Law Times

Page 6 January 8, 2018 • Law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Floodgates open? T he Court of Appeal has determined in Winmill v. Wood- stock (Police Services Board) that the limitation period for an excessive force claim against the police started running at the end of the underlying criminal proceeding. Why is this significant? Lawyers say the ruling marks a change in when the limi- tation period starts for battery claims against the police, in certain circumstances. This is a departure because often the limitation period for battery claims has begun when an alleged injury occurs, whereas with negli- gent investigation claims, it starts when criminal proceedings wrap up. In this particular case, police from the Woodstock Police Service, responding to an altercation at Robert Winmill's home in 2014, were alleged to have struck him. Winmill was charged with assaulting one of the officers and resist- ing arrest. After being acquitted of the charges in early 2016, Winmill filed a notice of action against the police months later, signalling that he would be pursuing damages for negligent investigation and assault. He also later filed a statement of claim related to "battery, abuse of authority as police officers, and negligence in the discharge of police duties," said the ruling. In a 2-1 decision, the Court of Appeal found that Winmill's claims for negligent investigation, which was proceeding, and that for bat- tery, were "inextricably intertwined" and that the limitation period for both claims started at the end of the criminal proceedings. "[I]t strikes me as obvious that the verdict in the appellant's criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant's calculation of whether to proceed with a civil action grounded in a battery claim against the respondents," said the ruling. The ruling has a logical and straightforward sensibility. People may not choose to pursue civil claims against police until they know the results of a criminal matter. Whether the f loodgates open for these types of claims due to a more generous interpretation of the limitation period in this par- ticular case is unlikely because of more practical barriers. LT ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Fake news a problem for all BY SUSAN DELACOURT J ournalists and politicians don't al- ways agree, but for more than a year now, people from both professions have been sounding alarms about so-called "fake news." So, will 2018 be the year when journal- ists and politicians get around to tackling what's seen as one of the greatest scourges of the information age, if not democracy itself? And should lawyers be joining this conversation, too? First, it's probably a good idea to de- fine the problem. Fake news isn't simply unpleasant or unwelcome information, as U.S. President Donald Trump often likes to cast it. Nor is it merely "spin" — communication strate- gies to put people and (basically true) de- velopments in the most f lattering light. Fake news is out-and-out lies, tossed into the stream of current events to cause mischief and damage. Individually, these reports can range from troublesome to dangerous. Collectively, enough fake news can destabilize democracy, creating a state where facts are seen as matters of opin- ion, depending on which political side you're on. As former U.S. president Barack Obama told a Toron- to audience last fall: "If you watch Fox News and your neighbour reads the New York Times, your worlds do not meet." One of the more chilling articles published last year on this subject appeared on vox. com, with a nerdy-sounding headline: "America is facing an epistemic crisis." The author, David Roberts, f loated a disturbing scenario in which U.S. spe- cial investigator Robert Mueller finds enough evidence to lay charges in the Russian election-meddling case — only to have it dismissed as a scam by large swaths of the population on the conser- vative right in America. "What if Mueller proves his case and it doesn't matter?" asked the sub-headline. That article did a good job of high- lighting the other big constituency with an interest in stemming the spread of fake news: the legal community. Journalists and politicians can only really do their jobs properly if the pub- lic is operating upon a set of universal, agreed-upon facts. The same is true of the law, obviously. So why haven't we seen more people being sued for fake news? Isn't this just a new name for good, old-fashioned libel and slander? Again, there have been some interesting pieces writ- ten on this in the United States, as more people wake up to the potential for dem- ocratic chaos. Even Trump, in his pre- president days on the campaign trail, talked about using the law to fight fake news. "One of the things I'm going to do if I win . . . I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money," Trump said at a campaign rally in Texas before his election victory, CNN reported. So far, these tougher laws don't seem to be one of his legislative priorities, how- ever. The American Bar Association Jour- nal tackled the topic in an issue last sum- mer, with experts warning that there is no straightforward, legal way to shut down fake news — often because the sources of it are shadowy or offshore and because the circulation of fake reports is so diffuse. Could one sue someone for retweeting a fake fact, for instance? (If so, one would think it wouldn't take long for the current American president to face a lawsuit.) So the law, on its own, cannot be a cure for the fake-news scourge. But if 2018 is going to be the year in which journalists and politicians start having conversa- tions about shutting down the problem, it would be good to have lawyers around the table, too. Lawyers have often turned out to be strong allies for journalists and politi- cians in tough times — that will no doubt be true if the three professions put their heads together to fight the spread of fake news in 2018. LT uSusan Delacourt is an Ottawa-based political author and columnist who has been working on Parliament Hill for nearly 30 years. She is a frequent politi- cal panellist on national television and author of four books. She can be reached at sdelacourt@bell.net. The Hill Susan Delacourt Susan Delacourt

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