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The Bounds of the Permissible: Using “Cultural Evidence” in Civil Jury Cases

Published online by Cambridge University Press:  18 July 2014

Robert J. Currie
Robert J. Currie
Affiliation:
Faculty of Law, Dalhousie University, Halifax (Nova Scotia)Canada, robert.currie@dal.ca
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Abstract

Central to any consideration of “culture in the domain of the law” is whether and to what extent culture is justiciable, litigable, and subject to being adduced as evidence before courts and tribunals. Experts, usually from social science and humanities disciplines, will often be called upon to present this kind of evidence. While the Supreme Court of Canada has developed screening criteria for expert evidence, these criteria can be more difficult to apply when the evidence sought to be adduced is “cultural,” as opposed to classically scientific. Concern for the reliability of the expert evidence is multiplied when a jury is acting as trier of fact. This comment reviews a recent decision of the Nova Scotia Supreme Court in a racially-charged defamation case, using it as a platform for discussing the unique issues that are raised when cultural evidence is sought to be adduced in civil matters.

Résumé

Au centre de toute considération de la «culture dans le domaine du droit» est la question si, et dans quelle mesure, la culture est justiciable, contestable et peut être introduite comme preuve devant les cours. Des experts des disciplines des sciences sociales et humaines sont souvent appelés à présenter ce genre de preuve. Alors que la Cour suprême du Canada a développé des critères pour évaluer la preuve par expertise, ceux-ci sont plus difficiles à appliquer lorsque la preuve présentée est de nature ‘culturelle’ plutôt que scientifique classique. Le souci de la probité de la preuve par expertise est accru dans les cas où un jury doit évaluer les faits. Ce texte commente une décision récente de la Cour suprême de la Nouvelle-Écosse, en matière de diffamation liée à des propos caractérisant un comportement de raciste, l'utilisant comme plate-forme pour discuter des enjeux particuliers soulevés par la preuve culturelle dans le domaine civil.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 20 , Issue 1: Cross-Cultural Jurisprudence / Jurisprudence Transculturelle , April 2005 , pp. 75 - 86
Copyright
Copyright © Canadian Law and Society Association 2005

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References

1 See Currie, R.J., “The Contextualized Court: Litigating ‘Culture’ in Canada” (2005) 9 International Journal of Evidence & Proof, 73.CrossRefGoogle Scholar

2 Specifically the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [“the Charter”], section 27: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

3 This, too, is driven by the values enshrined in the Charter, particularly section 15. For an interesting portrayal of the courts as drivers of a pluralist and egalitarian agenda in the U.S. context, see Villarreal, Carlos, “Culture in Lawmaking: A Chicano Perspective” (1991) 24 U.C. Davis L. Rev. 1193.Google Scholar

4 Boyle, C. & MacCrimmon, M., “To Serve the Cause of Justice: Disciplining Fact Determination” (2001) 20 Windsor Y.B. Access Just. 55 at 62.Google Scholar

5 Stemming most recently from the reasons of Sopinka, J. in R. v. Mohan, [1994] 2 S.C.R. 9.Google Scholar See generally Sopinka, J. et al. , The Law of Evidence in Canada, 2nd ed. (Markham, Ont.: Butterworths, 1999), c. 12Google Scholar (and the Supplement thereto (Markham, Ont.: Lexis Nexis Butterworths, 2004) at 93–117); Paciocco, D. & Stuesser, L., The Law of Evidence, 3rd ed. (Toronto: Irwin, 2002), c. 6.Google Scholar

6 R. v. D.(D.), [2000] 2 S.C.R. 275, at para. 53 [“D.D.”].

7 This decision of Moir J. of the Nova Scotia Supreme Court [hereinafter the “admissibility decision”] has not been reported in the Nova Scotia Reports or elsewhere in hard copy. It is available at [2001] N.S.J. No. 598 (QL); and online: CANLII <http://www.canlii.org/ns/cas/nssc/2001/2001nssc10061.html.

8 Campbell v. Jones and Derrick (2002), 209 N.S.R. (2d) 81 (N.S.C.A.) [the “Court of Appeal decision”], leave to appeal denied [2002] S.C.C.A. No. 543.

9 I am making what I recognize to be a large, and somewhat instinctive, leap in describing racism as a “cultural” issue, though I think it is highly arguable. Culture and race are, of course, overlapping but not interchangeable. However, one need not conflate culture and race to accept that racism is a manifestation of cultural interplay. Since racism was a relevant issue in this case, as in many others, then it is defensible to describe the evidence there on as “cultural.” I am also mindful of the “emergence of a widely accepted approach to culture in anthropology that dismisses its value as a category of ‘thing’, as a noun that can be identified, described, compared with others (…) and by extension, decided upon in courts.” (Niezen, R., “Culture and the Judiciary: The Meaning of the Culture Concept as a Source of Aboriginal Rights in Canada” (2003) 18 Can J. L. Soc. 1 at 1CrossRefGoogle Scholar). For a view that the death of “culture” as an anthropological concept has been highly exaggerated, see M. Sahlins, “‘Sentimental Pessimism’ and Ethnographic Experience, Or, Why Culture is not a Disappearing ‘Object’” in Daston, L., ed., Biographies of Scientific Objects (Chicago: University of Chicago Press, 2000), at 58–202.Google Scholar

10 Parts of this paper are drawn, with amplification, from my earlier brief review of the decision in “The Balancing Act: Recent Developments in Civil Evidence” (2003) 28:4 Nova Scotia Law News 80.

11 The Court of Appeal reversed a trial decision of Moir, J., reported at (2001) 197 N.S.R. (2d) 212 (S.C.).Google Scholar This summary of the facts of the case is drawn from the Court of Appeal decision, paras. 3–20.

12 Campbell later acknowledged the impropriety of these actions and was disciplined.

13 R.S.N.S. 1989, c. 348 (repealed; repeal not proclaimed in force as of May 4, 2005).

14 Court of Appeal judgment, para. 15. They also read letters authored by themselves and some of the girls' parents, to similar effect.

15 The actions against the media organizations were settled well before the trial (Court of Appeal judgment, para. 13).

16 Admissibility decision, supra note 7 at para. 22.

17 Ibid., at para. 25.

18 Supra note 5. Normally such a motion would be made during the trial, and the judge would exclude the jury while making his/her legal ruling as to the admissibility of the expert report. These reports were the subject of a pre-trial motion by agreement of the parties, “in order to convenience one of the experts” (admissibility decision, supra note 7 at para. 1).

19 That the comments were not defamatory because they were true; see Brown, R.E., The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Thomson, 1994), vol. 2, c. 10.Google Scholar

20 That the defendants were not liable, even if the comments were defamatory, because they were made in the discharge of some public or private duty to make such remarks; see Brown, ibid., c. 13. While it is beyond the scope of this article, the Court of Appeal majority decision basically rested on qualified privilege, which the Court found applied to protect the defendants.

21 That the defendants were not liable, even if the comments were defamatory, because they were comments on a matter of public interest; see Klar, Lewis, Tort Law, 3rd ed. (Toronto: Thomson/Carswell, 2003) at 704–10.Google Scholar

22 Admissibility decision, supra note 7 at para. 25. The question of whether the defendants had been malicious in making the remarks was an issue because a finding of malice overcomes certain defences, such as qualified privilege and fair comment; see Brown, supra note 19 at 1047–50 (qualified privilege) and 1005–08 (fair comment).

23 The other two criteria are: absence of any exclusionary rule that would otherwise bar the opinion; and that the expert must be properly qualified to give evidence in the field.

24 Admissibility decision, supra note 7 at para. 8.

25 Ibid. at para. 9.

26 This is so because “when the opinion deals with an ultimate issue that traditionally falls within the province of the jury (…), the danger that the reception of the expert evidence will have a disproportionate effect on the outcome of the trial is heightened” (Sopinka et al., Supplement, supra note 5 at 114).

27 Admissibility decision, supra note 7 at para. 11, quoting D.D., supra note 6.

28 Ibid. at para. 28.

29 This issue had been ruled irrelevant in an earlier Chambers hearing in the case; Campbell v. Jones and Derrick (1998), 168 N.S.R. (2d) 1 (S.C.).

30 Admissibility decision, supra note 7 at para. 40.

31 See L'Heureux-Dubé, C., “Re-examining the Doctrine of Judicial Notice in the Family Law Context” (1994) 26 Ottawa L. Rev. 551.Google Scholar See also R. v. R.D.S., [1997] 3 S.C.R. 484, which was cited by Moir J. at para. 17. For a thorough canvass, see Delisle, R., Stuart, D. & Tanovich, D., Evidence: Principles and Problems, 7th ed. (Toronto: Thomson, 2004) at 251–85.Google Scholar

32 Supra note 7 at para. 14–19, citing inter alia R. v. Parks (1993), 84 C.C.C. (3d) 352 (Ont. CA.) and R. v. Williams (1998), 124 C.C.C. (3d) 481 (S.C.C.).

33 See the review of this caselaw in Currie, “The Contextualized Court” supra note 1.

34 See generally Sopinka et al., supra note 5 at 1055–68; Paciocco & Stuesser, supra note 5 at 376–86.

35 Admissibility decision, supra note 7 at para. 14.

36 Ibid., quoting approvingly from the Plaintiff's brief.

37 Ibid. at para. 26.

38 Ibid.

39 Sopinka et al., supra note 5 at 633 [emphasis added].

40 See generally Paciocco, D., “Evaluating Expert Opinion Evidence for the Purpose of Determining Admissibility: Lessons from the Law of Evidence” (1994) 27 C.R. (4th) 302Google Scholar; R. v. J.(J.-L), [2000] 2 S.C.R. 600.

41 I am compelled to acknowledge, without making any attempt here to substantively address it, the tension between how courts construct humanities and social science disciplines—responding to the essentially forensic role imposed upon the courts by the adversarial system—and the extent to which those disciplines construct themselves. Courts are bound to subject evidence to a “standard of proof” as a means of constructing facts, which in civil matters requires the trier of fact to be convinced (as a function of logic) that something is true “on the balance of probabilities,” i.e. that it is more likely than not. This is a significantly different exercise than the manner in which, say, anthropologists arrive at versions of “facts” within the parameters of their discipline. This can be compounded by the debates within the discipline itself over whether anthropological methodology is generative of “predictive power,” as opposed to “interpretive power.” As Clifford Geertz has written, “[t]he worry (…) has mostly to do with the question of whether researches which rely so heavily on the personal factor (…) can ever be sufficiently ‘objective,’ ‘systematic,’ ‘reproducible,’ ‘cumulative,’ ‘predictive,’ ‘precise,’ or ‘testable’ as to yield more than a collection of likely stories”. See Geertz, Clifford, Available Light: Anthropological Reflections on Philosophical Topics (Princeton, NJ: Princeton Univ. Press, 2000) at 94).Google Scholar See also, by the same author, “Local Knowledge: Fact and Law in Comparative Perspective” in Geertz, C., Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983) at 167–234.Google Scholar

42 Devlin, R. & Pothier, D., “Redressing the Imbalances: Rethinking the Judicial Role After R. v. R.D.S.” (1999–2000) 31 Ottawa L.Rev. 1 at para. 94Google Scholar, per Devlin [footnotes omitted]. The author makes this remark with regard to judicial use of social framework evidence, and I would argue that it applies with even more force in a jury trial situation.

43 This likelihood was anticipated by the defendants and accepted by the Court; see supra note 7 at paras. 32 and 37. In the end, at least five of the jurors were White, and none were of African descent (personal communication from J. Rice, co-counsel to the Plaintiff, August 23, 2004).

44 See the reasons of Dickson J. in R. v. Abbey, [ 1982] 2 S.C.R. 24 at 42.

45 Yet it is not at all unusual. Courts and commentators often express discomfort regarding the admissibility of expert opinion which emanates from “non-scientific” disciplines. See, for example, the remarks of Finlayson, J. in R. v. McIntosh (1997) 117 C.C.C. (3d) 385Google Scholar (Ont. CA.): “(…) before a witness can be permitted to testify as an expert, the court must be satisfied that the subject-matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under the general laws” at para. 15. For similar views from U.S. courts, see Jenson v. Eveleth Taconite Company, 130 F.3d 1287 (8th Cir. 1997) at 1297; Nations v. State, 944 S.W. 2d 795 (Tex. Ct. App. 1997) at 800. See also Connell, J.G. and Valladares, R., eds., Cultural Issues in Criminal Defence (New York: Juris, 2000) (Looseleaf), c. 8Google Scholar, “Using Cultural Experts;” and Gold, A., Expert Evidence in Criminal Law: The Scientific Approach (Toronto: Irwin, 2003), c. 9Google Scholar, “Science and Social Science Evidence,” especially fn. 11 and accompanying text.

46 Though it is worth mentioning that Justice Moir made a brief obiter remark to the effect that he felt that the “necessity” criterion from Mohan would also have excluded the opinions, supra note 7 at para. 29.

47 I would note that, in (mostly) concurring with this line of reasoning as it played out in this civil defamation case, I am deliberately avoiding engagement in the intense debate and extensive literature relating to the availability of a “culture defence” in criminal law. Perhaps it is sufficient to remark that stringent application of the Mohan criteria can produce salutary effects in that setting, among them avoiding the distortion of such an ultimately malleable concept as “culture” by the adversarial litigation process, in a manner that “distances the subject of study by creating an unrecognizable ‘other’,” and “subordinate[s] members of the foreign culture through descriptive control” (Volpp, Leti, “(Mis)identifying Culture: Asian Women and the ‘Cultural Defense’” (1994) 17 Harv. Women's L.J. 57 at 62Google Scholar, as quoted in Choi, Jennifer, “The Viability of a ‘Cultural Defence’ in Canada” (2003) 8 Can. Crim. L.R. 93 at 105Google Scholar). For excellent surveys of the “cultural defence” debate and its applicability in Canada, see the article by Choi, ibid., as well as Wong, Charmaine, “Good Intentions, Troublesome Applications: The Cultural Defence and Other Uses of Cultural Evidence in Canada” (1999) 42 Crim. L.Q. 367.Google Scholar

48 On a more technical point, one element of Jones and Derrick's defence was that the remarks were not factual allegations directed at Campbell personally, but part of a general commentary regarding the manifestations of systemic racism. Deciding whether remarks are fact or commentary was a matter for the jury. In this light, the decision to admit the general opinions was entirely consistent with the Mohan relevance rationale. I am grateful to John Rice for this insight.

49 Admissibility decision, supra note 7 at para. 35–36.

50 Ibid., at para. 36, referring to Parks and other cases.

51 Ibid.

52 For a recent expression of this approach, see the remarks of Rosenberg, J.A. in R. v. Pollock (2005) 23 C.R. (6th) 98Google Scholar (Ont. CA.) at para. 123 and authorities cited therein.

53 Paciocco & Stuesser, supra note 5 at 168.

54 As Moir J. noted (supra note 7 at para. 19), Dr. Henry herself had previously testified as to the racist content of telephone “hotline” messages by the Heritage Front in Canadian Human Rights Commission v. The Heritage Front and other, [1994] 1 F.C. 203 (F.C.T.D.).

55 The Canadian Judicial Council has recently begun a series of training programs for judges in what is termed “social context education;” see Cairns-Way, R., “What Is Social Context Education?” (1997) 10:3National Judicial Institute 5.Google Scholar