The Jian Ghomeshi saga

[crazy canuck]

It is remarkable that he is paying costs without the CBC having to go to the bother of proceeding with the motion to strike.  Normally in these circumstances, prior to a hearing, the defendant is content to simply file the dismissal without costs.  I suppose Ghomeshi was willing to pay to not have to go through a formal pronouncement by the Court that this was vexatious.

[The Minsky Moment]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

[Barrister]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

I actually just got a memo from management a few weeks ago warning us that if civil counsel want to offer to give us transcripts from a civil questioning (our goofy term for pre-trial discovery) to be sure to Just Say No.

[The Minsky Moment]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

[Barrister]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

There is an implied undertaking that all material gathered through the discovery process shall not be used for a collateral purpose.  That includes both oral and written material.

I suppose you could argue that the contents of the Statement of Claim itself could be used in a prosecution, but I seem to recall there's a form of immunity for anything said in pleadings.  I know it is true that you can not attack pleadings outside of the court process itself (i.e. you can't sue someone for defamation citing that you were defamed in a Statement of Claim), but maybe you could try and use it in a criminal proceeding.

[crazy canuck]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

There is an implied undertaking that all material gathered through the discovery process shall not be used for a collateral purpose.  That includes both oral and written material.

I suppose you could argue that the contents of the Statement of Claim itself could be used in a prosecution, but I seem to recall there's a form of immunity for anything said in pleadings.  I know it is true that you can not attack pleadings outside of the court process itself (i.e. you can't sue someone for defamation citing that you were defamed in a Statement of Claim), but maybe you could try and use it in a criminal proceeding.

But the implied undertaking doesnt apply here because it is not the opposing party to the litigation who is using any information from the litigation.  The Crown need not obtain any information provided to the CBC.  In any event I doubt any information was provided given the fact the litigation has ended on a preliminary application.  The information which could form part of the criminal charges comes from the information Ghomeshi voluntarily and publicly disclosed both on his facebook account and in his pleadings.

There is no blanket immunity for what a person says in pleadings except from a claim of defamation.  Pleadings are taken to be admissions of fact and people should therefore be careful what they plead for a whole number of reasons.

[crazy canuck]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

It didnt happen here but yes, affidavit evidence sworn in one proceeding can be used in another proceeding to impeach the witness.  I did that just last week. 

[Barrister]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

There is an implied undertaking that all material gathered through the discovery process shall not be used for a collateral purpose.  That includes both oral and written material.

I suppose you could argue that the contents of the Statement of Claim itself could be used in a prosecution, but I seem to recall there's a form of immunity for anything said in pleadings.  I know it is true that you can not attack pleadings outside of the court process itself (i.e. you can't sue someone for defamation citing that you were defamed in a Statement of Claim), but maybe you could try and use it in a criminal proceeding.

But the implied undertaking doesnt apply here because it is not the opposing party to the litigation who is using any information from the litigation.  The Crown need not obtain any information provided to the CBC.  In any event I doubt any information was provided given the fact the litigation has ended on a preliminary application.  The information which could form part of the criminal charges comes from the information Ghomeshi voluntarily and publicly disclosed both on his facebook account and in his pleadings.

There is no blanket immunity for what a person says in pleadings except from a claim of defamation.  Pleadings are taken to be admissions of fact and people should therefore be careful what they plead for a whole number of reasons.

The fact that it is the Crown, which is not a party to the litigation, which is seeking to use that material doesn't save us.  As I said we were explicitly warned not to accept such material even if offered (by counsel who is breaking their own implied undertaking).

[Barrister]

There could be criminal exposure here.  The civil suit was an albatross in more ways than one.

I don't believe evidence arising from a civil trial can be used in a criminal proceeding.  Caselaw on the right against self-incrimination is completely different in Canada.  There is no such thing as "taking the fifth" in Canada - if you're under oath you're obliged to answer any relevant question.  The flip side however is that the state can not use such a "compelled statement" against you in a subsequent proceeding.

Interesting.
But if he put in an affidavit or voluntary testimony (to establish his case) would that be admissible?

It didnt happen here but yes, affidavit evidence sworn in one proceeding can be used in another proceeding to impeach the witness.  I did that just last week. 

It's going to depend on the particular circumstances of the affidavit, but remember you're not an agent of the state, and your actions don't have to comply with the Charter of Rights.  Mine do.

[crazy canuck]

The fact that it is the Crown, which is not a party to the litigation, which is seeking to use that material doesn't save us.  As I said we were explicitly warned not to accept such material even if offered (by counsel who is breaking their own implied undertaking).

Sure, but go back and re-read what I said.

[crazy canuck]

It's going to depend on the particular circumstances of the affidavit, but remember you're not an agent of the state, and your actions don't have to comply with the Charter of Rights.  Mine do.

Are you telling me that if an accused takes the stand and gives evidence that is directly contradictory to evidence given in another proceeding you cant impeach him with that other evidence?  That just cant be right.

I can undstand why you cant introduce it as an admission if he doesnt give evidence but I dont know why you wouldn't be permitted to impeach his evidence once he gives testimony.  And btw BB, the Charter is used to interpret the common law rules of evidence. 

[Barrister]

The fact that it is the Crown, which is not a party to the litigation, which is seeking to use that material doesn't save us.  As I said we were explicitly warned not to accept such material even if offered (by counsel who is breaking their own implied undertaking).

Sure, but go back and re-read what I said.

But the implied undertaking doesnt apply here because it is not the opposing party to the litigation who is using any information from the litigation.

And I'm not exactly sure what use his Facebook page, or his Statement of Claim, would be useful for other than a general impeaching of his credibility.  He doesn't admit to doing anything specifically with anyone.

This all came out of a comment Joan threw out about how the ongoing civil suit may hurt any subsequent criminal trial.  For the reasons I've outlined, I don't think that was a major consideration.

[Barrister]

It's going to depend on the particular circumstances of the affidavit, but remember you're not an agent of the state, and your actions don't have to comply with the Charter of Rights.  Mine do.

Are you telling me that if an accused takes the stand and gives evidence that is directly contradictory to evidence given in another proceeding you cant impeach him with that other evidence?  That just cant be right.

I can undstand why you cant introduce it as an admission if he doesnt give evidence but I dont know why you wouldn't be permitted to impeach his evidence once he gives testimony.  And btw BB, the Charter is used to interpret the common law rules of evidence. 

Interesting - doing some research there is some very brief latitude about using a prior in-court statement to test for credibility, but not anything that might "incriminate" them:

http://www.canlii.org/en/ca/scc/doc/2012/2012scc59/2012scc59.html

Interesting case (and I Moldaver), but seems pretty limited.  In this case the Accused at trial testified he remembered "90 to 95%" of what happened, while at his exam for discovery he said he had no memory.

That was the sum total of what the Crown was allowed to cross-examine him on.

There is, of course, also room to prosecute for perjury if you've made prior inconsistent statements under oath, but that's a whole other kettle of fish.

[crazy canuck]

The fact that it is the Crown, which is not a party to the litigation, which is seeking to use that material doesn't save us.  As I said we were explicitly warned not to accept such material even if offered (by counsel who is breaking their own implied undertaking).

Sure, but go back and re-read what I said.

But the implied undertaking doesnt apply here because it is not the opposing party to the litigation who is using any information from the litigation.

And I'm not exactly sure what use his Facebook page, or his Statement of Claim, would be useful for other than a general impeaching of his credibility.  He doesn't admit to doing anything specifically with anyone.

This all came out of a comment Joan threw out about how the ongoing civil suit may hurt any subsequent criminal trial.  For the reasons I've outlined, I don't think that was a major consideration.

Ok, you have lost me.

[crazy canuck]

It's going to depend on the particular circumstances of the affidavit, but remember you're not an agent of the state, and your actions don't have to comply with the Charter of Rights.  Mine do.

Are you telling me that if an accused takes the stand and gives evidence that is directly contradictory to evidence given in another proceeding you cant impeach him with that other evidence?  That just cant be right.

I can undstand why you cant introduce it as an admission if he doesnt give evidence but I dont know why you wouldn't be permitted to impeach his evidence once he gives testimony.  And btw BB, the Charter is used to interpret the common law rules of evidence. 

Interesting - doing some research there is some very brief latitude about using a prior in-court statement to test for credibility, but not anything that might "incriminate" them:

Good thing I said impeach and not incriminate.  In fact, I made the point that it couldnt be used to incriminate standing alone