In the wake of a decision that criticized a lawyer – myself – for filing a defamation suit against a person who left a negative Google review, much has been said about the decision to file suit. What has been ignored, however, and is equally important, is what the judge determined about why the review was not reasonably capable of belief.
This issue, which has been overlooked, is more important and chilling than anything else in the judgment.
The judge reasoned that the post was not believable. She stated in particular:
 The cases above make clear that the alleged defamatory statement must be considered objectively from the standpoint of a reasonably thoughtful, well informed person. The whole of the entry must be looked at including how it was written.
 Applying that test to the post in question I note the following:
1) The review is clearly written by a disgruntled client;
2) It was posted in the heat of the moment; and
3) It is written in poor English, and contains spelling mistakes and poor punctuation.
 Given the above I am not satisfied that a reasonable, right-thinking person, thoughtful and informed, would accept the post as being accurate…
One of the three factors that led her to conclude that a “reasonable, right-thinking person, thoughtful and informed” would not believe the post was the fact that it was written poorly. This statement has significant implications for anyone of limited English skills who seeks to access the services of the courts. It is a statement that is deeply connected to a larger social discussion about class, privilege, disability, and race. And it is deserving of commentary.
The defendant in the defamation case has a non-English last name. This too enhances the importance of the statement by the judge that the “poor English,” spelling mistakes, and poor punctuation impacted the believability of the statement.
I will pause here to say that I am in no way suggesting that this judge is classist, privileged, racist, or elitist. What this piece intends to do is unpack a legal finding, and discuss the implications that legal finding has for the justice system as a whole. It is worthwhile to note that no authority was cited for this proposition, and other than an ancient case involving trust law, England being the best country in the world, and Lord Denning, I could think of no cases to support that proposition.
Believability is a significant issue in law. Not only does credibility frequently arise in court proceedings, but many court hearings are conducted on the basis of affidavit evidence, rather than oral testimony. In such circumstances, if the credibility of a person is to be assessed based on the quality of the spelling, grammar, and English skills in an affidavit, our justice system will surely suffer.
It’s no secret that self-represented people abound in our justice system. Legal aid is chronically underfunded, meaning that only those of the most limited means can access those services. There is a huge segment of the population who cannot afford legal fees and are left to represent themselves. If that representation means that they do not have access to a lawyer, with four years of undergraduate work and three years of law school, this may mean that their pleadings, arguments, affidavits, and testimony contains some or many English and grammatical errors.
But that does not mean they should be less capable of belief.
This issue is not just limited to people who file written documents in court. Take, for example, the recent BC Court of Appeal decision in R. v. Mitroi. There, the decision to convict Mr. Mitroi was overturned after the judge failed to take appropriate steps to address Mr. Mitroi’s lack of familiarity with the English language. Rather than order an interpreter, the judge ordered transcripts and attempted to muddle his way through those.
Mr. Mitroi was denied a fair trial as a result.
Believability does not just impact testimony in court. It also underscores criminal prosecutions. For example, one defence to the charge of uttering threats is to show that a reasonable person, fully aware of the circumstances, would not believe the threat. This defence reads very similar to the comments of a judge that a “reasonable, right-thinking person, thoughtful and informed” would not believe the post.
And yet, a person who texted an ex-spouse “u shouldn’t of done that. I’m gonna kill u” – a statement rife with spelling and grammatical errors, in poor English – would rightfully face a conviction for uttering threats. It cannot be that the law would function in a way to allow a person to be acquitted because English no good.
But here we are. The BC Supreme Court noting that a person viewing a post written in poor English, with spelling mistakes and poor punctuation as lacking believability.
Let’s take a step back and ask why a person might write in that way. Well, one reason may be a lack of familiarity with English, as we saw in Mitroi or as may be expected in the Lower Mainland, a multicultural community. Another may be that a person did not complete their education, that they had to drop out of school for any number of reasons, including poverty. Learning disabilities and other disabilities may also prevent a person from being able to write a comment in perfect grammar.
And to be honest, nobody is perfect when it comes to grammar. I have read some judgments of the BC Supreme Court that are rife with error. No hyperlinks here, sorry – I’m protecting the innocent parties. I red-penned my way through The DaVinci Code and they turned that book into a movie. Heck, I once sat in court and watched Crown counsel make straight-faced submissions to a judge about a single error in a 20-page argument and how it undermined the validity of the argument as a whole.
Of course, too, there is internet subculture, where poor spelling and grammar are de rigeur. An owl with the words “O RLY” on it can convey as much meaning as a post that is, like this one, tl;dr.
But when the law functions to place so much importance on the use of spelling and grammar in other contexts – let’s not forget that you can be hanged on a comma – it can result in that importance being translated into areas where it does not logically reflect societal values that should underscore decision-making.
Instead, it creates a legal anomaly: those who are often the most disadvantaged when facing the court and justice system are then disbelieved because of that disadvantage.
And this is where that finding by the judge circles back to the larger social issue. As a plural, multicultural society, we should not accept or expect the disbelief of anyone in any context on the basis of their command of English. In the law of defamation, this is out of place with the requirement that inferential meaning or impression of words is as important as what the words themselves actually say.
I rue the day that this case is cited for the proposition that bad grammar vitiates believability. But, to my criminal defence colleagues, I say this: you’re welcome for the defence on your next uttering threats case.