Well, there are two points here - whether a compelled apology is really

an apology at all, and whether an order to apologise can be an

appropriate response to a wrong.

On the semantic point, I'm afraid ordinary usage is against Rob.  An

insincere apology is still an apology - no doubt it is a different thing

from a sincere apology, but it's still a species of apology.  As to

which is more satisfying, I think that will depend on the circumstances

and the parties involved. Some people would get considerable

satisfaction from an insincere apology, knowing that their wrongdoer

will really hate having to make it. And whether that's something we

should encourage must depend on wider considerations than have been

canvassed here. Much the same issues have been raised in relation to

restorative justice (which, at the risk of oversimplifying, is mostly

about making the perpetrators of crimes act as if they were sorry).

On the remedies point, I don't see the problem.  Remedies for torts

almost never give back precisely what was lost. Someone who loses a leg

or the use of a leg doesn't get back that thing, but rather a sum of

money.  Sometimes the correspondence between what was lost and what is

awarded is small, sometimes it is large, but there is almost always a

significant difference (and if Rob is against apologies, I can't see how

he can be in favour of damages for pain and suffering, where again the

remedy bears only the most distant relation to what was lost).

Steve Hedley

UCC

-----Original Message-----

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: 28 October 2009 20:28

To: Lionel Smith, Prof.

Cc: ODG

Subject: Re: Liability of public authorities to apologize

Can an apology be involuntary?

I don't think so. An apology is a voluntary recognition of wrongdoing.

They ought to apologise but can a court order compel a genuine apology?

Making someone going through the form of making an apology like this is

like putting the wrongdoer in the stocks. It is a way of expressing our

condemnation of the wrong which has been done, in a public and

humiliating

way, but it isn't really an apology. I approve of any order which seeks

to

place the plaintiff in as near a position as can be achieved to the

wrong

not having occurred, and this has no necessary connection with making

good

by compensation of any loss suffered as a result of the wrong.

We see the same thing in the UK all the time with newspapers issuing

"apologies" for libels. The Sun may go through the form of making an

apology, but it isn't really apologising.

Rob

> Earlier this year, a Canadian taxpayer brought a claim in the BC

Supreme

> Court against the Canada Revenue Agency for bad faith tax

investigation.

> He

> succeeded in negligence and also obtained a remedy under s. 24 of the

> Charter for the breach of his s. 8 right to be secure against

unreasonable

> search and seizure. Section 24 provides,

>

> 24. (1) Anyone whose rights or freedoms, as guaranteed by this

Charter,

> have

> been infringed or denied may apply to a court of competent

jurisdiction to

> obtain such remedy as the court considers appropriate and just in the

> circumstances.

>

> As you can see in the attached documents, the jury awarded $300,000

for

> negligence, with zero for punitive damages. However, for the s. 24

claim,

> they awarded $1,000,000 and ordered the Minister to apologize to the

> plaintiff. I am not sure whether this has happened before under s. 24

(or

> in

> any other context except perhaps a Seinfeld episode). But others might

> know

> better.

>

> The Crown has appealed....

>

> Lionel

>

>

--

Robert Stevens

Professor of Commercial Law

University College London