The Search for Truth… with the assistance of maps

By David Grossman

Preparing for trial can be difficult for witnesses. The nature of the legal system is such that trials will usually take place years after the events in question occurred, and witnesses’ memories are not frozen in time. Witnesses may meet with counsel to prepare, but testimony is not a prepared speech.

At the same time, testimony is not a closed book quiz either.

As a result, witnesses may sometimes bring notes with them to trial. Such notes are not prohibited, and could assist witnesses in recalling certain events. The drawbacks of bringing notes, however, are twofold: first, the fact the witness is relying on prepared notes may affect her credibility and the impression the judge has of her testimony; second, the notes themselves become fair game to opposing counsel.

Notes prepared in connection with trial are normally protected by litigation privilege, which creates a confidential space for litigants to prepare their cases without fear of discovery by the other side: see Blank v. Canada (Minister of Justice), 2006 SCC 39. But when a witness makes use of them on the stand, that privilege is lost. The question then becomes where the line is drawn between privileged and unprivileged materials. Justice Suzanne Ouellet of the Superior Court of Québec was seized of this question in Boulaine v. Canada (Attorney General), 2015 QCCS 6582.

A witness referred to notes in the context of a discovery examination. The notes referred to various paragraphs of the proceedings, but references to paragraph 15 of the motion to institute proceedings were removed. Opposing counsel wanted to obtain a copy of the removed comments in connection with paragraph 15.

Ouellet J.C.S. referred to the principle that notes used by a witness lose their privileged status, and opposing counsel gains the ability to cross-examine the witness on the notes. However, it is only the substance of the note that is covered by this rule. A witness who deliberately excludes certain subjects from her notes will not be said to renounce privilege on those subjects. The objection to disclosure of comments in connection with paragraph 15 was therefore maintained.

The holding in this case followed from the premise that the notes used by the witness were complete in themselves, as they were the only notes consulted by the witness. This situation can be contrasted with one where a party engages in incomplete or selective disclosure of privileged material, giving the Court an incomplete picture of events.

In Pop v. Boulanger, 2016 QCCS 2728, Justice Chantal Corriveau recently repeated the applicable principles in such a situation. Where there is renunciation, the renouncing party cannot unilaterally determine its scope in a manner advantageous to her. Citing the Supreme Court, Corriveau J. explained that where there is a renunciation, the Court has the obligation to ensure that “tous les documents pertinents” are revealed.

Corriveau J.C.S. also referred to a decision by Justice Joël Silcoff, confirming that a party cannot “cherry pick” which materials to disclose and which materials to exclude, in a manner that may give an incomplete picture to the Court. In that case, Silcoff J.C.S. held that a party cannot draw a line at a certain point-in-time and declare that privileged communications before that date are renounced, but privileged communications thereafter should remain protected. If the whole story includes communications that may have been exchanged subsequently, the Court will not adhere to the line that the renouncing party drew.

The takeaway from the foregoing is that the rules of disclosure and evidence are ultimately meant to support a system where truth and fairness prevail. A witness will not be prohibited from relying on notes, but equally, the witness will not be able to hide them from the opposing party. A witness can renounce privilege on some but not all documents, but equally, the witness will not be able to do so in a manner that tells only half the story.

So you can bring a map to court to help search for the truth. But you’ve got to be ready to share.

The Fallacy of Legal "Expertise"

By David Grossman

Judges are experts on the law, not only as a matter of practice, but as a matter of principle. They know the law because they deal with it on a daily basis; they are also deemed to know the law because the law itself says so.

Usually, the practice and the principle go hand-in-hand. But sometimes, a legal issue arises that is within the scope of a judge’s deemed knowledge, but falls outside his or her actual knowledge.

Sometimes a legal issue arises that is not only complex, but indeed esoteric. Sometimes, a legal issue is laden with such particularity and uniqueness that answering it requires the work of a legal historian.

In such cases, can a legal expert assist the Court? This was the question with which the Honourable Gilles Blanchet J.C.S. was recently seized, in Québec (Attorney General) v. IMTT-Québec Inc., 2016 QCCS 849.

The background of this case is a jurisdictional battle concerning whether the provincial government or the federal government regulates the port of Québec on environmental issues. One crucial source for the Court was an 1858 Act of Parliament, the interpretation of which was the object of dispute by the parties.

To support the interpretation it was advancing, the Attorney General of Québec filed an expert report prepared by a law professor from the University of Ottawa. The other parties (supported by the Attorney General of Canada) challenged the admissibility of the report.

At a procedural level, Justice Blanchet inquired as to whether a determination on the report should await the merits, after the expert’s testimony was heard under reserve. He decided it should not:

[9]  En effet, lorsque l’objection au dépôt d’un rapport d’expertise et au témoignage de son auteur porte non seulement sur la pertinence, l’utilité ou la valeur probante de la preuve en cause, mais aussi et surtout sur sa recevabilité en droit, le juge qui en est saisi, à quelque étape du dossier que ce soit, devrait en décider dès que possible, de façon à éviter aux parties des frais et délais inutiles. Le principe s’impose de façon plus impérative encore lorsque, comme ici, l’inadmissibilité de l’expertise paraît évidente.

[Emphasis added; footnotes omitted]

On the substantive issue, Justice Blanchet considered whether the expert report could be adduced as evidence. The key question, succinctly stated by the Court, is whether the litigation involves complex scientific or technical questions, or whether trial judge is otherwise able to understand the facts and reach appropriate conclusions.

The focus, therefore, is not on whether the expert report could be helpful to the Court in the same way jurisprudence or doctrine could be helpful by elucidating the legal principles involved. The focus is on whether the judge requires additional assistance to understand the facts.

“Facts”, as Justice Blanchet observes, include legislative facts. Legislative facts are facts establishing the history and purpose of a law, including its social, economic and cultural context. For instance, the Court may want to inquire on the social context in which a law was enacted in order to evaluate its constitutionality.

Yet sociological inquiries must be distinguished from legal ones. Justice Blanchet explains that no expert should be used to assist the Court in situating a law in its juridical context. It is the sole task of the trial judge to determine what intention the legislator expressed in the text of a law.

Applying these principles to the case at bar, Justice Blanchet determined that the expert report was inadmissible.

He came to this conclusion despite lauding the report as being “remarquable”. But the content of the report was not properly the object of expert testimony.

The first part of the report consisted of a review of certain concepts, without reference whatsoever to the facts of the case. It was “non pas un rapport d’expertise, mais plutôt un ouvrage ou article de doctrine dans sa forme la plus traditionnelle.”

The second and third parts of the report directly addressed legal questions that the Court had to decide in the case at bar. Quoting Parizeau v. Lafrance, Justice Blanchet refused to allow expert evidence on such matters:

[29]  […] Soit dit avec égards, on semble confondre ici deux choses bien distinctes: l’expertise, qui fait partie de la preuve et qui éclaire le juge sur les faits et leur analyse, et la plaidoirie en droit, domaine de compétence des avocats et du tribunal. On ne laisse pas un témoin, tout expert qu’il soit, témoigner sur le droit interne. C’est aux avocats qu’appartient le rôle d’instruire le tribunal à ce sujet.

Ultimately, Justice Blanchet noted that the content of the report, divorced from its application of the law to the facts of the case, could still be referenced as an authority in oral argument. But it was not an admissible expert report in any form. He concluded the decision by writing:

[31]  […] Dans le présent cas, de fait, rien ne devrait faire obstacle, en principe, à ce que l’opinion de Mme Debruche soit ainsi déposée lors des plaidoiries, pour valoir comme doctrine, dans la mesure où on en retrancherait d’abord les extraits liés directement aux faits de l’affaire. De même, il serait aussi loisible aux procureurs du PGQ de s’inspirer de cette opinion dans leur argumentation ou de confier même à l’auteure le mandat de livrer pour eux cette portion de leur plaidoirie devant le tribunal, à la condition, bien sûr, que celle-ci soit inscrite comme membre en règle du Barreau.