as Judge Judy’s: “Beauty fades, dumb is forever”). But, like Judge Judy, our judges yield a lot of power.

For example, judges preside over settlement conferences, which are generally required in Small Claims lawsuits.

In settlement conferences, all parties in the dispute get together (in front a judge) and see if they can come to an agreement. The judge will try to mediate the claim, help the parties prepare for trial, narrow/define the issues, or make suggestions about the case. If you don’t attend the settlement conference, the judge can impose consequences: the claim could be dismissed (if the plaintiff doesn’t show up) or a payment order could be made against the defendant (if the defendant doesn’t show up). The judges in these conferences have a lot of power.

If the lawsuit cannot be settled and goes to trial, a different judge than the one who presided at the settlement conference will preside over the trial. That judge can then run the trial however they see fit… The judge may conduct a formal trial or an informal trial, questioning each participant and allowing the parties to tell their stories (without applying the strict rules of evidence law, which can be a great thing).

If the informal process is chosen, then the trial MAY resemble an episode of Judge Judy, but it will certainly not be as sensationalistic.

Unlike television judges who are interested in ratings and who dispense ‘justice’ at light-speed, our judges take their roles VERY seriously to ensure that justice is done – and you can be sure of that.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on September 18, 2012: Small Claims Court like Judge Judy?

What should you do after a car crash?

On request, I am providing you with some tips on what to do after being in a car crash.

Car crashes are very frequent. You have likely been in one or know someone who has. I have been the victim of two crashes myself.

According to ICBC stats, a crash occurs in Kelowna approximately every hour and 2,700 people are injured in Kelowna car crashes every year.

Car crashes are totally avoidable, which is why I refer to them as ‘crashes’ (and NOT accidents).

Now, at this point, I could tell you to not drive aggressively, to slow down, and to not tailgate. But, everyone knows that already, right? (I wish that were true…) But, that’s not the point of this article.

Instead, this article is intended to give you some tips on what to do immediately after being the victim of a car crash (to protect your interests). This applies whether or not you are an occupant of a vehicle, a cyclist, or a pedestrian.

First, get the names, driver’s licence numbers, insurance information, and contact information (addresses and phone numbers) of all motorists involved in the crash.

Also, pay attention (and take note) of the behaviour/actions of the other motorists involved in the crash. Does the other driver look tired? Do they look impaired (by drugs or alcohol)? Were they wearing a seatbelt or wearing glasses?

These details could be CRUCIAL.

And don’t play games at the crash site – ensure that you identify yourself following the crash – it is a legal requirement.

Next, ensure that you get the names and contact information of any witnesses at the crash. This is VERY important – and is typically overlooked by most people. Taking two minutes to get witness information can save you A LOT of grief later.

Next, on a notepad, sketch the accident scene, indicating the direction of travel of other vehicles and the location of the vehicles after the crash. Then make a note of the traffic and weather conditions.

And remember that a picture is worth a 1000 words. Everyone carries a camera now (on their cell phone), so ensure that you take photographs of the crash scene and the other vehicles involved.

Also, report the crash to your insurance company and the police (assuming that police didn’t attend the scene).

Regarding your insurance, you should know that there are a number of time deadlines that exist (i.e. for reporting the crash or for providing a statement). If you don’t comply with those deadlines, you might not be entitled to particular benefits. So, it is important that you PROMPTLY report the crash. See section 97 of the Insurance (Vehicle) Regulation (B.C. Reg. 447/83).

While reporting your crash, though, you should be careful in providing a ‘statement’ on the details of how and why the crash occurred. Such statements can come back to ‘haunt’ you. For instance, when providing a statement, you might leave out an important detail or you may innocently recall something that wasn’t true. The insurance company (ICBC) might then try to rely on that statement/detail to argue that you were ‘at fault’ (either totally or partially) in the crash, thereby reducing the amount of money that they have to pay you.

So, what can you do? Put simply: speak to a lawyer PROMPTLY after the crash. The lawyer can help you prepare your statement and can help you navigate through all the other hurdles that exist in a personal injury file (that I don’t have room to discuss here).

With all this said, the best information that I can provide to any motorist is the following: be careful on the road.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on August 28, 2012: What to do after a car crash?

Be afraid: No-fault insurance & ICBC

There’s been some big news with ICBC lately: CEO Jon Schubert will be resigning and nearly 200 positions will be cut in the next two years.

That big news got me thinking about auto insurance and I want to share some information with you.

In B.C., there is a real danger that our auto insurance could change – for the worse – sometime in the future. The change is ‘no-fault auto insurance’.

So, what is ‘no-fault auto insurance’? I’ll explain…

Throughout North America, there are several different models of auto insurance. Those models can be divided into two systems:

  1. a liability/tort system; and
  2. a no-fault system.

The liability/tort system (which is what we have in BC) allows an innocent person to go to court and sue a reckless driver for losses (such as past and future income loss, past and future medical expenses, and pain and suffering) that the innocent party suffered in a motor vehicle crash.

In the no-fault system, innocent victims of car crashes cannot go to court and cannot sue for their losses. The reckless party is not brought to court. Instead, the innocent party is only entitled to pre-determined benefits that are decided BY THE INSURANCE COMPANY. It is a system similar to what occurs in Workers Compensation Board claims.

Quite frankly, no-fault auto insurance strips innocent victims of their right to sue and leaves them with whatever the insurance company is offering to pay, period. So, with that said, why have some provinces/states even experimented with no-fault auto insurance?

Well, insurance companies argue that no-fault insurance reduces premiums, making auto insurance cheaper. The premiums are supposed to be cheaper because the benefits that are paid out to innocent victims are significantly lower. Consider that in Ontario, when no-fault was introduced, benefits that were paid out to injured victims of car crashes were reduced by almost 50%.

So, with less (than fair) benefits being paid out, do premiums actually decrease? Are the savings actually passed on to the public? Answer: ABSOLUTELY NOT. In almost every province or state where no-fault insurance has been introduced, the premiums have (hugely) escalated.

Other than increased prices, no-fault insurance leads to an increase in crashes. Why does this happen? Well, under no-fault, reckless drivers are not sued and, as a result, are not held accountable for their actions. In Quebec, when no-fault insurance was introduced, fatal car crashes increased by nearly 10%.

Despite these negative effects, there was a battle in the mid-1990s in which the provincial government (to ICBC’s desire) was moving to change our auto insurance system. Fortunately, though, the change did not occur – there was a lot of opposition (as you can imagine).

Other provinces weren’t so lucky… Ontario introduced a no-fault system in the 1990s and, after seeing its failures, has reverted back to the tort system.

According to the Coalition Against No-Fault in British Columbia, there are over 200 organizations that are against no-fault insurance in B.C. Such groups include Mothers Against Drunk Driving, various seniors’ groups and student unions, the British Columbia Brain Injury Society, and the B.C. Trial Lawyers Association (who are keenly aware of your rights).

I wish I could go on, but this topic is HUGE – it is impossible to fully describe this issue in a short column.

But, in closing, I will say this: ICBC and other insurance companies are keenly aware that the term ‘no-fault’ conjures up negative feelings with consumers and with the public. So, if it comes up in the future (and hopefully it never will), look for insurance companies to use terms (for proposed policies) that conjure up ‘warmer, fuzzier’ feelings about such no-fault insurance.

BUT, don’t be fooled – you’ll still be paying more for less.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on August 21, 2012: Be afraid: No-fault insurance and ICBC.

Are fist fights legal?

Ah, fist fights: a method of resolving disputes by those who can’t use their brains. As ridiculous as they are, fist fights are common and they always attract a crowd. This article is intended to shed some light on the law that surrounds fist fighting.

Put simply, the rule is this: two people can fight, generally without it being subject to legal consequences, if the two people consent / agree to fight. This may sound odd, but people have (and should have) the freedom to choose whether or not to immaturely settle their disputes with fighting. The issue of ‘consent’ is tricky. Here are some of the wrinkles…

To start, there is no consent if an aggressor puts another person in a position in which they have to fight (such as being ‘backed into a corner’). So, if a ‘backed-up’ person swings at an aggressor, the fight is not consensual.

Consent also goes ‘out the window’ if either one of the people (who consented to fight) suffer non-trivial bodily harm, which basically means any injury worse than some bruises/minor abrasions.

Consent is also thrown out if it is obtained under fraud. For example, if someone enters a fight, not knowing that the other person has HIV, consent may be erased, as one person is exposed to a significant risk of bodily harm (that they didn’t know about). See R. v. Cuerrier, [1998] 2 S.C.R. 371.

Consent in a fight can also be withdrawn. So, if in the middle of a fight, one person says, “I’ve had enough”, then the other person has to respect that.

Also, consent (previously given) goes down the tube if someone is beating a ‘beaten’ person. Put another way, you can’t kick a person when they are down. Consent also goes out the window if someone uses a weapon.

When playing physical sports, like hockey or rugby, it is implied that participants give their consent to be hit and punched (within reasonable limits). That doesn’t mean, though, that someone can wind up and hit another player with a hockey stick or attack another player from behind.

To illustrate, consider Todd Bertuzzi’s assault on Steve Moore in the NHL. In that case, it was clear that |Moore had not consented to the fight, as he was punched from behind. If Moore had turned and faced Bertuzzi, then the result may have been much different (legally).

As you can see, consent in this context is tricky.

So, what happens when there is no consent for any of the reasons listed above? Well, as you can probably guess, there can be legal consequences.

To start, an aggressor can be sued by the victim. Depending on the injuries, the aggressor could end up paying big money.

Like an any personal injury case, an injured person could be entitled to his/her losses, which could include medical/dental expenses, pain and suffering, counselling expenses, loss of income (both past and future), as well as the cost of future medical care.

The aggressor could also receive criminal penalties, as well as a criminal record (for assault) that would impact a person’s ability to travel or get a job. You may be surprised to know that some McDonald’s restaurants now require a criminal record check.

Legal consequences aside, ‘weekend warriors’ need to recognize that they could kill someone. Despite what is depicted in television and movies, our bodies are fragile.

To illustrate, consider the case of R. v. Jobidon, [1991] 2 S.C.R. 714. In this case, Mr. Jobidon fought Mr. Haggart, who was celebrating his bachelor party, outside of a bar. Mr. Haggart was bigger and had trained as a boxer; but, despite that, Mr. Jobidon landed a (lucky?) punch on Mr. Haggart’s face. Mr. Jobidon then followed up with a few more punches. Mr. Haggart later died and Mr. Jobidon was convicted of manslaughter.

Bottom line: there are a lot of risks in fighting – so use your head (for something other than a punching bag).

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 12, 2012: Are fist fights legal?

Sued for having sex?

With summer coming, your dating life may soon ‘pick up’.

And, when dating someone, there is a lot to discuss, such as family, work, and future goals.

But how about whether or not you have any sexually transmitted diseases/infections (STDs)?

While not a fun topic, it should be on the radar (as there can be legal consequences).

 

STDs are very common (more common than you might think).

Gonorrhea is the most common bacterial STD worldwide and chlamydia is the most common bacterial STD in Canada. Approximately 16% of adults are infected with genital herpes. An estimated 75% of Canadians will be infected with human papillomavirus in their lives and 10-30% are infected at any one time. And approximately 75,000 Canadians are living with HIV.

Imagine this: you start dating someone and, before engaging in sexual activity, you ask them whether or not they have an STD. They tell you they don’t and you engage in sexual relationship. After some time, you develop rashes/sores/whatever, which is later diagnosed as an STD. Your partner then confesses that they have the STD, but were too afraid to tell you.

So, what happens next?

Well, many things, including a big argument. But, in addition to that, it is possible that the ‘perpetrator’ (defendant) could be found liable (i.e. has to pay money).

This may sound strange, but think of it like any other personal injury matter: a person suffers loss/harm as a result of another person’s negligent, fraudulent, or malicious conduct (and is, of course, entitled to compensation for that loss/harm).

So, what is the loss/harm in this type of case? Well, to start, the ‘victim’ (plaintiff) could require medical treatment, such as medication and/or psychological treatment. There may also be expenses related to pregnancy management (to ensure that the STD is not passed to the child). The plaintiff may also suffer severe emotional distress and, depending on the STD, they may also require time off work (resulting in lost income).

Don’t think these lawsuits actually happen? Well, they do (but not often).

In 2003, in a highly publicized case, Michael Vick, former Atlanta Falcons quarterback, had a sexual relationship with a 26-year-old health care worker, knowing that he had herpes and failed to disclose it. Afterwards, the woman commenced a lawsuit against Vick, which was later settled out of court.

For a case closer to home, consider this Quebec case: L. (J.) v. N. (A.), 2007 QCCS 3226.

In this case, a woman questioned her new partner on his sexual history and was told that he did not have an STD. The man did not, however, disclose that he had not been tested in some time.

Relying on that information, the woman agreed to engage in unprotected sex. Later, she began experiencing burning sensations, which was later found to be herpes (transmitted from her partner). The woman then commenced a lawsuit for losses that she suffered.

At trial, the Court found that the man had deceptively driven the woman to engage in unprotected sex and was found liable for the woman’s medical costs and emotional distress. But, with that said, the Court also found that the woman accepted the risks and took the man at his word. As a result, some of her claim was denied.

Civil claims like this are rare.

It may be because these cases can be hard to prove. For instance, it can be hard to prove that the plaintiff did not know about the STD (prior to sexual contact) or that the plaintiff actually contracted the STD from that particular defendant.

It may also be because losses can be small/trivial, such as for a bacterial STD that can be easily treated, making a lawsuit ‘not worth it’.

It may also be because people are not aware that this type of recourse exists.

Civil claims aside, it should also be noted that not disclosing sexual health could lead to criminal charges.

Since the landmark case of R. v. Cuerrier, [1998] S.C.J. No. 64, there have been numerous cases in which people, who have failed to disclose their HIV status, have been charged and convicted with Criminal Code offences, ranging from aggravated assault to murder.

I understand that this law might soon be modified, as discussed here: Supreme Court hears HIV disclosure case. But, for now, there are criminal consequences.

Bottom-line: be honest, have safe sex, and don’t get sued.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 22, 2012: Sued for having sex.

Eyewitnesses are unreliable

Eyewitnesses who consciously lie on a witness stand are dangerous to our justice system. But, potentially even more dangerous, are those eyewitnesses who think that they are being truthful (and are able to convincingly tell their story), but are actually recalling false memories.

Eyewitness testimony/memories are inherently unreliable.

 

Many people think of their memories as video recordings; they think that their eyes are like cameras and their memory is like a videotape recording. To remember something, they simply rewind the tape and watch it again. This perception, though, is completely wrong.

Memories are never as clear or detailed as the actual events; in fact, they are often highly distorted. Our minds play tricks on us.

How you ask?

Well, to start, memories about colour and speed are often distorted. People tend to remember colours as being brighter and more saturated (than the actual perception). Also, when recalling vehicle speeds, people tend to overestimate slow speeds and to underestimate fast speeds.

Also, memories typically contain gaps and, as a result, our mind will actually reconstruct events and fill in those gaps using other memories.

Specific to legal matters, it has been found that eyewitnesses who speak to other witnesses will use the additional information (from other witnesses) to fill in and add to their own memories.

Also, when people repeatedly recall an event, accuracy of the memory generally drops; some details are dropped from earlier versions and some new details are added.

You may be asking, “So what?” Well, this is important because eyewitness testimony is often given more weight than it deserves and is responsible for many wrongful convictions (of innocent people).

Consider Mr. Guy Paul Morin, who was given a life sentence in 1992 for the 1984 murder and sexual assault of his young neighbour in Queensville, Ontario. Eyewitnesses in that trial provided false memories, which led to his wrongful conviction.

Eyewitnesses in the Morin case expected the police to arrest the correct person and there was a lot of public pressure to find someone (anyone) responsible for the murder. Not surprisingly, their memories were rearranged (in their mind) in such a way that it benefited the police and the Crown.

In 1995, DNA testing exonerated Mr. Morin.

Everyone is capable of creating false memories. I see it often when interviewing witnesses and, of course, my job is to sort that out.

As a further illustration, while in law school, a professor, demonstrating the faultiness of memory, played my class a short video that portrayed a crime. Immediately after the video, we were all instructed to write down everything that we observed. Resoundingly, none of us were completely correct. Several weeks later, we were told, again, to recall our memories regarding the video. Again, none of us were correct and, even worse, some details were either removed and added.

Bottom-line: caution needs to be taken when relying on someone’s memories.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 8, 2012: Eyewitnesses are unreliable.