Adducing Sensitive Evidence and Writing Decisions: Where Do We Draw the Line?

In my November 17th Slaw post “Making the Hard Decisions: Ethical Lawyering”, I discussed Dean Embry’s refusal to make certain arguments and call certain evidence and witnesses in his representation of James Sears, editor of Your Ward News (YWN), a community newspaper. Sears was convicted of spreading hate and, despite his accepting these views about what might be successful in his defence, a ground of his appeal was that Embry was incompetent because of his (Embry’s) failure to argue the truth of the content of YWN. In this post, I’m raising another issue related to the trial decision in the Sears case: to what extent should judges reproduce offensive material in support of their decision?

This issue isn’t limited to judicial decisions. I recall many years ago debating this question when discussing articles about pornography: how graphically should we describe in writing examples of pornography in order to criticize it? I tended to the view that to make the argument, it was necessary to say enough so that people knew why there was a problem. But I think, if memory serves, that I was in a minority among those of us (all feminists) discussing it — or perhaps we disagreed only about how much. Regardless, it was contentious.

The issue arose again for me when I was a vice-chair at the Ontario Labour Relations Board (OLRB). As was usual (perhaps more at the time than is the case now), we were a panel of three, two sidespeople, one to represent employees, one to represent employers, and me, the neutral. The nature of the case really doesn’t matter, but what does matter is that it involved material — cartoons — that had been distributed at a workplace where one union was incumbent and another union was seeking to displace it. Among other things, the cartoons were blatantly anti-Semitic. We were firm in stating in our decision how reprehensible the cartoons were. Doing so was uncontroversial. However, we went further and reproduced the cartoons. This was the subject of debate on the panel: did we want to spread this material any further by reproducing it in the decision? In those days (1989), the decision itself would usually have limited circulation, unless it was included in the reports of the OLRB and in this case, it was. Today, tribunal decisions are easily available on databases and this particular decision can now be found on CanLII, for example. (Having noted this more extensive availability, I’m quite sure the potential of greater distribution wasn’t on our minds, for good or ill, when we decided to include the cartoons in the decision; we were concerned only that some relatively few people would see it and the ethical rightness of reproducing the cartoons.)

What have my meanderings through memory to do with the Sears decision? Simply this: Blouin J. quoted excepts from YWN in the body of his decision to illustrate how the contents were anti-Semitic and misogynist. He didn’t limit himself to reproducing the material in the context of the decision itself, though, he added a lengthy Appendix composed of “a listing of excerpts of alleged examples of hate, as provided by the Crown in closing submissions”. These were vile comments, echoing long-held lies about women and Jews, and supportive of violent acts against members of these groups. I admit that at some point as I skimmed through the appendix, I could no longer tolerate them and had to stop reading.

Was it necessary to cite so many instances of the vicious misogynist and anti-Semitic rubbish (too mild a word, perhaps, but reflective of the worth of these comments) (a few instances in the appendix had already been referred to in the body of the decision)? It is true that they made the case that YWN was spreading hatred and explained why people resented having it put in their mailboxes (at one point residents within its distribution area had successfully asked Canada Post to stop delivering it: see here). But would fewer comments have had the same effect? Perhaps, but at the same time, no one could reasonably accuse the trial judge of selecting merely the worst to justify his decision or that seen in the context of the full newspaper their effect would be less abhorrent.

Exercising discretion in decisions is commonplace in some contexts. For example, the names of sexual assault victims are not revealed and often initials are used in family and other types of cases. The full information is simply not necessary for the adjudicator to explain the reasons for their decision or for others to appreciate the decision.

And of course in criminal law, otherwise relevant but particularly “bad” previous behaviour may be excluded because to admit it would be prejudicial to the accused. However, in what has become an infamous case, certain evidence was tendered and admitted that raises this question of whether it was necessary. Cindy Gladue was a sex worker. She was found in the bathtub of the man charged with her murder, having bled out from a tear in her vagina. During the trial, the Crown sought to introduce into evidence Cindy Gladue’s vaginal tissue in order to demonstrate the severity of the injury. The trial judge permitted it. For them, this was “the best evidence”. Not surprisingly, it was the accused who argued against tendering the preserved tissue as evidence, on the basis that the pathologist’s oral testimony and autopsy photographs of the pelvic area were adequate and that the tissue would be prejudicial to his case (see 2015 voir dire decision in R. v. Barton, para. 7).

It is neither insignificant nor irrelevant, in my (and certainly others’ view), that Cindy Gladue was Indigenous, a Cree woman, to the decision to allow her intimate body part was brought into the courtroom. The tissue was projected on a large screen in the courtroom, allowing anyone who was in the courtroom (strangers, as well as family and in addition to the jurors) to see it. As Christa Big Canoe explained in her condemnation of the introduction of this evidence, it would have been possible to use technology to show how the severity of the injury that led to Cindy Gladue’s death. The CBC had prefaced Big Canoe’s opinion with a trigger warning: “Warning: This story contains some graphic and disturbing details.” (Also see here for a CanLII commentary by Victoria Perrie on the ethics obligations of the Crown and the judge, also containing a trigger warning: “NB: This post contains references to graphic and sexual violence in the case and hearings.”)

In considering whether to admit the tissue, the judge took into account a number of factors including whether seeing the tissue (only projected on the screen) would be upsetting to the jurors. On the question of prejudice to the accused, the judge stated as follows:

The potential for prejudice is speculative. The jury has already been exposed to highly disturbing photos of Ms. Gladue in the bathtub and of the bathroom. It will be exposed to autopsy photos which, in my view, having seen Dr. Dowling’s evidence on voir dire using the tissue, are more disturbing and unsettling than the more scientific and impersonal appearance of the preserved tissue. (para. 55)

And further:

Undoubtedly, some jurors may be upset by the presence of the tissue in the courtroom. I fail to see, however, that its presence is likely to have the effect of distracting them from their duty to dispassionately and impartially consider the evidence in this case, or that it may inflame them against [the accused]. These possibilities appear to me to be remote, and I would frankly be more worried about the photos which have already been shown to the jury and which are already exhibits in this case. (para. 56)

As others have pointed out, the voir dire decision makes no reference to the reality that the body part once belonged to a body, a person; rather, it is treated as a freestanding hardened piece of tissue, although, of course, the point of introducing it is to help explain the serious injury the accused caused Ms Gladue (and I do believe the Crown considered the actual tissue would be more shocking and therefore persuasive than photos). Commentators also stressed that this treatment of the tissue also showed lack of respect for Indigenous customs on caring for the dead (see, for example, Christa Big Canoe’s opinion, cited above). However, while I acknowledge there may be specific customs at issue in this case (with which I am unfamiliar and the importance of which I do not intend to diminish), I wonder whether there would not have been an outcry had the victim whose preserved vagina was brought into the courtroom been white. I believe there would have been; yet I also wonder whether the Crown would have sought to tender the tissue of a white woman and do not believe it “chance” that the victim was Indigenous. (In saying this, I suggest this might well have been an example of systemic racism, not intended bigotry; indeed, and I recognize many will not accept this to be the case, the Crown may well have believed it was important to make the case of ill treatment of an Indigenous woman as strongly as possible. Regardless, the question of whether it was necessary remains.)

(The jury found the accused not guilty of first degree murder and of manslaughter. The Alberta Court of Appeal set aside the acquittals and ordered a new trial on first degree murder. The Court of Appeal did not refer to the treatment of the tissue when it discussed the forensic evidence. On appeal to the Supreme Court of Canada, the majority of the Court upheld the Court of Appeal’s decision regarding a new trial, but on manslaughter, while the dissent would have ordered a new trial on murder and manslaughter. Again, however, there was no reference to the tendering of the preserved vaginal tissue.)

These cases (and the discussion on writings about pornography) and many others raise similar questions, with specific legal issues arising from the OLRB decision to reproduce the cartoons at the end of the decision, the extensive anti-Semitic and misogynist excerpts from YWN in the Sears decision and the introduction of preserved vaginal tissue in R. v. Barton. A more systematic consideration of when to include representations or descriptions or to admit evidence might be helpful. I suggest the following questions as a beginning of a process to understand these decisions or to explain why it wasn’t necessary to take the path the adjudicators took:

  • What is the relevance of the matter at issue? As far as evidence is concerned, this is, of course, primary, since if the evidence is not relevant, it shouldn’t be admitted, but as far as descriptions or reproductions are concerned, one might ask, exactly how are they related to the decision?
  • When a party is seeking to introduce pictoral representations or videos, are they fundamental to the allegations or are they intended to be merely “helpful” in understanding them? As far as decisions are concerned, how do they aid in understanding the issues or in communicating why material is offensive: is description of the photographs, cartoons or videos sufficient? Is the adjudicator satisfied that the decision will be compelling without including the problematic material and that a reviewing court will understand the reasons sufficiently (for that matter, will the public appreciate why the adjudicator reached the decision they did or why they did or did not allow certain evidence during the hearing or does the adjudicator believe them necessary?
  • Where the issue is the description of offensive material, is there a point at which additional details or excerpts gild the lily? What is the reason for including extensive excerpts of written material at issue in the case?
  • If the evidence may be offensive, offensive to whom? The impact on jurors is already recognized, but the Cindy Gladue situation makes us ask whether there are others whose interests should be considered.
  • Where evidence may be offensive or difficult for the jury to deal with, are there alternative ways of presenting it that will still allow the jury to grasp the point the party seeks to make? It is implicit in Blouin J.’s reasons in the voir dire decision that if he thought it would be too difficult for the jurors to view the tissue, even projected on the screen, he might not have admitted it. And on this point, I note that jurors can be severely affected by what they see in a trial; the clearest example, although rare, is the Bernardo case in which jurors were required to watch videos of sexual assault, resulting in their receiving the opportunity for psychological help at the initiative of the judge (see here), as well as other cases (see here).
  • As far as “others” are concerned, to what extent does a victim’s interests enter into consideration (sexual assault law, of course, no longer permits the defence to introduce certain evidence, for example)? Beyond the living individual, should privacy and dignity be factors in determining whether a party should be allowed to adduce evidence or whether an adjudicator should include certain details in a decision? And if so, how far afield should this consideration go: the introduction of Cindy Gladue’s preserved tissue was certainly hurtful to her family and community, but I think it fair to say that it offended women generally. Again, the question is whether there are alternative ways of reaching the same objective of ensuring certain evidence is before decision-makers.
  • Even if offensive, is evidence or representations or descriptions in a trial or decision unavoidable if a party is to have an appropriate opportunity to make their case or for an adjudicator to be able to explain sufficiently why they reached the decision they did? If this is the result, is there an obligation on the adjudicator to include in their consideration of whether evidence should be adduced or in their decision an explanation of why the evidence needs to be adduced or material included in the decision? Indeed, should the party seeking to adduce evidence that raises these concerns be required to explain why the evidence is necessary, taking into account the factors above?
  • No doubt adjudicators and others involved in these matters already consider much of this in coming to a conclusion. Justice Blouin’s thinking was well reflected in the voir dire decision and he took many of these questions into acount. He did not take into account, however, the impact on others beyond the formal courtroom participants. Would doing so have changed his decision? Putting one’s mind to this consideration, as well as others, in a systematic way, however, would have required a somewhat different analysis. I’m not sure that any of the examples I provided would have had different outcomes if these — and possibly other — questions were given deliberate attention, but perhaps having to explain why they did or didn’t would be worth the effort. Treating these concerns deliberately and seriously might mean that the justice system reflects, in this sense, at least, that human dignity and societal membership are relevant to judicial processes and outcomes.

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