From: Robert Stevens <>
To: Lionel Smith, Prof. <>
CC: ODG <>
Date: 28/10/2009 20:27:36 UTC
Subject: Re: Liability of public authorities to apologize

Can an apology be involuntary?

I don't think so. An apology is a voluntary recognition of wrongdoing.

They ought to apologise but can a court order compel a genuine apology?

Making someone going through the form of making an apology like this is

like putting the wrongdoer in the stocks. It is a way of expressing our

condemnation of the wrong which has been done, in a public and humiliating

way, but it isn't really an apology. I approve of any order which seeks to

place the plaintiff in as near a position as can be achieved to the wrong

not having occurred, and this has no necessary connection with making good

by compensation of any loss suffered as a result of the wrong.

We see the same thing in the UK all the time with newspapers issuing

"apologies" for libels. The Sun may go through the form of making an

apology, but it isn't really apologising.


> Earlier this year, a Canadian taxpayer brought a claim in the BC Supreme

> Court against the Canada Revenue Agency for bad faith tax investigation.

> He

> succeeded in negligence and also obtained a remedy under s. 24 of the

> Charter for the breach of his s. 8 right to be secure against unreasonable

> search and seizure. Section 24 provides,


> 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter,

> have

> been infringed or denied may apply to a court of competent jurisdiction to

> obtain such remedy as the court considers appropriate and just in the

> circumstances.


> As you can see in the attached documents, the jury awarded $300,000 for

> negligence, with zero for punitive damages. However, for the s. 24 claim,

> they awarded $1,000,000 and ordered the Minister to apologize to the

> plaintiff. I am not sure whether this has happened before under s. 24 (or

> in

> any other context except perhaps a Seinfeld episode). But others might

> know

> better.


> The Crown has appealed....


> Lionel




Robert Stevens

Professor of Commercial Law

University College London