Courthouse Camping – Injunction Application

No_Camping_Prohibition_Sign_PNG_Clipart-817-2Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the court process which has now been started by the Province of British Columbia seeking an injunction to remove the people who have been camping on the lawn of the Victoria courthouse.

A copy of the Notice of Civil Claim can be found here: BC Application

Chief Justice Hinkson, an experienced trial judge, will hear the application. Chief Justice Hinkson dealt with a similar application brought by the City of Abbotsford in 2015. In that case, the application by the City of Abbotsford was denied as a result of evidence that there were inadequate alternative places for the homeless to go. In addition, the City of Abbotsford was found to have engaged in activity such as spreading chicken manure on the camp which the judge described as “disgraceful and worthy of the Court’s disapproval.”

A copy of Chief Justice Hinkon’s reasons for judgement in the City of Abbotsford Case can be found here.

The application being brought by the Province of British Columbia to deal with courthouse camp is premised in part on the Trespass Act which makes it an offence for someone to enter, or remain in, or engage in an activity on a premises once they have been given notice to leave or stop engaging in an activity.

The efforts by the Province of British Columbia to provide alternative places for the campers to go will also be central to the injunction application. Interestingly, unlike in the City of Abbotsford case, the people camping at the courthouse are free to setup temporary shelters in Victoria city parks between 7:00pm and 7:00am. This, alone, may be enough to satisfy the constitutional requirement that people not be forced to sleep outside without shelter when there are an inadequate number of shelter beds available.

The physical state of the Victoria courthouse camp is also discussed. Below are some 360 degree images from inside the camp taken on March 4th.

Courthouse Camp 360 Picture 1

Courthouse Camp 360 Picture 2

Courthouse Camp 360 Picture 3

Courthouse Camp 360 Picture 4

Courthouse Camp 360 Picture 5

Courthouse Camp 360 Picture 6

Courthouse Camp 360 Picture 7

Courthouse Camp 360 Picture 8

Courthouse Camp 360 Picture 9

 

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.

 

 

Legally Speaking: Courthouse Camping – Marijuana and Pickton Book

judges_tent_03Victoria Lawyer Michael Mulligan on Legally Speaking discussing the continued camping on the lawn of the Victoria Courthouse, a Federal Court decision striking down medical marijuana regulations and a book by convicted serial killer Robert Pickton.

Despite being given notice to vacate the lawn of the Victoria Courthouse, and the provision of alternative housing, many campers have decided to stay. As the property is owned by the province of British Columbia, rather than the City of Victoria, a bylaw requiring tents to be packed up during the day doesn’t apply.

The explanation for the remaining campers staying on the lawn range from a desire to protest the adequacy of social services to those who are there as a result of profound mental health and addiction issues.

If campers decide to remain on the property, the next step will likely be an application by the province for an  injunction requiring them to vacate and for the police to enforce the order.

While the slow and measured approach to the camp is, no doubt, frustrating for residents of the neighbourhood it was appropriate to have taken time to ensure that there are alternative accommodations available for those who wished them.

In other legal news, a Federal Court judge has found the Canadian medical marijuana scheme to be unconstitutional. The federal government has six months to correct the problem. While the decision deals specifically with medial marijuana it may encourage the federal government to expedite their plans to legalize marijuana generally. In the interim, the legal treatment of marijuana is an unsatisfactory mess with arbitrary enforcement varying by jurisdiction.

Finally, convicted serial killer Robert Pickton has written a book. Initially the prospect of Pickton profiting from the notorious case caused outrage. It would now seem that Pickton signed over the rights to the book to another inmate in exchange for him sneaking the manuscript out of jail.

Absent any possibility of Pickton profiting from the book the solution to the problem of potentially odious literature is much simpler: don’t read it.

Michael Mulligan New head b&wMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Michael Mulligan on CFAX 1070 – Legally Speaking – Shadow Flipping

ConflictOfInterestVictoria Lawyer Michael Mulligan on CFAX 1070 Legally Speaking discussing shadow flipping, the death of Antonin Scalia and a man jailed for pretending to be a lawyer.

The fast rising housing market in the Vancouver area has facilitated a practice known as shadow flipping whereby a realtor will arrange to assign a house sale contract, sometimes more than once, prior to the closing date. While realtors can earn commissions on each assigned sale, and profit personally if they are a party to the transaction, the original seller receives no benefit.

The practice of shadow flipping is problematic as it creates a significant incentive for a realtor to act in a way contrary to the interest of the people they are supposed to represent. Realtors have a fiduciary duty to the individuals they represent. That means they should be acting in their best interest.

Because realtors are currently permitted to earn additional commission by assigning a contract they have a financial incentive to encourage a person selling a house to accept a lower price so as to make it easier to assign the contract and earn more money. This incentive is even more pronounced where a realtor is assigning the contract to themselves or a family member.

In order to reduce the risk of realtors acting in a way that it contrary to their client’s interest three changes to the rules governing realtors are proposed:

  1. Prohibiting realtors from acting for both the buyer and seller on the same transaction.
  2. Prohibiting realtors from acting in a transaction where they have a personal financial interest.
  3. Prohibiting realtors from receiving an additional commission for assigning a contract without the permission of the original seller.

If these rules were implemented by either the Real Estate Council or, failing that, the provincial government, it would address the shadow flipping problem and allow the public to have greater confidence that the advice they are receiving from their realtor is in their best interest.

The legal philosophy of Antonin Scalia and the political implications of his death are also discussed along with the circumstances of a man sent to jail for repeatedly pretending to be a lawyer.

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Ghomeshi Trial Submissions Finished

11703745Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the conclusion of the Jian Ghomeshi sexual assault trial.

Submissions by the Crown and defence are now complete and the trial judge has reserved his decision until March 24th.

The trial has been remarkable for the repeated, pointed, impeachment of the complaints based on email messages they sent to Mr. Ghomeshi following the alleged sexual assaults.

While the conduct of complainants following an alleged assault would ordinarily be only peripherally relevant, in this case the complainants were shown to have be untruthful about their conduct when interviewed by the police, Crown Counsel, and when testifying in court. Further, in the case of Ms. DeCoutere, her email to Mr. Ghomeshi, hours after the alleged assault, revealed her state of mind at the time: a desire to have sex with Mr. Ghomeshi.

One of the realities of historical sexual assault allegations is that the only evidence that an offence occurred is that provided by the complaint. There is often nothing else that can be looked to in order to provide corroboration. Accused people are presumed to be innocent and the Crown is required to prove guilt beyond a reasonable doubt. Where a complaint is shown to have lied the Crown may well be unable to establish guilt.

The importance of encouraging the reporting of sexual assaults and the need for the fair adjudication of individual allegations is discussed on Legally Speaking:

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria BC. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Legally Speaking – Court Camping Sheriff Shortage and Ghomeshi

0204ghom2Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking. A busy week for legal events. The Provincial Government is considering new homeless shelters and the legal process to remove the people currently camping on provincial land next to the Victoria courthouse is discussed.

In addition, trials have been interrupted twice over the past week as a result of an inadequate number of sheriffs and court clerks. The underlying issue is a failure to pay court staff adequately so as to attract and retain sufficient staff. The top rate of pay for sheriffs in BC is approximately half of that available for municipal police officers.

Despite promises from the premier dating back to 2011, the absence of adequate court staff continues to impact on the proper functioning of the justice system.

Finally, the Gomeshi trial is discusses. The first complainant was subject to a devastating cross examination when it was revealed that, contrary to her earlier evidence, she sent flirtatious emails to Mr. Gomeshi after the alleges assault. The email messages included a photograph of the complainant in a bikini. As a result of a ban on publication of evidence that would identify that complainant the trial judge refused a media application to release the photograph.

Following reports of the cross examination of the first complainant, the second complainant, Lucy DeCoutere, also revealed, for the first time, her email communications with Mr. Gomeshi. This delayed the start of her evidence as the Crown and defence required time to review the new information she disclosed.

Mr. Gomeshi also released a series of photographs, including the one associated with this post, that allegedly show him with Ms. DeCoutere with Mr. Gomeshi after the date of the alleged assault. Ms. DeCoutere, an airforce captain and actor, previously applied to lift the ban on publication of her identity. She has also been cross examined on differences in the account she provided to different media outlets as well as her failure to disclose sexually suggestive email communication with Mr. Gomeshi prior to the trial commencing.

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. CFAX 1070 – Legally Speaking is live Thursdays at 11:00am.

 

Human Rights Tribunal – First Nations Children

hi-aboriginal-students-852Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the Canadian Human Rights Tribunal decision that the federal government discriminated on the basis of race and or national or ethnic origin by providing inadequate child and family services to First Nations children living on reserve.

First Nations children living on reserve face significant challenges. There are approximately three times the number of First Nations children in government care now than there were at the height of residential school in the 1940s. Aboriginal children are more than twice as likely to be placed in out of home care than other children.

In this context First Nations child and family services agencies are inadequately funded in almost every area of operations.

One of the unfortunate manifestations of the formula used to determine funding for child and family services on reserve is that while funding for services designed to assist families care for children are fixed and inadequate, once a child is apprehended this is not the case.

This formula provides an incentive to remove children form their homes as a first rather than last resort. In some cases, parents are asked to give up their children in order to permit medical or other assistance to be funded. This is contrary to the accepted social work approach that involves applying the least disruptive measures that are in the best interest of the child.

The Human Rights Tribunal process was delayed repeatedly by the previous federal government as a result of late disclosure of tens of thousands of documents, on more than one occasion, and as a result of judicial reviews and appeals challenging the jurisdiction of the tribunal.

The new Indigenous Affairs Minister, Carolyn Bennett, indicated that she agreed with the tribunal decision and said “My job is to go forward and fix these things.”

Discussion on Legally Speaking:

A copy of the decision by the Canadian Human Rights Tribunal: Human Rights Tribunal Decision

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Legal Fees for BC Government Employees

gift-moneyIf an employee of the Province of British Columbia is charged with an offence, as a result of conduct in the course of their employment, their legal fees are paid for by the government. If the employee is found guilty, they are expected to pay the money back.

Following the BC Rail legislature raid case where the government agreed not to seek reimbursement of $6 million in legal fees when the accused political staffers plead guilty there was concern that this decision was influenced by political considerations. Following this scandal, policies were put in place that were designed to regulate the circumstances in which legal fees would be paid for by the government.

Prior to the last provincial election another scandal erupted relating to a government employee being paid to work on the election campaign of a BC Liberal MLA. The BC Liberal Party repaid the province $70,000 for the salary of the employee who was working on the election campaign.

A special prosecutor was also appointed and two people, including the former provincial employee, have been charged with offences pursuant to the Election Act.

The trial for the two people charged with offences relating to this is set for the summer of 2016.

NDP justice critic Leonard Krog has been attempting to determine if the Province of BC is paying the legal fees for the former government employee charged with Election Act Offences. So far, neither freedom of information requests nor filings in the legislation have revealed if this is the case.

As the regulations now specify that employees are only to have their legal fees paid by the government if they are charged with an offence in the course of their employment this is a legitimate inquiry. As the BC Liberal Party has acknowledged that the former government employee was working on the election campaign while being paid by the public, this would seem to be inconsistent with any claim that the alleged offences were in the course of his government employment.

The payment of legal expenses for government employees raises another important issue with respect to the adequacy of legal aid funding in British Columbia. The report with respect to the payment of legal expense for government employees that was prepared following the BC Rail case recommended that legal fees be paid at the same rate as in legal aid cases. This recommendation was not, however, adopted by the government.

The fees paid in legal aid cases in British Columbia are notoriously inadequate and make it difficult for poor people charged with offences to properly defend themselves.

Instead, for provincial MLAs and other government employees, reasonable legal fees are to be paid in order to ensure a fair trial for the accused person. This is an appropriate standard. The problem is that it’s not the case for other people who require assistance from legal aid in BC.

Fair trials should not be reserved for employees of the provincial government. They should be the standard for everyone.

A discussion of this issue on CFAX 1070 – Legally Speaking:

Michael T. MulliganMichael Mulligan is a Criminal Lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

 

ICBC fails to disclose impaired driving report as required

download-1In 2010 the Province of British Columbia introduced new impaired driving legislation. The legislation resulted in most impaired driving allegations being dealt with by way of a 3, 7, 30 or 90 day administrative driving prohibition rather than a criminal charge.

Since 2010 the administrative impaired driving legislation scheme has been the subject of various court challenges based on the fairness of the review process. While the administrative penalties imposed by the scheme are less than what would occur in the event of a criminal conviction for impaired driving, there is an ongoing concern that innocent people may be punished as the review process is much less stringent than in a criminal case.

The central point made by Province of BC officials, including the Attorney General, has been that the provincial impaired driving scheme was effective in saving lives. The Attorney General has been repeatedly quoted as saying that the scheme had saved 260 lives since 2010. Similar submissions were made by lawyers acting for the Province of BC in a Supreme Court of Canada case that reviewed the constitutionality of the legislative scheme.

In British Columbia, we have a Freedom of Information and Protection of Privacy Act. This act requires the province and other public bodies to provide information in their possession upon request from members of the public. It requires that such requests be complied with in 30 business days absent exceptional circumstances.

Despite these legislative requirements and multiple requests, commencing in February of 2014, it took until January of 2016 for a report on the actual effectiveness of the 2010 impaired driving legislation to be disclosed to our office.

In addition to failing to comply with the Freedom of Information timing requirements, the report finally released by ICBC casts serious doubt on the statistical claims made in support of the impaired driving scheme.

The report, dated January 2015 and marked “for internal ICBC use only”, indicates that as a result of a lack of control data and reliable statistics as to the factors that contributed to accidents “… it would not be possible to say whether any observed changes in collision frequency over time were due to the IDI [Impaired Driving Initiative] or to the many other factors (e.g., weather, other road safety enforcement initiatives, traffic density, road improvements, availability of public transportation, etc.”

The report points out that the databased of crash information created by the police included no information as to what factors contributed to, on average, 17% of fatal accidents. This incomplete database further undermined any attempt to assess the effectiveness of the 2010 impaired driving scheme as it can’t be determined if the fatal accidents without any contributing factor information were, in fact, caused by drivers who were impaired by alcohol.

When a legislative scheme is being debated and considered by the courts it is vitally important that this be done on the basis of reliable information. The failure to provide such information in a timely way may have resulted in important decision having been made on the basis of misleading statistics and claims of effectiveness.

The Report on British Columbia’s 2010 Impaired Driving Initiative can be found here: F244353 – IDI Draft Report Jan 2015

The letter covering the report and apologizing for exceeding the legislated time frames for disclosure can be found here: F244353 – Response letter (note: the response letter from ICBC is also misdated – it was sent in January of 2016, not January of 2015)

Vancouver Sun Article

Discussion of issue on CFAX 1070 Legally Speaking:

 

 

 

Michael Mulligan New head b&wMichael Mulligan is a lawyer practicing at Mulligan Tam Pearson in Victoria.

 

Robert Mulligan Q.C. – Pardons for Marijuana Possession

marijuana leaf_2Victoria Criminal Lawyer Robert Mulligan Q.C. commenting on the complexities of pardoning people previously convicted on marijuana offences. Issues include records being kept in multiple locations and how other countries, including the United States, would deal with Canadian pardons if they know about the conviction.

Times Colonist Story

Times Colonist Editorial

 

Homeless Camping at the Victoria Courthouse – Legally Speaking

homeless-campers-in-victoriaLawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing the legal issues arising from homeless people camping at the Victoria Courthouse. As a result of a court case several years ago the City of Victoria is constitutionally obliged to permit homeless people to erect tents or other temporary shelter for use overnight in city parks. That decision was premised on there being an inadequate number of shelter beds in the city. That court case, and the resulting city bylaw, require tents or other shelters to be packed up during the day.

Because the field next to the Victoria Courthouse is owned by the Province of British Columbia, and is not a city park, the bylaw that requires tents to be packed up during the day doesn’t apply there. As the Province hasn’t imposed any similar obligation to pack up tents during the day many homeless people have started to use that space on a continuous basis.

People who live in apartments adjacent to the courthouse have been complaining of problems associated with the large homeless population including noise from fighting, things being smashing, a fire being started, and thefts.

The legal context of the dispute is discussed in the context of a BC Supreme Court decision from October of this year addressing a similar issue in Abbotsford. That decision can be found here: 2015bcsc1909

The essence of the court decisions addressing the constitutionality of bylaws designed to control where and how homeless people can camp is that there must be some lawful way for homeless people to erect temporary shelters if there is an inadequate supply of shelter space or accessible housing. There is no constitutional obligation to permit the erection of permanent camps for use during the day.

Michael Mulligan New head b&wVictoria Lawyer Michael Mulligan on Legally Speaking – live on CFAX 1070 Thursdays at 11:00am