Michael Mulligan – Times Colonist – Give Police Guidance on Traffic Investigations

Michael T. MulliganTimes Colonist opinion piece by Victoria Lawyer Michael Mulligan on the desirability of legislative guidance for police conducting traffic accident investigations on major highways:

http://www.timescolonist.com/opinion/columnists/michael-mulligan-give-police-guidance-on-traffic-investigations-1.2336144

 

Should there be a time limit on highway closures to investigate accidents?

cedar-and-highway-1-in-nanaimoVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing police highway closures for the purpose of accident investigation.

As occurred near Nanaimo recently, police will, with some frequency, close major highways and bridges in order to conduct accident investigations. Typically, the length of the closure will be in some proportion to the seriousness of the accident.

Currently, police are provided little legal direction with respect to the length of such road closures. The investigators will determine how many tests, measurements, and pictures are to be taken before a road is reopened.

In some cases, thousands of motorists will be stopped or diverted in order to conduct an investigation.

While the people involved in a serious accident, or their families in the case of a fatality, have an interest in as complete an investigation as possible, there is a substantial external cost to the thousands of people who are stopped in order to allow for this.

If there was a legislative limit placed on the length of time a highway or bridge could be closed in order to conduct an accident investigation, once medical assistance has been provided to the individual involved, this would afford an explanation for the police if they were criticized for not taking every possible investigative step.

The tradeoff would be that, in some cases, evidence might not be available to support a criminal conviction or to assign civil responsibility for an accident.

On Legally Speaking, the possibility of limiting major highway closures to half an hour for the purpose of accident investigations is discussed.

Listen to the show here:

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.

Legally Speaking – Legal Aid for Mentally Ill

9985094Victoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the inadequacy of legal aid for mentally ill people who are involuntarily committed to hospital.

In British Columbia you can be involuntarily committed to hospital if a doctor believes it is necessary to prevent your mental or physical deterioration or to protect you or others.

Once you are involuntarily committed you no longer have any control over what treatments or medications you are given and you are not allowed to leave.

There is a review process for involuntarily committals that involves a hearing before a three person panel comprised of a doctor, a lawyer and a person who is not a doctor or a lawyer.

Prior to 2002, if you were involuntarily committed and unable to afford a lawyer, the Legal Services Society was required to provide a lawyer or advocate to help with the review process.

In 2o02, the Legal Services Society Act was ammended so as to remove the legal requirement to provide help to poor people subject to civil committal. Instead, the BC Government enters into “Memorandums of Understanding” with the Legal Services Society that specify legal assistance that “may” be provided.

In British Columbia there is a special tax on legal services that collects more that $171 million a year. This money was supposed to be used to pay for legal aid services, including for people who are involuntarily committed to hospital. Unfortunately, the provincial government provides less than half of the money collected to the Legal Services Society. The balance of the money goes into general government revenue.

The Legal Services Society doesn’t have enough money to pay for lawyers or advocates to help mentally people who are involuntarily committed and they are, therefore, required to either represent themselves at review hearing or remain in hospital for months waiting for legal help.

This state of affairs is being challenged on the basis that it violates the constitutional right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.

In order for people to have a fair hearing to determine if they should be kept in hospital against their will, to undergo treatment without their consent, there should be a a fair hearing. Denying this is simply unfair.

A copy of the petition, filed by lawyers Mark Underhill and Kate Feeney, challenging this state of affairs, can be found here: 5296_Petition_Filed-August12-2016

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.

 

Legally Speaking – Realtor Regulation in BC

Choosing-the-Right-RealtorVictoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing changes to the regulation of realtors in British Columbia.

 

A report examining the regulation of realtors in BC has prompted the BC government to announce plans to change the self governance structure it introduced a decade ago.

Rather that being regulated by the Real Estate Council – members of which are elected by realtors themselves – the government will transfer this responsibility to a real estate commissioner.

Maximum fines will be increased and controversial practice including shadow flipping and double ending of deals will be prohibited.

Not addressed in the report but discussed on the show is the need for the regulation of real estate fees to ensure they are fair and reasonable given the amount of work performed by an agent.

The objective of regulator changes should be to ensure agents are encouraged and required to act in the best interests of their clients.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.

Legally Speaking – Courthouse Camp Fire Inspection and Accident Investigation

Tent FireVictoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the Fire Commissioner investigation into the camp on the lawn of the Victoria courthouse and the investigation into an accident involving the driver who struck and killed Cst. Sarah Beckett.

The Fire Services Act allows the Fire Commissioner to issue orders to remove, destroy, or alter premises in order to reduce fire hazards.

Minister Coleman, on behalf of the BC Government, has suggested that the province may go back to court and renew an application for an interim injunction to close the courthouse camp if an order by the Fire Commissioner isn’t complied with.

By way of background, starting at paragraph 102 of his decision, Chief Justice Hinkson addressed conflicting evidence at the first, unsuccessful, injunction application to close the courthouse camp. The affidavit evidence at the first injunction application included apparetly conflicting opinions from the Fire Commissioner and the Victoria Deputy Fire Chief. The Chief Justice found that the conflicts in the evidence couldn’t be resolved by reviewing the affidavit evidence before him.

Typically, where it’s not possible for a judge to resolve conflicting affidavit evidence, a trial with live evidence and the cross examination of witnesses would be the result.

In other legal news, the driver who collided with and killed Cst. Sarah Beckett is reported to have been seriously injured after a vehicle he was in went off the road and rolled over. Media reports indicate that an RCMP officer may have been pursuing the vehicle prior to the accident. If true, this raises a number of issues including whether RCMP pursuit policies were followed.

The Independent Investigations office of BC is reported to be investigating both accidents. This office investigates  reports of police officer related death or serious bodily harm.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

 

 

 

 

Mike Duffy not guilty and Liberal marijuana plans on Legally Speaking

duffy_trialVictoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing Senator Mike Duffy being found not guilty and Liberal plans to legalize marijuana.

In a complete vindication for Senator Mike Duffy he was found not guilty of all 31 charges relating to travel expenses, his residence, and the notorious $90,000 payment by Nigel Wright. Judge Vaillancourt found Mr. Duffy to be an “overall credible witness” but was scathing in his criticism of how the Prime Minister’s office operated.

A complete copy of the reasons for judgment can be found here: April-21-Duffy-ruling

Also discussed is a speech by Federal Health Minister Jane Philpott at the United Nations that afforded some additional insight in to the federal government’s plans with respect to marijuana and other drugs. In addition to announcing that legislation will be introduced in the Spring of 2017 to legalize and regulate marijuana, Minister Philpott spoke about the number of overdose deaths and other harm caused by failed drug policies.

The announcements concerning federal Liberal drug plans followed a decision from the Supreme Court of Canada striking down a mandatory minimum jail sentences that was introduced by the former Conservative government for some drug trafficking offences. The Supreme Court of Canada decision can be found here: LLoyd_en

While it’s not unreasonable that time be taken to ensure that the legalization and regulation of marijuana is done properly, while this is done the federal Minster of Justice should direct Crown Counsel to discontinue the prosecution of people for marijuana offences that will be repealed next year. If this isn’t done, people convicted of marijuana related offence may be in jail after the offences for which they have been convicted have been repealed.

While section 11 (i) of the Charter provides that if a penalty for an offence is reduced between the time of an offence is committed, and the time someone is sentenced, they are entitled to the lesser penalty, this would not help someone who was already sentenced by the time an offence is repealed.

Michael Mulligan - album art v1.jpg Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Legally Speaking – Michael Mulligan – The death of Cst. Sarah Beckett and Interim Injunction Denied for Courthouse Camp

51211-beckett-sm-web-jpgVictoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the release, without charges, of the driver who collided with Cst. Sarah Beckett resulting in her death. The decision of Chief Justice Hinkson to deny an interim injunction to remove the campers from the Victoria courthouse lawn is also discussed.

With respect to the investigation of the accident that resulted in the death of Cst. Beckett several things would be expected. The investigation will almost certainly include the preparation of an accident reconstruction report. This will involve testing and calculation to determine how the accident happened, including factors such as the speed of the vehicles at the time of the collision. A mechanical inspection of the vehicles to determine their condition prior to the accident would also be expected.

Because the driver of the vehicle that collided with the Cst. Beckett’s police car was taken to the hospital following the accident this can complicate things such testing to ensure sobriety. When a driver is confined to the hospital for treatment it can become impossible to obtain breath samples. As a result, blood testing can be used to determine sobriety. This can be done either by way of samples obtained specifically by the investigators for testing, or by obtaining a warrant to seize blood samples taken for medical purposes. In either case, the testing of blood samples can take days or weeks to complete.

Once the investigation is complete a report may be submitted to Crown Counsel, including all of the evidence gathered by the police. Crown Counsel would then review the evidence and determine if criminal or Motor Vehicle Act charges were warranted. The test the Crown will apply is whether there is a substantial likelihood of conviction and, if so, whether it’s in the public interest to proceed.

In other legal news this week, Chief Justice Hinkson denied the application by the Province of British Columbia for an interim injunction to force the removal of the people camping on the lawn of the Victoria Courthouse. An interim injunction is one that would be in place temporarily until a trial is completed. In this case, the trial dealing with the removal of the camp is scheduled to start on September 6, 2016.

In his reasons, Chief Justice Hinkson applied the classic test for the granting of an interim injunction. It is a three part test: 1) Has the applicant demonstrated there is a fair question to be tried? 2) Will the applicant suffer irreparable harm if an injunction is not granted? and 3) Does the balance of convenience favour the granting of an injunction?

The application was unsuccessful as the result of a failure to meet the second two parts of the test. The Chief Justice concluded that the Province would not suffer irreparable harm, in part, because the damage had already been done to the courthouse lawn. The Province provided evidence that cleanup repair of the area will cost between $300,000 and $350,000. The damage has, however, already occurred and there wasn’t evidence that it would get significantly worse if the campers were not removed prior to the trial.

In addition, as the Chief Justice concluded that the balance of convenience weighed in favour of the campers rather than the province. In coming to this conclusion he considered evidence concerning the availability of alternative accommodations and the effects of displacing the campers into various parks around the city. He was not satisfied “on the evidence before me that many of the problems alleged by the plaintiffs are the unique result of the existence of the Encampment, and are not simply part of the reality of homelessness.”

A full copy of the reasons can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/05/2016BCSC0584.htm

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 with Pamela McCall Thursdays at 11:00am.

Street view images of the courthouse camp, as it appeared in March, can be viewed by following this link and clicking on the browse street view images button and then the dots representing the image locations in the map: https://www.google.ca/maps/@48.4221627,-123.3607923,19.27z

Michael Mulligan Times Colonist – Ghomeshi

Michael T. MulliganA response by Michael Mulligan to a commentary, also published in the Times Colonist, by two law school professors who criticized the judge and judgement in the Ghomish case.
The April 7 response by Michael Mulligan
The April 5 comment by professors Gillian Calder and Rebecca Johnson

The full reasons of the trial judge in the Ghomeshi case

RCMP officer sentenced Ghomeshi Acquitted and BC Election Finance

Ghomeshi Police BackgroundVictoria lawyer Michael Mulligan on CFAX 1070 Legally Speaking discussing a Sidney / North Saanich RCMP officer sentenced to six months in jail for possession of child pornography, the judge’s reasons for acquitting Jian Gomeshi, and BC election finances laws that permit unlimited donations.

A Sidney / North Saanich RCMP officer was sentenced to six months in jail following his guilty plea to possession of child pornography. The judge who sentenced Dale Sheets accepted that his actions were influenced by post traumatic stress disorder, resulting from his experiences as a police officer over 20 years. In addition, a psychiatric report concluded that he was a low risk to reoffend. Despite these mitigating circumstances, possession of child pornography now included a mandatory minimum sentence of six months in jail, when the Crown proceeds by indictment. This is the sentence that was imposed, along with a further 18 months of probation.

The reasons for judgement in the Jian Ghomeshi case are also discussed. The trial judge analyzed the evidence of each of the three complaints. He found that each complaint had been shown to be deceptive and unreliable. The complaints had told different stories to the police, the media, the Crown, and in Court. As “Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion.” it was not possible to rely on their claims that they had been sexually assaulted. As there was no other evidence to support contention that the alleged sexual assault occurred, Mr. Gomeshi was found not guilty.

Finally, BC election finance law is discussed. While, for federal elections, people are limited to making a maximum donation of $1,525 per year, there is no similar limit for elections in British Columbia. Premier Clark has been criticized for charging up to $20,000 per person to meet with her at small political fundraising dinners. Such large donations raise concerns about the sale of access to the premier.

While there is no specific limit to how much money a person can donate to a political party in British Columbia, Section 121 of the Criminal Code is discussed. This section makes it an offence to, amongst other things,  pay or accept money to influence a government official. The payment of large sums of money in order to meet with the premier raises concerns about the nature and purpose of such transactions.

Disclosure of the names of people who have paid large sums of money to meet with the premier is not adequate to address the concerns raised by such large donations. It may not be transparent what, if anything, may have been asked for or promised in exchange for a substantial payment.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 with Pamela McCall Thursdays at 11:00am.

 

 

Times Colonist Opinion – Judicial Independence by Michael Mulligan

Michael T. MulliganTimes Colonist Opinion – Judicial Independence by Michael Mulligan

Judicial independence is not a benefit for judges — it is a protection for the weak from the strong, the minority from the majority and everyone from the excesses of government. It is the foundation of the rule of law.

In Canada, we are fortunate: Our judges are not functionaries of the government. In many parts of the world, this is not the case. You do not want to be accused of something politically unpopular in China, Russia or North Korea.

The threats to judicial independence in Canada are not envelopes of cash or promises of promotion contingent on decisions favourable to the government. There are, however, three trends that have eroded judicial independence over the past few years.

The first trend is a movement toward the resolution of disputes by adjudicators or tribunals rather than independent judges. In B.C., this has occurred with respect to most impaired-driving allegations and will soon be the case for strata disputes, some small-claims matters and traffic-ticket disputes. Having to produce evidence, answer questions and persuade an independent judge takes more time and resources than it does to complete a form.

While having a government employee or adjudicator make decisions based on written material or information produced on standardized forms certainly takes less effort than attending a courtroom, this is not an appropriate model for disputes where one of the parties is the government.

Where the issue being decided involves the government wishing to impose a penalty on a citizen, the only way to ensure a fair process is to have someone independent of the government decide the case. Efficiency at the expense of fairness is a cost not worth paying. For many people, the adjudication of a traffic ticket will be their only interaction with the justice system — we should ensure this is done fairly.

The second unfortunate trend has been provincial governments trying to adjust judges’ pay in a non-arm’s-length way.

It is not appropriate for judges to be negotiating with the government over their pay. This would create the most obvious of conflicts as judges decide cases involving the government. If you were having a dispute with your neighbour, you wouldn’t want it to be resolved by someone the neighbour was having a salary negotiation with.

To avoid this conflict, the provincial and federal governments have established judicial compensation commissions. These commissions are supposed to determine the salaries for judges independently based on things such as the salaries of senior lawyers and judges in other jurisdictions.

Ensuring that the salaries of different kinds of judges are similar is important from the perspective of judicial independence, as you don’t want judges to be making decisions with one eye on the possibility of a promotion to a different court that pays more.

Most unfortunately, the B.C. government has, on more than one occasion, refused to abide by the decision of the judicial-compensation commission. The result has been an unseemly dispute over pay for judges that has lasted several years.

The third trend, pursuant to policies of the previous federal government, has been a trend toward legislation that required judges to make orders and impose sentences that do not involve the exercise of any judicial discretion. In the criminal-law context, this has included mandatory minimum jail sentences, orders that victim-fine surcharges be paid by poor people in every case and that DNA samples be provided upon conviction for various offences.

If consequences like these are automatic, it should be transparent that they are being imposed by operation of law and not by a judge in any meaningful sense.

Requiring judges to impose mandatory jail sentences or to order impoverished people to pay victim-fine surcharges cloaks these legislative decisions with an undeserved appearance of judicial approval. This process undermines judicial independence in an insidious way — it requires judges to make orders that are, in some cases, manifestly unjust.

Judicial independence requires both the reality and appearance of independent decision-making. Requiring judges to impose penalties that are unjust unfairly undermines confidence in the independence of judges and the administration of justice.

Michael T. Mulligan is a Victoria lawyer.