Monday 7 October 2013

Take  care   in   what  you  say  about  others
Before you publicly accuse someone of a wrongdoing, be sure that you can prove your allegation however if you don’t have sufficient evidence to back up your allegation, you may still have a right to make those statements providing you don’t abuse that privilege otherwise you may end up paying a heavy financial penalty. What follows is a case in point.                   

The Vanderkooys have a large and extended family. Jack and Jim immigrated to Canada from the Netherlands with their parents and siblings in 1956, and the family lived on a farmhouse outside the Ontario town of Simcoe, near Lake Erie. Jack and Jim have ten other living siblings.  Jim is three and a half years older than Jack.  The entire Vanderkooy clan was generally a very close-knit family and the family spent much family-time together up until the disclosure of unproven allegations began circulating amongst them. The inferential meanings of the allegations being circulated were to the effect that Jack was a child molester and pedophile and should not be left alone with children.

Previously to the time Jim and Chris moved to Ancaster, Ontario in 1986, Tricia and Sarah Vanderkooy slept over at Jack and Margaret’s house quite often.  Jack and Margaret Vanderkooy’s house was like a ‘second home’ to Tricia and Sarah.  Sometimes Tricia and Sarah would sleep there because Jim and Chris (their parents) required someone to babysit them on occasions, or the girls slept over simply because the two girls wanted to have a sleepover. 

Although Margaret was primarily responsible for babysitting Tricia and Sarah, Jack would, on occasion, be left alone with the children at the farmhouse when Margaret had to leave the house to run errands or tend to other activities. The girls were four and six years of age then.  

Then in 2006, when the girls had by then grown up, they spoke to Jack, their uncle and demanded that he apologize to them for allegedly sexually abusing them when they were small children. Jack refused to apologize for sexual abuses against the girls he claimed were false allegations. 
The girls then decided that they would present their detailed allegations to the rest of the extended family. Needless to say, if these allegations were untrue, then such allegations would be defamatory.

Jack sued both girls and the matter ended up in one of the Superior Courts in Ontario. Patricia and Sarah also counterclaimed Jack for sexual battery as a result of so-called alleged abuse inflicted upon them by Jack when they were young children. 

At the outset of the trial, the defendants (Tricia and Sarah) admitted making or publishing the impugned statements with respect to Jack and that those statements were capable of defamatory meanings.  However, the defendants denied any liability for statements of libel or slander and claimed among other things, their defence of justification, (truth) and qualified privilege, (acting in a reasonable manner and for a proper purpose).

Mr. Tunley, who was acting on behalf of the defendants, (the girls) submitted in a pre-trial motion that despite the young age of Tricia and Sarah at the time the alleged abuse by Jack took place in his house, there were compelling reasons why their evidence ought to be accepted.  He argued that Tricia and Sarah’s memories of the alleged abuse by Jack were clear and had been consistently described.  Their memories clearly identify Jack as the alleged abuser, by direct visual image in the case of Tricia, and indirectly, by clear sense of place and person in the case of Sarah.  He pointed out that neither of his clients had any motive to make false allegations when they first confronted Jack and requested only an apology with a view to reconciliation. In other words, they weren’t attempting to blackmail him for money.
Tunley submitted that Tricia’s evidence of her memories of the alleged abuse was candid, credible and reliable.  He said that she was firm and consistent on what she remembered and she did not embellish or augment her memories in any way.  Her testimony about what she remembered was not challenged nor was it contradicted by any previous statements she gave about the alleged abuse.   

Tunley also said that there were two claims in that case and each of Tricia’s and Sarah’s allegations was corroborated by the similar allegation of the other.  He said that both Tricia and Sarah had separate memories of abuse and independently identified Jack as their abuser.  Mr. Tunley submitted that it was highly improbable that they would both independently identify the same wrong person.

Let me say at this stage of this article, that what he said made a great deal of sense. In other words, the accusations were believable. This doesn’t necessarily mean that they were true however. Many sex abusers in the past have been convicted on similar testimony. But did Jack really abuse his two nieces when they were small children? The answer to that question was one which the judge would have to decide on his own. It came down to the issue of credibility of the two women and that of Jack in their testimonies.

Credibility plays an extremely important part in court testimony because often the evidence submitted in trials is circumstantial or alternatively, it is he said versus she said testimony and each of the testimonies given appear on the surface to be truthful.  Such evidence is an enormous hurdle for trial judges to leap over. Who does he or she believe when it appears that both parties are telling the truth? It is the responsibility of the trial lawyers to convince the judge that his or her client is the one telling the truth and that the other person is not telling the truth. This is to a spectator, where the fun really begins.

The trial judge in his judgment said in part;

“During the course of the trial, both parties adduced hearsay evidence (what others told them) in support of their various positions. Moreover, there was excessive lay opinion evidence proffered by both parties through various witnesses with regards to who should be believed, or why one was telling the truth, or why certain events occurred, or how individuals may have reacted; as well as various personal theories advanced as to the incidents in question.” unquote

Tunley had argued that both of the women’s allegations were further corroborated by expert clinical evidence that they suffer psychological conditions, including depression and anxiety, which are medically recognized to be highly correlated or corroborative with a history or pattern of sexual abuse.  He admitted that their experiences differed but their symptoms experienced by both, included suicidal thoughts and attempts, difficulties with sexual intimacy, and difficulties forming trusting relationships.  He said that Tricia and Sarah had a nurturing family upbringing and both women would have otherwise achieved significant academic and professional success if they hadn’t been sexually abused as children by their uncle.  Their lawyer said that no other obvious explanations for these clinical symptoms and experiences could be suggested.      
It is not my intention to downgrade the efforts of psychologists and psychiatrists in this article but let’s face it; their conclusions are based on what they are told by their patients. If their patients are faking their illnesses, then how will their psychologists and/or psychiatrists know for sure in order to make an accurate diagnoses?   

Factitious disorders are conditions in which a person acts as if he or she has a physical or mental illness when he or she is not really sick. People with factitious disorders deliberately create or exaggerate symptoms of an illness in several ways. They may lie about or fake their symptoms for the purpose of obtaining sympathy or to forward a plan to obtain something of value. 

Factitious disorders are considered mental illnesses because they are associated with severe emotional difficulties. However, it is conceivable that when someone is attempting to further a purpose such as obtaining a goal like money or some other thing of value, such persons are not sick—they are simply bad or outright evil. The question facing the judge in this particular case was; where the two defendants really sick or where they really bad?

What was the ‘expert clinical evidence’ that their lawyer was referring to?

Practicing evidence-based medicine encourages the clinicians (medical professionals) to integrate valid and useful evidence with clinical expertise and each patient's unique features, thereby enabling clinicians to apply evidence to the diagnosis and the treatment of their patients.  But suppose their patient is faking the illness and his or her clinician hasn’t recognized it. If that happens, can the clinician’s testimony still be recognized by the court as being expert clinical evidence?  I hardly think so.  

The practice of medicine, like many other areas of human endeavor, requires considerable ‘hands on’ experience to achieve mastery of the profession. Most physicians, when asked, will honestly admit that they did not really feel competent for several years after they entered their practice of medicine whatever it was, which tallies with estimates from other professions that suggest 10 years (8,000 hours) are required to become a virtuoso in their chosen fields. Even then, the professionals can make mistakes.

Psychologists and psychiatrists generally have no easy access to proof of their 
diagnosis of their patients even as they deal with disorders of the most complex features of human life—the mind and its controlling behaviour of human beings. There is a persistent belief that psychiatrists and psychologists are entitled to be presumed to be correct in their diagnosis of their patients because they know the secret of human nature and thus can venture beyond their clinic-based competencies to instruct juries and judges alike on the true and unquestioned description of specific ailments their patients are undergoing. Some of these professionals have made mistakes in their diagnoses of some of their patients. Psychology and psychiatry may be more vulnerable to such errors than other clinical endeavours, given their lack of checks and correctives, such as the autopsies and laboratory tests that detect other medical professional’s mistakes. The most conspicuous misdirection of psychiatric diagnosis and prognosis is the hasty discharge of patients with severe, chronic mental disorders such as schizophrenia from psychiatric hospitals.

The trial judge had to make a determination as to whether or not the conclusions reached by the psychologist was valid enough to add weight to the two women’s allegations of child molestation by Jack upon his nieces when they were young children.

Tunley submitted that their uncle’s lawyer’s challenge to Tricia’s and Sarah’s credibility is either based upon outdated and discredited stereotypes about child sexual abuse or are alternatively unfounded in the evidence. He said that delayed reporting of sexual abuse, whether due to suppressed memory or to deliberate non-reporting of abuse, are both common, and are not necessarily evidence of recent fabrication.  Similarly, recantation shortly after the initial disclosure of allegations is common, particularly in response to reactions and repercussions within a victim’s family and does not detract from the abuse as described by both Tricia and Sarah. In a sense, he is correct on the premise he suggested. But does it apply to Tricia and Sarah?

He also argued that the evidence before the Court revealed much that calls into question the credibility of Jack’s denial of the allegations against him.  He said that Jack’s evidence-in-chief was contrived, at various times protesting his innocence, professing his religious faith and devotion to family, and playing his posture as a victim, in each case to an implausible degree.  The lawyer also said that in cross-examination of Jack by him, he was frequently caught in a contradiction, or without any satisfactory explanation, when reminded of his discovery evidence.  Jack showed a certain carelessness for the truth, and even untruth in his sworn evidence on discovery and at trial. 

Tunley further submitted that Jack had shown disrespect for the legal process throughout this litigation.  At trial, he was exposed for failing to give accurate and complete full answers in discovery where the information was damaging to him. Most fundamentally, the sister’s lawyer submitted that Jack’s claim to be innocent of the allegations against him is at odds with his own emotional reaction to the allegations, which was predominantly one of anger. 

Further, Tunley argued, Jack’s inability to accept the recantation and the apologies given by Tricia and Sarah, and thereby restore family relations and his continued questioning of their honesty and credibility, is inconsistent with his claim of innocence.  When Jack learned that Tricia and Sarah were again accusing him of sexual improprieties, his response was to mount a sustained and aggressive campaign against them by suing them.  Mr. Tunley submits that this conduct is, simply, not that of an innocent man, properly exonerated of mistaken allegations, rather, it is the conduct of an angry abuser.

It doesn’t make any sense for the defendant’s lawyer to argue that because Jack refused to accept the recantation and the apology of the two women for defaming him and because his suit against the two women was based on anger because they continued with their allegations; his conduct is not that of an innocent man but instead it is of an angry sexual abuser.

That conclusion is about as stupid as suggesting that a child who is accused of dropping the atomic bomb on Hiroshima and denies that he did it and won’t apologize to the Japanese people for something that was done before he was born must be guilty of having dropped the bomb on that city anyhow.  In all the years I represented clients in courts; (beginning in 1964) I haven’t seen or heard such rubbish. I am forced to ask this admittedly opinionated rhetorical question, “Where did this lawyer really study law? Was it in a school for mentally challenged students?” He was doing what we called in court— reaching.  His arm was so far extended, I am sure it passed the Voyager 2 spacecraft that is currently well beyond our solar system.

As he was reaching beyond our solar system for a legal case that would help him, he submitted to the judge that Jack’s court claim for his defamation claim against his clients should be dismissed and his own two client’s counterclaim allowed. 

Alternatively, even if the Court were to be unable to find that Tricia and Sarah had established their allegations on a balance of probabilities, he submitted that the Court should nevertheless find that both his client’s had an honest belief in the truth of their allegations, even if they were mistaken ones.

Such honest beliefs, coupled with the circumstances in which the disclosures of their allegations take place, give rise to a qualified privilege defence within a limited sphere.  In the absence of malice, for which there is no defence whatsoever, qualified privilege constitutes a complete defence to defamation claims.

Here is another lesson in the law of defamation. It is true that if a person makes an unfounded allegation based on what that person honestly believed to be true and that person did it without malice towards the person he or she allegedly defamed, and their statement was privileged, a court will not find that he or she defamed that person.  

Both statements of opinion and statements of fact may justify the defence of privilege, depending on the occasion on which they were made. The defences of absolute and qualified privilege reflect the fact that ‘common convenience and welfare of society’ sometimes requires untrammeled communications.  

In this particular case, even if the sisters erroneously believed that they had been sexually abused by their uncle, they did no wrong in informing the other members of their family in order to protect the younger children in their family from abuse by the uncle which they believed might very well happen providing that their allegations go no further than their immediate family.   

In addition to privilege, statements of opinion—a category which includes any deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof, may also justify the defence of fair comment.

A defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: that a person honestly expresses that opinion on the proved facts and (e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

Where statements of fact are at issue, usually only two defences are available: the defence expressed in court that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). 

The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society. 

For example, for a defendant to succeed on the defence of justification, the defendant must adduce evidence showing that the statement was substantially true.  This may be difficult to do.  A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event, especially of the sources are deceased. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little value to journalists and those who publish their stories.  If the defence of justification fails, generally the only way a publisher can escape liability for an untrue defamatory statement of fact is by establishing that the statement was made on a privileged occasion. In this particular case I am writing about, the two sisters would be justified in informing their immediate relatives of Jack’s alleged sexual abuses of them providing of course that malice wasn’t a prime factor in their motives for making the disclosure to their immediate family members. 

In recent decades, courts have begun to moderate the guidelines of qualified privilege, albeit in an ad hoc and incremental way.  When a strong duty and interest seemed to warrant it, they have on occasion applied the privilege to publications to the world at large. For example, in suits against politicians expressing concerns to the electorate about the conduct of other public figures, courts have sometimes recognized that a politician’s ‘duty to ventilate’ matters of concern to the public could give rise to qualified privilege. The same applies if a journalist accuses a politician of a wrongdoing which the journalist honestly believes was committed by the politician.

Free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. For example, when I suspected that a close friend of mine might be sexually molesting my five-year-old daughter, I immediately informed my daughter. She then spoke to her daughter and confirmed my suspicions. The man was arrested and imprisoned for a year.  But suppose my granddaughter told my daughter that the man did nothing to her of a sexual nature, could I be successfully sued by the man? No and the reason is because our Charter of Rights and Freedoms guarantees our right to make accusations even if they turn out to be unfounded as long as we believe them or have good reason to believe that they are true.  To deny that right would cause insurmountable problems in our society. 

Tricia and Sarah had that same right as the rest of us in Canada but that right only extended to them if their actions weren’t based on deliberate untruths or alternatively, malice. That had to be decided by the trial judge in that case.

The defendant, RVE, was the adopted child of the plaintiff father (P) and her mother (J) and alleged that P had sexually abused her while she was aged 10 to 14.  It was not until RVE was a grown woman with grandchildren that she first mentioned the sexual abuse to anyone else.  Shortly before the defamatory comments at issue were made, the defendant heard that her five-year old granddaughter was found in bed with P.  The defendant became fearful for the safety and well-being of her relatives and worried that P’s abuse would continue.  The defendant sent a series of letters and emails to her own parents and to each of her siblings and their spouses.  The letters contained defamatory statements, alleging that P sexually and physically abused RVE as a child and that J was aware of the abuse and did nothing to prevent it.

After the defendant refused to apologize for her statements, the plaintiffs sued for defamation.  The defendant counter-claimed, alleging sexual assault by P and breach of fiduciary duty by J and in the alternative, the defendant pled qualified privilege as a defence to defamation.  

The court first considered the allegations of sexual and physical abuse. After a thorough review of the evidence, Sigurdson (the judge) held that the allegations against P were established on a balance of probabilities, but that there was insufficient cogent evidence to find J in breach of her duty to protect the defendant. The court was required to continue on to a consideration of the defendant’s claim that her defamatory comments were protected by qualified privilege.

Justice Sigurdson noted the two-part requirement underlying a successful claim to qualified privilege: first, viewed objectively, the statement must have been made on an occasion of qualified privilege, and second, the person receiving the information must have been interested in receiving it.  In light of all the circumstances, the judge held that the occasion on which RVE made the defamatory comments was “clearly one capable of giving rise to a qualified privilege”; the impugned communications “arose because of her concern for the safety of children in the family and based on her belief that she had been sexually assaulted by her father, and her belief that her mother knowing of her complaint did not take adequate steps to prevent either the sexual or the physical abuse.

 In regards to the second requirement for finding qualified privilege, the recipient’s interest in receiving the communication, the judge held;

“On this matter, I find that all family members, particularly adults, share a common interest in potential misconduct by one of their own when young children are concerned. I find that the comments of the defendant were made in a situation of qualified privilege. In other words, the communications were made by RVE who had an interest in preventing sexual, physical or verbal abuse in the family and they were made to people, namely her brother, her sister and then to all of her siblings and their spouses who I find would have an interest in receiving this information.” unquote

That being the case, RVE couldn’t be successfully sued for defaming her adopted father even though he denied the allegations and there wasn’t actual proof of the allegations  because she was within her rights to inform her family of what she considered might very well be a risk to the young children in the family. 

In the current case I am writing about, the defendants (Tricia and Sarah) realize that they bear the burden of proving that the statements at issue were made in circumstances that were privileged.  If they satisfy that burden, then Jack’s claims for defamation must be dismissed unless he can prove that the words were spoken or written with express or actual malice.

The defendant’s lawyer argued that the disclosure of allegations of sexual abuse to therapists and others with an interest in hearing the allegations, such as family members and close friends, has been recognized as an occasion of qualified privilege.  He argued that all family members’, in particular, the adults shared a common interest in potential misconduct by one of their own when young children are involved. 

The defendants’ claimed in court that they sent the emails in order to set the record straight after learning that Jack had telephoned all of his siblings. The judge’s response to that was;
“I do not accept that position.   First, Jack had told each of his siblings that he had (i) been confronted and accused by his nieces that day or having sexually abused them as children; and (ii) that he was innocent of such allegations.  I find that the defendants did not in fact set the record straight, as they only repeated their allegations of abuse and not Jack’s position that he was innocent.  The defendants repeated the allegations of abuse and they either replied or otherwise promoting their allegations.  Second, I am satisfied on the facts in this case that the addition of the words that “they did not want anyone else to be sexually abused”, strongly inferring that Jack was a continuing child molester in 2006, and was not germane to any reciprocal duty or interest on the occasion in sending the email.  Third, the defendants’ published their emails to individuals who had not been contacted by Jack on August 13, 2006, including his siblings’ spouses, nieces and nephews.”  unquote

That third statement by the judge is interesting because it raises the specter that the sisters were contacting relatives that would not be affected by Jack’s alleged abuse and therefore there was no reason why they should have been informed of their allegations against their uncle. This was evidence of malice on their part.

The judge said;

 “I do not agree that the dissemination of these emails or slanderous statements fell under a situation of any stress or urgency.  I am convinced that the statements were not reasonably intended to prevent further sexual abuse to other children.  Clearly, by the time of the renewal of the allegations in 2007 and the second series of communications advanced by the defendants, the scope of emotional support and advice had long expired.  There was no urgency or corresponding interest in sending out the allegations beyond the immediate family, the therapist, counselors or close friends.” 
He further stated that;

Beginning on August 12, 2006, Sarah and Tricia both made oral and written statements to extended family members and others in the community that Jack had sexually abused them.  I do not have cogent or reliable evidence that Sarah and Patricia, by publishing the allegations to various unrestricted parties outside of the immediate family were seeking emotional support or falling under other criteria for the reasons proffered by the defendants. The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when the information was given. In my view, not all members of the family or others had the mutual concern or interest in the allegations. In my view, the defendants were merely disseminating their complaint and they were either reacting to or precipitously publishing the various defamatory statements.” unquote  

He also said;

“I find that the defendants’ emails of August 13, 2006, to the extended Vanderkooy and Vanderkooys families, where they were informed that Sarah and Patricia had been sexually abused by Jack as children, and in that context, they further stated: “We do not want anyone else to be sexually abused” exceeded any qualified privilege as to the duty to protect, which might have otherwise possibly attached to the occasion.”  unquote

Finally the judge said;

“I conclude that in all these circumstances, and applying the test referred to above, the great majority of right-minded persons would not feel it appropriate for a person, who at least, as a result of the timing of the disclosure immediately after confronting Jack, and particularly at the time of the second series of emails, that they were not in such emotional distress to send out the emails on masse for guidance and support in any appropriate way.  Even if the defendants’ held an honest belief, (that Jack abused them) there was no restricted or limited sphere of dissemination of their allegations of abuse.  On the whole, I find that the occasions proven in evidence when the defendants communicated information regarding the plaintiff that could be classified as slanderous, they did not do so in the honest belief that the communication was for the purpose of protecting children, preventing further abuse, for valid therapeutic reasons, for emotional support and advice or to advance this litigation.  I do not find the requisite duty to publish for those whom Patricia, Sarah, and Jim communicated with singularly and collectively to qualify as being qualified privileged.”  unquote

So as you can see, there are times when you can defame or slander someone but you cannot do it if your actions exceed what is considered qualified privilege such as what those two sisters did. Such actions would be evidence of malice and that is not acceptable when making slanderous and defamatory statements about other persons publicly.

The judge awarded costs and damages of $125,000 against Tricia and Sarah in their uncle’s favour. Now these two women really will be pissed off at their uncle.





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