Defenses for Protection of Persons

Defenses for Protection of Persons Self-Defence: (MORE) Defences for Protection of Persons TEST … for indv to establish on BoP 1. honestly and reasonably believed they were about to be struck 2. amount of force used to protect themselves was reasonable in all of the circumstances Wackett v Calder (1965): 2 dudes in a barfight, P was attacking D outside, D struck P ineffectively, then laid him out & broke his cheek // à attacked person defending himself, confronted with a provoking situation cannot exactly measure the exactitude and weight of blows à must be reasonable and proportionate; onus on D to prove occasion warranted action and force wasn’t excessive (Ellis v Fallios-Guiterrez) à P doesn’t have to wait for other party to strike first (R v Scopelli) à injuries don’t matter, only nature of force and circumstances (Brown v Wilson - bearhug) à reasonable and bona fide mistake of fact in self-defence is still ok to use the defence (R v Reilly) Defence of Third Parties: (MORE) Defences for Protection of Persons **Gambriell v Campbell (1974): 2 men having altercation over fender bender in alley; mom sees commotion and whacks P with garden tool // à where a person intervening to rescue another holds an honest, though mistaken, belief that the other person is in imminent danger of injury, he is justified in using (REASONABLE) force à excessive force is not okay (Cachay v Nemeth – kissed wife, husband trained in karate) à Defence of third parties is not limited to family (R v Duffy) Provocation: (MORE) Defences for Protection of Persons à prior events not relevant, provocation needs immediacy à TEST: would conduct cause a reasonable person to lose self-control? **Miska v Sivec (1959): D intentionally shot P, road rage and previous bad blood à provocation may affect damages (**Ellis v Fallios-Guiterrez) Discipline: (MORE) Defences for Protection of Persons **R v Dupperon (1984): son caught smoking, bad language, ran away from home; dad straps butt with leather belt ~10 times, leaving bruises --- wasn’t reasonable here! à force is allowed under s 43 of the CCC if it is within reason à s 43 is determined by Canadian social standards, not of the accused (R v Baptiste) à may use minimal force on teenagers for protection, rather than correction (R v Swan) à educators may be permitted to use force under s 43, if reasonable (R v Wetmore) à TEST for discipline (Cdn Foundation for Children, Youth and the Law v Canada (AG)) • used for a corrective purpose • child must be capable of understanding why force is being used • s 43 doesn’t apply if o force harms, or could be expected to harm, a child o is cruel or degrading o used on teenagers, bc shown to not work o teachers use force as punishment à ALSO… captains, pilots, etc. have common law right to use force to maintain order & discipline (King v Fanklin) Defence of Legal Authority (MORE) Defences for Protection of Persons 3 key questions: 1. did D have legal authority to undertake act? 2. was D legally privileged, ie protected from civil/crim liability? – pg 268 3. did D meet all obligations imposed on him/him? CCC s 494 (1) à anyone can make an arrest à suspicion isn’t sufficient, has to be a strong and honest belief (R v Storrey) à law changed to “reasonable time” R v Chen: grocer finds repeat thief, =/= finds committing, used legal fiction to let Chen off à “finds commiting” is interpreted broadly, means “apparently finds committing” R v Biron – constable arrests D and hands off to peace officer Charter s 24(1) gives judges discretion to award “appropriate and just” remedy à 4 part TEST for awarding damages: Vancouver v Ward [2010]) 1. P establishes Charter right violated 2. Damage must advance Charter goals 3. state may attempt to establish a countervailing factor 4. the amount of the damage award should reflect its purpose (compensation, vindication, or deterrence) Charter s 52 establishes constitutional supremacy, therefore may eliminate basis for person’s defence of legal authority Rights & Obligations in the Arrest Process: Reasons for the Arrest à accused is always entitled to know reason for the arrest, need to have reasonable and probable grounds for arrest, shouldn’t be held incommunicado **Koechlin v Waugh and Hamilton – P wearing tennis shoes, stopped by plainclothes police, P refuses to ID, scuffle ensues, arrested, P’s dad wasn’t allowed to see him in jail) à can seek redress if not informed of reasons for arrest under Charter s 24(1) **see above** à suspects have to be given opportunity to submit peacefully before force is used – general rule Common Law Power to Search Pursuant to Lawful Arrest **R v Caslake [1998]: D arrested for marijuana possession, car searched for “inventory” 5 hours after arrest, found cash and cocaine. à search only justifiable if the purpose of the search is related to purpose of the arrest à 3 limits: power doesn’t impose a duty; search must be part of valid objective in pursuit of ends of crim justice; must be within reasonable time **Eccles v Bourque [1975]: P has known dealings with “Cheese”, police enter P’s apartment to search for “Cheese”, sues for trespass. à reasonable and probable belief // police announced presence before entrance Battery & Consent in a Medical Setting: BoP on Plaintiff for 1st three elements of BATTERY (direct, interference, harm) BoP on Defendant for 4th element (intent) CONSENT PRIOR TO EXAMS, TESTS, PROCEDURES, SURGERY OR COUNSELLING MUST BE SPECIFIC (ID PROCEDURE AND RISKS) VOLUNTARY, WITH TIME TO READ CANNOT BE TOO TECHNICAL OR PRESENTED AS MERE FORMALITY à Doctors have BoP on BoP for Consent à statutes specify how consent is given à signed consent is only “evidence” not consent itself COMPETENCY? --- FOR MINORS LOOK AT NEXT PAGE **TEST**Ability to understand nature of treatment and risks, not make reasoned judgment // can be intoxicated or on drugs // broad bc safeguards autonomy of the individual Vitiate Consent: exceeding, mistake, duress, public policy à implied consent, not opposed to being touched in order to get to hospital Battrum v British Columbia: P falls off horse, D is rough ambulance worker à consent doesn’t matter in emergency situations à person’s body is held inviolate à doctor acts within duty to save the life and health of the patient “in that honest execution he should not be exposed to legal liability” Marshall v Curry: P is patient with hernia surgery, Dr. (D) removes damaged and diseased testicle à doctors can only treat within limitations of valid, informed consent à doctors aren’t liable for patient’s refusal for medical care à right of refusal isn’t premised on understanding risk Malette v Shulman: P is Jehovah in car accident, Dr. (D) gave blood transfusions after card and sister said not to, stopped only when stabilized. à if surgery is NOT a medical emergency, doctors must leave decision to patient Murray v McMurchy: tied fallopian tubes during C-section bc of tumours on uterine wall àWithdrawing life support constitutes treatment, and therefore requires consent from a patient or substitute decision maker – under the HCCA Cuthbertson v Rassouli: D on life support, wife wants to keep him there, Drs (P) want to take P off Dissent: patient’s don’t have right to treatment, only right of refusal False Imprisonment (Trespass to the Person) Intentional, total restraint of a person (Bird v Jones) 1. Intentional 2. Total restraint of a person o No requirement of physical contact o No requirement of particular duration o No requirement of consciousness/awareness • • • Lawfulness is a complete defense (Beatty and Mackie v Kozak), burden on D to prove Can v Calgary Police Service: Peace officer does not inherently preclude liability, official role or title does not provide inherent lawful justification an honest mistake can still = guilty **Bird v Jones: P driving on public highway, redirected by hired policeman; à "imprisonment is something more than the mere loss of this power; it include the notion of restraint within some limits defined by a will or power exterior to our own" à Ability to use alternate destination, albeit inconvenient, did not constitute total restraint J(MI) v Grieve: P doesn’t have to be conscious of imprisonment at the time it occurred **Saint-Jacques v Canada: prisoner awarded damages for wrongful placement in solitary confinement (see below) Intentional Infliction of Nervous Shock Trespass to the Person TEST (Prinzo v Baycrest, adapted from Wilkinson below) 1. Flagrant and outrageous conduct (see Boothman, Clark, LAvinska, And Rinaldo) 2. Calculated to produce harm (See Rahemtulla and Pinesfierra) 3. Resulting in a visible and provable illness a. Must be a recognized illness b. Absense of clinical diagnosis not fatal, but would be due diligence to obtain one **Wilkinson v. Downton (1897) – D told P her husband was at pub with broken legs, P suffered IINS (✔) à “Person who makes false statement intended to be acted on, must make good the damage resulting from its being acted on” Prinzo v Baycrest: P missed work at beauty shop bc of mental illness, accused of exaggerating symptoms, mental health further deteriorated, $15k in damages, relied on Rahemtulla (D’s conduct as flagrant and outrageous, calculated to produce harm, resulting in visible, provable injury) (✔) Purdy v Woznesenky: D punched P’s husband in the head, D should have foreseen nervous shock to P (✔) • • • • • • Boothman v Canada (threats of bodily harm to a vulnerable and fragile employee); Clark v Canada (persistent sexual harassment of a RCMP officer) for examples of behavior that was flagrant Lavinskas v Jacques Whitford (reprimand letter, negative & unprofessional behaviour in an employment context) and Rinaldo v Royal Ontario Museum (dislike & marginalization of employee) example of behaviour that was not flagrant Rahemtulla v Vanfed Credit Union (1984): P accused of theft and fired by D, $5k awarded (✔) Pinesfierra v Ayotte: “Calculated to produce harm means: clearly foreseeable that it would cause harm to the victim: extent of harm need not be anticipated, but this kind of harm must have been intended or know to be substantially certain to follow. Invasion of Privacy law is unclear, protected in piecemeal fashion; not clear in Canada // US outlines 4 categories // autonomy rights // not in Charter but underlies many guarantees // broad court discretion in remedy **Jones v Tsiege (2012): D accessed P’s bank records 174 times over 4 years, D in CL relations with P’s ex (✔) à ELEMENTS FOR INTRUSION UPON SECLUSION: 1. One who intentionally intrudes (physically or otherwise) 2. Upon the seclusion of another (or his private affairs or concerns) 3. Is subject to liability to the other for invasion of his privacy if the invasion would be highly offensive to the reasonable person • Motherwell v Motherwell (1976 ABSC): D mentally unstable and harasses family by telephone (✔) à if statute hasn’t created privacy, may be actionable under nuisance// available to landowners Privacy Act in BC (see attached) requires willfulness // CL NOT RECOGNISED IN BC Violation of privacy actionable (1) It is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass. • (1)(3)You must look to the the parties’ relationship and the whole context (see, for example, Milner) **Hollinsworth v BCTV (1999): P was bald, hair surgery at LIE, consented to film for instructional purpose, cameraman later hired by BCTV and assured them no concern re: confidentiality BCTV (✗) others (✔) Following the Statutory Test: • "Willfully" applies narrowly to an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person. This was not established in this case. • “Without a claim of right”: As per David v McArthur (1969): an honest belief in a state of facts which, if it existed, would be a legal justification • In this case: Belief was both reasonable and honest. Therefore, there was no violation of Privacy Act Breach of Confidence: used to protect privacy of sensitive business and personal information LAC Minerals v Intl. Corona Resources [1998]: (onus on P to prove): info was confidential in nature, disclosed in circumstances creating an obligation of confidentiality, ***Ari v ICBC (2013): P alleges D’s employees violated breach of confidence à heightened burden on public bodies to protect personal info (FIPPA) ------------------NOT YET A TORT-----------Discrimination(✗) ***Seneca College of Applied Arts & Tech v Bhaduria (1979): D highly-educated E.Indian woman, PhD philosophy, 10 times applied for opening, not even an interview (✗) HR Code covers it à No private tort of discrimination, HR legislation covers remedies and breaches Stalking (✗) when a person knowingly or recklessly harasses a person in such a manner that leads the other person to fear for their safety à not in CL, but conduct is prohibited by 264(1) of CCC, mostly statutes Harassment(✗…✔) seriously annoying, distressing, pestering conduct / abusive, racist language, bullying, harassment by creditors or the govt, etc. à no formal tort, BUT courts will fashion a remedy for outrageous or completely unacceptable behavior re: acceptable standards of discourse If Harassment were a tort, the TEST would follow: (Mainland Sawmills v. IVVA) 1. 2. 3. 4. Outrageous conduct by the defendant Intention of causing or reckless disregard of causing emotional distress Plaintiff’s suffering of severe or extreme emotional distress Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct à varied approach to sexual harassment ***Savino v. Sheletowsky: Girard v Ball: Emotional distress of such substantial quality… that no reasonable person in a civilized society would be expected to endure it Garrett v Mikalachki: The categorization of wrongs in this area is in flux Fowler v Canada (Attorney General) (2012): P is prisoner at federal penitentiary, D represents corrections, etc.; P alleges harassment with comments in reports, delay for day release, psychological harm, etc. (✗) Clark v Canada [1994]: P is female RCMP officers, harassed by male co-workers, supervisors didn’t help (✔) à cites LOTS of IINS cases: Wilkinson (spite or malice not required) Rahemtulla (IINS 3 reqs) Purdy (intention imputed to D) à serious and prolonged suffering, lots of people involved, actions and inactions Defamation - Elements Elements: (Grant v Torstar) 1. The impugned words were defamatory (Lawson v Baines) a. Plain and ordinary meaning (he is corrupt) b. True/legal at innuendo (“lovely partner” in case of married man) c. False/popular innuendo (photo of man walking to brothel due to angle of shot) 2. The words reference the Plaintiff (Knapper v London TEST) 3. The words were published, and communicated to at least one person other than the plaintiff ELEMENT 1 à TEST: “Would the words tend to lower the P in the estimation of right-thinking members of society generally?” // Not just bad manners or discourtesy (STING OF THE REMARK would lower the plaintiff in the eyes of a reasonable person?) Sim v Stretch: housemaid sends telegram asking for “money owed” ELEMENT 2 à TEST: Need to answer YES to both! (Knupper v London Test) 1. Referencing Individual: • Does the statement in fact lead reasonable people to the conclusion that it refers to the plaintiff? 2. Referencing Group: • Size of group (Bou Malhab) • Nature of group (Heterogeniety) 3. Connection to group 4. Real target of the defamatory statement 5. Plausibility of Statement Knupper v London: newspaper publishes re: group, P not named specially, but leader of the group ELEMENT 3 à TEST: Statement is communicated in any way, to a 3rd party who understands the statement // à Hyperlink isn’t a publication **Crookes v Newton: D owns website, P is Green Party politician Majority: to prove publication, P must establish D’s act conveyed defamatory material to 3rd party • An act that makes the defamatory information readily available to a third party in a comprehensible form” • The receipt of the information by a third party in such a way that it is understood • If communicated to at least one person other than the plaintiff then it is satisfied Repeating a statement is also liable (Lambert v Thomson), original publisher not liable unless meeting ONE of the following: • The original defendant provided the re-publisher express or implied authority to republish the defamatory remark • The original defamatory remark made to someone who had a duty to disclose the remark • Republication natural and probable consequence of the original publication à Private messages are okay as means to serve a notice of claim, but also has to publish in newspaper Burke v John Doe: P alleges 7 Ds from online message board published defamatory comments Personal service is impractical // no effective means of identifying users // likely will receive messages Defamation - Defenses 1. Justification à The whole of the defamatory matter is substantially true (**Meier v Klotz) à If statement is general in character, may be supported by multiple instances, but not just a single one Williams v Reason: rugby player accused of “shamateurism” 2. Absolute Privilege COMPLETE IMMUNITY (promotes honest and public speech in the public interest) a. Executive Officers à TEST: 3 conditions (1)statement must have been made by officer of state to another officer of state (2) must relate to state matters (3) must be made by officer of state in the course of their official duty **Dowson v The Queen: RCMP told Deputy AG of Ontario stuff about another politician/journalist investigated re: matters of national interest b. Parliamentary Privilege à immunity for statements made during parliamentary proceedings, no protection outside the assembly (Canada v Vaid) c. Judicial Proceedings à TEST: ask whether the body to which the complaint was sent is quasi-judicial or merely administrative in nature (Sussman v Eales) **Hung v Gardiner: supervisor informed Law Society and CGA association of BC re: investigation and reprimand of employee – held to be quasi-judicial 3. Qualified Privilege ***doesn’t apply if malicious (Botiuk v Toronto Free Press Publications) -- generally applies when speaker has an interest or duty (legal, social, moral) to make the statement and the recipient has a reciprocal interest to receive the statement -a. in protection of own interests b. in protection of interests of another person c. in furtherance of a common interest i. McLoughlin v Kutsay: Dr says D is psychopathic personality for examination on worksite) 1. Needs reciprocity d. in protection of public interest i. Campbell v Jones: P stripsearched 3 female students in view of window, their lawyer gave press conference saying wouldn’t have happened if students not poor and black e. Fair and Accurate Reporting i. Hill v Church of Scientology: D’s lawyer read out motion at press conference before it was filed 1. Comments found to have exceeded any legitimate purpose 2. Didn’t take steps to confirm allegations against P 3. Exceeded QP defense à Defense may be lost with “over-publication”, but interested parties has broad interpretation McGarrigle v Dalhousie: basketball coach sent letter re: ineligible player Defamation – Defenses (continued) 4. Fair Comment à TEST: Chenersky: newspaper publishes letter from university students alleging alderman is a racist (1) statement is shown to be comment or opinion, not allegation of fact (2) which any person could honestly express **ASK: Could any person have honestly held the belief based on given facts? Was subjective (Chernesky) but now objective (**WIC Radio v Simpson) (3) based on true facts (4) pertaining to a matter of public interest (5) cannot be made maliciously (onus for malice requirement returns to plaintiff) • (**WIC Radio v Simpson): Defendant keeps making controversial statements, P gave speech at public school to speak about LGBT rights. D was a known figure in community à Burden on P to prove commentary TEST: would an ordinary, reasonable person recognize the statement as a comment upon true facts, not a bare statement of facts? Vander Zalm v Times Publishers à Defence only applies if CLEAR statements were comments, not facts (Jones v Bennett) à D must prove the facts underlying opinion were true, not unproven or misstated (Holt v Sun Publishing) à D doesn’t have to prove inference (based on the facts) are also true (Leech v Leader Publishing) 5. Responsible Communication on Matters of Public Interest à TEST: (Grant v Torstar – established whole new defense to bring CL in line with Charter values // Expression > Indv) 1. Was actually in the public interest i. invite public attention OR draw substantial concern from the public 2. Communication was responsible i. Excludes malice by definition ii. Stipulations for Responsibility: More serious allegation = more diligence req’d // More public importance = less diligence req’d // Urgency // Status and reliability of source // more reliability = less responsibility // was “target” given opportunity to respond? // necessary to include defamatory statements? // Repetition Rule =/= apply IF report … attributes statement to someone else, indicates statement not verified, outlines both sides of story, provides context in which statement was made (need all of them?) 6. Consent à P’s consent to publication is an absolute immunity or absolute privilege upon the D, also if instigated by P (or someone on P’s behalf) Jones v Brooks: P hired private detectives to secretly record D’s defamatory statements, but was goaded Defamation - Remedies (1) INJUNCTIONS Awarded pre-trial to enjoin further publication of the statements REQUIRES: • Clearly defamatory statement • No Justification Plead OR impossible for defense of justification to proceed (2) DAMAGES Hill v Church of Scientology: context and fact specific to award damages, General: presumed from the very publication of the false statement; awarded at large Consider: the effect of statement on reputation? Is it significant and lasting? Aggravated: awarded if malicious Consider: additional harm caused? Eg. Humiliation, anxiety, mental distress // withdrawal of statement or apology? // repetition? Punitive: so malicious it offends court’s sense of decency, aim =/= compensation, but punishment Consider: need for deterrent? Is general and aggravated insufficient? Was conduct so outrageous additional damages are rational? DAMAGES: *only if tort is proven and defense fails, s 24 Charter* 4 Types of Judicial Remedies: Damages (grants P a legal right to a specific sum) Injunction (court order that directs party to do, or not do, something) Declaration (formal statement of court to resolve a dispute) Order of Specific Restitution (directs a party to restore pre-existing condition) Classification of Damages: Pecuniary (monetary, no maximum amount ie. lost wages, medical bills, etc.) Non-Pecuniary (pain, humiliation, disfigurement, harder to quantify, maximum amount $350k) 4 types of Damages: 1. NominalàAwarded in a small sum to redress violation of a legal right that law deems worthy of protection, even in absence of actual harm // Based on purpose, not amount // rare this is the only damage sought // Nominal =/= small … Mediana uses example of chair in the study 2. Compensatory à $$$ // To obtain financial redress for actual loss // ALL ITEMS to place injured party in the same position if the injury had never occurred (***Dodd Properties v Canterbury City Council, 1980)à difficult to ascertain in some circumstances Pecuniary (no max) speculative factors, invaluable losses, idle property & includes past/future earnings, past/future expenditures Non-pecuniary (max. $350k) Andrews v Grand & Toy Alberta (1978): Dickson J à “There is no medium of exchange for happiness. There is no market for expectation of life … The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary and conventional.” Hawkins v McGee (1929): skin graft from chest to burnt hand – grew a hairy palm (expectation damages) 3. Aggravated à focus on the victim // a form of compensatory damages awarded to compensate P for additional injuries to dignity and similar feelings arising from conduct of D // 2 requirements: P must establish suffered additional injuries to their feelings and D’s conduct was highly offensive, repugnant, outrageous Rookes v Barnard [1964]: injuries to P’s proper feelings of pride and dignity arising from D’s malice or manner of committing the wrong 4. Punitive à focus on the perpetrator // dual function of punishment (backwards looking) and deterrence (discouraging others in the future) // ONLY CONSIDERED IF compensatory and aggravated damages are insufficient to properly punish D, denounce the conduct, deter repetition Rookes v Barnard [1964]: à court limited punitive damages to oppressive, arbitrary, or unconstitutional conduct by government officials; conduct calculated to make a profit in excess of the likely compensatory damage award; and situations expressly authorized by statute Examples of Punitive Damages as Deterrence: Hill v Church of Scientology & Norberg v Wynrib B(P) v B(W) (1992): P was sexually assaulted by D (father) from ages 5-17 & raped at age 20; Dr. said most traumatized SA victim ever seen (emotionally and socially dysfunctional) à $100k in non-pecuniary general damages / $75k aggravated damages / $50k in punitive damages à repugnant, reprehensible conduct à severe pysch damage à provocation may affect damages (**Ellis v Fallios-Guiterrez)