Imagine you’re a judge writing reasons for judgment in a trial where a witness testified the accused person swore and shouted obscenities at witnesses. Do you quote the bad language?
In an August 25, 2016 www.law.com article titled "Quoting Profanity(1), Some Judges Give a F#%&. Others Don't", Zoe Tillman(2) cited various American judges who had pondered whether to quote objectionable language in their judgments. While there are no rules or guidelines on this delicate question, the consensus was that when the language is relevant to an issue it should be quoted.
Canadian judges have a similar outlook. For example, BC Provincial Court Judge Reginald Harris says judges can’t avoid profanity if they decide a quote is necessary to explain their reasons for deciding a case:
"I find the language actually used is sometimes necessary to provide context when I’m trying to help a reader appreciate the circumstances at the time of an event – for example, when I’m describing a heated, angry situation.
I may also use profanity as a piece of evidence I rely on for finding a fact. So in a threatening trial I might say, “the actions were threatening when done in the context of the accused’s earlier statement, “I am going to f...ing kill you.”
Using Judge Harris’ first example, if it’s an assault trial you’re judging, and the accused denies being angry and assaulting anyone, you may decide their language is relevant to the issues of whether they were angry and whether they committed the offence. You may also want to refer to it to convey the context in which actions took place.
Once you’ve decided the accused’s language is relevant and should be mentioned, the next question is: do you quote the objectionable language verbatim or find a way to avoid doing that? There are several common techniques judges use to avoid repeating profanities or obscenities. You could replace some letters with asterisks or other symbols, use a substitute like [expletive], paraphrase to explain the meaning using other words, or use a euphemism like the one used later in this article.
Judge Harris continues,
“Despite this, when it comes to vulgarity I will try and avoid replicating the words. If it can’t be avoided I will only use initials. I think this approach helps readers understand why I found certain facts to have been proved and to appreciate what the environment was at a given time. At the same time, it enables the public to see the type of matters judges commonly deal with while minimizing the use of those vulgar words that are best erased from our vocabulary and serve no purpose.”
On the other hand, judges sometimes decide the exact words are relevant to prove a fact in issue, and quote them. Ms. Tillman reported that profanity has become more common in American court opinions over the years. She found the f-word had been used in about 445 federal appeals court opinions since 2006, almost as often as in the preceding four decades combined. A search of the online legal information database CanLII for the unexpurgated f-word in decisions of all Canadian courts yielded a total of 6877 cases: 4754 in the last ten years, 2062 in the preceding four decades, and only 1 before 1966.
Of course, profanity has become more common on tv, in films, and in every day speech over the last several decades, so the frequency of its use in judgments probably reflects that social change, and not just that judgment writers have become more explicit.
Several American judges told Ms. Tillman they make case-by-case decisions on when to quote offensive language and whether to spell it out. They pointed out that it was an easier decision with profanity than with racial or other slurs – they would go a very long way to avoid repeating the latter because they are so despicable.
What language to use in judgments is just one of the issues Canadian judges wrestle with daily. They balance the need to use both language and tone that maintain a court’s dignity and respect for everyone, with the need to explain reasons for decisions clearly in language that everyone can understand. Both are necessary to foster confidence in our courts and maintain their legitimacy in an increasingly sceptical society.
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1 While there are differences in the dictionary definitions of profanity, swearing and obscenities, the words are used interchangeably here.
2 The article currently seems to be available only to Quicklaw subscribers at ADGN/2016-342.