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Richard Dearden and ‘Subversion of Justice’ :: Keeping an Eye on Canadian Lawyers ::

October 19, 2011

I and other members of the public attended the September 6 cross-examination of self-represented defendant, former U. of O. professor Denis Rancourt, by lawyer Richard Dearden.  Mr. Dearden acts as counsel for professor Joanne St. Lewis in the St. Lewis v. Rancourt “house negro” defamation lawsuit (link).

I have posted about Mr. Dearden’s conduct in the cross-examination of Rancourt’s affidavit and in subsequent motion hearings here and here.

Mr. Dearden included my September 11 blog post in his October 6 submission to the court in a motion intended to force the defendant to answer questions from the cross-examination, and he used the post as reason to ask the court Master (judge) MacLeod to order that no one but the plaintiff, defendant, and their lawyers could appear at the next cross-examination.

Master MacLeod ordered exactly that in his October 6 ruling (available here), a move that has some lawyers commenting (link).

You gotta wonder, though, how a lawyer for a plaintiff can reasonably be permitted to exclude the public from cross-examination of a defendant’s own personal information that he agrees should be open to any observer, as was the case for the follow-up cross-examination ordered by Master MacLeod for October 14.

As Justice Perell wrote in a decision last April (link – see par. 147), regarding cross-examinations on affidavits:

“In asking for an undertaking, the examining party runs the risk associated with cross-examinations that the answer to a question may not help his or her case, and unlike evidence from an examination for discovery, the examining party does not control what use can be made of the transcript from a cross-examination of a deponent for an application or motion.

[emphasis added]

So St. Lewis and Dearden didn’t control the information exposed at the cross-examination, the defendant wanted it public, and bloggers wanted to comment.  Sounds fair to me?

Mr. Dearden agreed in principle in 2005, commenting on another case:

What the court says is that ‘All court orders that limit freedom of expression require persuasive evidence that the administration of justice would be subverted without the order,’ and that’s a high test.” – Richard Dearden in The Lawyers Weekly (link)

When will President Allan Rock tell us if the University of Ottawa is funding professors Dearden and St. Lewis to continue saving the “administration of justice” from subversion by critics of the university (link, link)?

3 Comments leave one →
  1. George permalink
    October 19, 2011 11:40 am

    Thanks for giving us a link to the decision Mr. Hickey. It is not posted anywhere on Mr. Rancourt’s blog, so I guess there are some things that he does not want public. (?) In any event, I read the judgment and Mr. Rancourt was refusing to answer numerous questions, while you were in attendance. So I am a bit confused about your argument. Please explain how Mr. Rancourt was pleading for openness by refusing to answer questions during the cross-examination in your presence?

  2. Joseph Hickey permalink
    October 19, 2011 12:31 pm

    Dear George,

    You asked: “Please explain how Mr. Rancourt was pleading for openness by refusing to answer questions during the cross-examination in your presence?”

    1) Mr. Rancourt stated at the Sept. 6 cross-examination of his affidavit that he believed the public was entitled to attend and observe the cross-examination. (The transcript from Sept. 6 available here)

    2) As a witness being cross-examined on a motion affidavit, one is permitted under law to refuse to answer some questions.

    3) The examining party can then motion to force answers if it believes that the refusals are not warranted.

    4) The Oct. 6 motion by Dearden was to force answers to some of Rancourt’s refusals.

    5) The Master (MacLeod) ruled that some of the refusals at issue were warranted and some were not warranted.

    Does that answer your question?

    -Joseph Hickey

  3. George permalink
    October 19, 2011 2:24 pm

    Thanks for replying so quickly. The problem I have, however, is that the thrust of your piece is about the importance of having open forums (such as attending cross-examinations on affidavits), yet the person being cross-examined was refusing to answer and to cooperate — and this led to a judg,ent against him. So what exactly was the public supposed to see, during this session, that was so important? Mr. Rancourt saying “no comment” and “I refuse to answer”?

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