Thanks Lionel for circulating the transcript from the BC trial.  Interestingly, the BC courts have now provided at leat two cases where an apology order under s24 of the Canadian Charter has been either contemplated or, in this case, made.   Moore v Canadian Newspapers Co. Ltd 69 O.R. (2d) 262, [1989] O.J. No. 948 concerned an appeal against a decision of the Provincial Court ordering an apology as a form of equitable relief for libel. The Provincial Court found in favour of the plaintiff against the Globe and Mail newspaper, and in addition to ordering the payment of damages, ordered the defendant to publish a retraction and an apology. The Defendant appealed the publication order on two grounds.  First, that the Provincial Court lacked jurisdiction to order equitable relief, and second, that the order violated its freedom of expression as guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms. Rosenberg J allowed the appeal on the first ground. Although it was therefore not necessary to consider the Charter argument, his Honour regarded the question as deserving of consideration. He concluded that an apology order for libel was potentially a valid form of relief that would withstand a Charter challenge

 

There are at least two other cases of which I am aware where Canadian Courts have recognised the potential for an apology to be ordered as a remedy under s24 of the Charter, see Perera v Canada(1998), 158 DLR (4th) 341 and Bevis v Burns (2006), 269 D.L.R. (4th) 696.

 

As to the meaning of apology and whether sincerity is a necessary element, there are strongly differing views on that question in the apology literature. There is certainly support from some quarters that an apology, even if uttered through gritted teeth, has some value to the recipient. In my view the importance of sincerity depends on the purpose of the apology.  As Rob says, when we are teaching our children appropriate civil behaviour, sincerity is not the point.  For many people who are injured or affronted it will be. That is why most people won’t seek an apology that they know will be insincere or only partial, eg ‘I’m sorry if you think I did the wrong thing”. But there are numerous examples of insincere apologies being considered to have social, legal and psychological value. As Steve points out, they are an important feature of restorative justice.  My own view is that the value of an apology should be judged by its value to the recipient.  That is not to say that a judge asked to make an order to apologise need not exercise discretion to decide whether it will achieve any purpose of compensation, vindication or appeasement, all of which are purposes of civil remedies.  But we should not be too quick to dismiss the value of an apology as a remedial order even when it is given only after it is ordered.

 

Australia has a number of statutes under which a respondent can be ordered to apologise, similarly to the Minister in this case.  In Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24, a case concerning vilification on the grounds of sexual orientation, the New South Wales  Administrative Decisions Tribunal recognised that “if an apology is understood, as it is commonly understood, to be a statement that reflects a person’s own feeling of regret for conduct that has caused offence or harm, then of its nature it cannot be ordered to be made, unless the feeling is in fact held and it is only its expression that is ordered.  In submissions the applicant, however, says that an apology for purposes of s113(1)(b)(iiia) should be understood as being associated with a legal requirement, rather than “genuine and voluntary”.  The Anti-Discrimination Act 1977 makes clear that there is power to order an apology in respect of a vilification complaint.  The apology is acknowledgement of the wrongdoing and, seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings, it can properly be compelled by way of order.”  In this way, the ordered apology is characterized as a legal requirement to satisfy the objectives of the legislation rather than as an apology as commonly understood.

The distinction drawn in Burns between personal apologies and apologies that are an acknowledgement of wrongful conduct (which is not a distinction drawn in all cases in this jurisdiction or necessarily in other national jurisdictions where apology orders are available) is constructive even though it leaves open the question, in my mind, whether it would not better be described as what it is, namely an acknowledgement of wrongdoing, rather than as an apology. The paradox is that if it is not called an apology it might lose some of its value to the person who seeks it.

 

I have collected as much of the case law and statutory material in Aust, Canada, NZ, Sth Africa, Hong Kong and the US and references to apology literature as I have been able to find in a chapter I have written in a forthcoming book titled J Berryman and R Bigwood (eds), The Law of Remedies: New Direction in the Common Law (2009) and a paper I presented at a Remedies Forum earlier this year.  If anyone is interested in reading them please let me know and I will send them to you.

 

Robyn

 

 

From: Allison Silink [mailto:allison.silink@barnet.com.au]
Sent: 29 October 2009 09:58
To: 'Robert Stevens'; 'A.P. Simester'; 'Hedley, Steve'; obligations@uwo.ca
Subject: RE: Liability of public authorities to apologize

The Shorter English Oxford dictionary defines apology as, “3. A frank acknowledgement, by way of reparation, of offence given, or an explanation that offence was not intended, with expression of regret for any given or taken.”  Leaving aside enquiries as to whether such expressions are genuinely felt or given through gritted teeth, I’m inclined to think that definition gets to the heart of the purpose of such orders.  It is a (forced) public admission of wrongdoing for the benefit of the plaintiff and plaintiff’s interests regardless of the defendant’s mental state in complying with the order.

 

Allison Silink

 

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: 29 October 2009 20:43
To: 'A.P. Simester'; 'Hedley, Steve'; obligations@uwo.ca
Subject: RE: Liability of public authorities to apologize

 

 Maybe that is right. If we say that insincere apologies are still apologies, just as terrible art is still art or Nazi race laws are still law, then we have to keep in mind that we shouldn't think they necessarily have even a residuum of the value that the core or central case has. An insincere apology may, in some cases, be worse than no apology at all. If it is, don't order it.

 

From: A.P. Simester [mailto:simester@nus.edu.sg]
Sent: 29 October 2009 09:17
To: Robert Stevens; Hedley, Steve; obligations@uwo.ca
Subject: RE: Liability of public authorities to apologize