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.

 

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.