Bad reviews

Today’s edition is this week’s only newsletter, on account of my leading role in an upcoming wedding. Catch you next week.

— Dylan Gibbs

with Michel Hajjar

• Setting the shrouded record straight

• Jailing a lawyer for contempt

• Suing clients for bad reviews

• Hong Kong retirements, vaccinated juries, and restrictive covenants

COURT ACCESS

SCC clears up secret trials in-camera proceedings

CBC v Named Person, 2024 SCC 21

If you expected the Supreme Court to rally against Quebec's "secret trial", Friday's decision probably came as a surprise. It turns out, there was no secret trial:

Here’s what the Supreme Court’s latest decision tells us about open courts.

Recap: Quebec prosecutors charged a confidential informer with crimes the informer disclosed while assisting police. The informer argued the charges were an abuse of process. And that’s when things went dark.

The trial judge kept the proceedings confidential to protect the informer’s identity. As the Court of Appeal put it:

The trial judge sided with the Crown, rejecting the informer’s abuse of process argument and entering a conviction. The Court of Appeal overturned that result, but the outcome was less noteworthy than the Court’s sharp criticism of what it called a “secret trial”.

The criticism led to media involvement, which led to the Supreme Court taking a closer look at the trial judge’s confidentiality measures.

There’s no such thing as a secret trial: The Supreme Court’s gripe with the Court of Appeal was that the trial started as a public proceeding, leaving at least a trace of its existence. And there was no choice but to proceed in camera after the accused claimed to be a confidential informer. The Court said it’s “needlessly alarming” to call in camera proceedings secret trials.

Word choice aside, the Supreme Court didn’t support extreme confidentiality measures any more than the Court of Appeal. Even though confidential informer proceedings take place in camera:

• A court should always list proceedings on its docket.

• It should always publish its decisions.

• And it should usually publish reasons for its decisions (redacted if necessary).

But how? The trial judge didn’t list the in camera proceedings on the court’s docket because it would have linked those proceedings to the public charges against the informer, revealing their identity. The Supreme Court suggested courts solve this issue by creating two separate files for confidential informer cases: one for the initial public trial, and a second after the informer raises their privileged status.

Big picture: The Court kept the law mostly unchanged. The media asked for public notice anytime courts consider restricting access to protect an informant, but the Supreme Court disagreed with that approach. The interests of justice typically require public notice before a court restricts access, but courts have discretion to decide what’s best in each case.

HEARSAY ROUNDUP

Canadiana

🇭🇰 Former Chief Justice Beverley McLachlin is retiring from the Hong Kong Court of Final Appeal. Don’t get it twisted—it’s not because Hong Kong is threatening civil liberties and judicial independence. It’s more of an 80th birthday celebration.

😷 “Excluding unvaccinated people from jury selection has no impact on the impartiality or representativeness of the jury,” according to the Alberta Court of Appeal.

🛒 The Competition Bureau is investigating the parent companies of Sobeys and Loblaws over their use of restrictive covenants. The concern is that the companies’ property controls suppress competition from less established grocers.

Beyond the border

🤐 Rapper Young Thug’s murder trial went off the rails this week. The presiding judge met privately with state attorneys and a state witness. Everyone seems to agree that was improper, but Judge Ural Glanville still held defence counsel Brian Steel in contempt for refusing to share how he discovered the meeting. He ordered Steel to serve 10 weekends in jail.

• Steel put himself in the running for lawyer of the decade when he asked to serve his sentence in the same jail as his client, so he could keep working on the case.

PRACTICE

Suing clients for bad reviews

What happens when a lawyer threatens to sue a client over a bad review? In one case, a reprimand. In another, a $20,000 defamation judgment. Is there a clear line between vindicating your reputation and begging for a law society complaint?

Asking for trouble: Lior Samfiru ended up on the disciplinary end of the spectrum. Not because he threatened proceedings. And not because he sued. But because he threatened completely disproportionate lawsuits with language that was... less than becoming:

Middle ground: Suing over trifling reviews might not get you disciplined, but it doesn’t leave the best impression either. In 2018, a BC judge awarded $1 over a review that—at best—was only mildly defamatory. According to the Court, reasonable readers would have ignored the bad review because of the author’s creative approach to grammar and spelling:

The judge said the lawyer shouldn’t have sued over such a poorly written review. And she used the $1 damage award to express her disapproval.

Vindication: D’Alessio Romero sued for defamation over a review that packed more of a punch:

An Ontario judge found the review defamatory, awarding $20,000 plus costs. But the self-represented client didn’t put up much of a fight, failing to even plead a defence. And the firm’s response to the bad review suggests there’s at least a chance this case could have played out the same way it did for Samfiru:

Where does that leave us? If you can’t get a bad review taken down without grossly exaggerated threats—it’s best to just let it slide.

WRITING TIP 📝

Preach.

SHARE HEARSAY

Don’t keep us a secret. Get your friends to sign up and you’ll be rewarded. You can find your custom referral link in the email version of Hearsay.