Apologies and the Law


Apologies and the Law

It is now generally the case in English speaking Canada that an apology cannot be used in evidence in a civil trial. However this is not true in criminal cases. In 2006, British Columbia enacted the Apology Act, S.B.C. 2006, c. 19, the first such legislation in Canada. Other provinces have subsequently enacted similar legislation so that all provinces except Quebec, New Brunswick and Prince Edward Island now provide similar protections. Such legislation had ample precedents in the United States and in Australia. (For a critical history and analysis of such legislation see the thesis of Graham Barr Disingenuous or Novel? An Examination of Apology Legislation in Canada.

Various grounds were argued as reasons to enact such legislation in Canada. Some argued that such legislation was good social policy in encouraging early and less costly resolution of disputes. Some referred to experience in the U.S. particularly in the field of medical malpractice where early apologies to patients coupled with early and fair offers of compensation had dramatically reduced volumes of litigation and the overall cost of compensating for medical errors. Some argued that making an apology for causing harm was simply the “right thing to do” on moral grounds. Some saw the enactment of such legislation as a step in moving towards less adversarial means of dispute resolution.

It is perhaps early days to assess the extent to which the actual experience in Canada with such legislation shows progress in meeting these aims. However, because criminal law in Canada is exclusively under the jurisdiction of the federal government such legislation would have to be enacted by the federal government before such protections would apply to criminal proceedings. In criminal law, apologies made to a victim of a crime or perhaps to a related person are generally considered to be “admissions” which may be used in court to help prove the guilt of the party making the admission. In some situations where the person to whom the apology is made is considered to have some ability to control the laying of a charge, the more stringent legal rules which apply to the proof of confessions must be met.

In a case before the Supreme Court of Canada last year, the charge was one of sexual assault upon a child by a step father. An apology made in an email to the mother of the child was held by the Supreme Court of Canada to be admissible against him. R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688. Such decisions affirm the obvious point that in criminal matters, the courts are applying rules in the treatment of apologies from the rules that now govern civil matters in most provinces. Those considering the advisability of making an apology will obviously continue to bear this important distinction in mind.