Healthcare, Homicide, and the Scales of Justice in Canada

 

Discover the intricate dance of legality and medicine as we sit down with Barrister and Solicitor Michael Mulligan from Mulligan Defense Lawyers, dissecting a lawsuit that could transform the landscape of healthcare in British Columbia. The Society for Canadians Studying Medicine Abroad, representing future doctors trained overseas, is challenging the residency placement system they believe is unfairly blocking their path. Through an engaging discussion, we navigate the complexities of a system that currently favours domestic medical graduates and the constitutional implications that come with such a divide. This episode promises not just an exploration of the legal battlefield but a broader conversation on the urgent need for more healthcare professionals in our system.

Our conversation then shifts to a poignant and sobering case from Port Alberni, where a mother finds herself entwined in the legal system’s grasp following the tragic death of her son. The nuances of a ‘lesser included offence’ emerge as we scrutinize how a jury’s verdict can alter the course of a person’s life, leaving us to ponder the fine line between manslaughter and second-degree murder. With Michael Mulligan’s expert insight, we examine the shadows of jury decision-making, mandatory sentencing, and the weighty responsibilities tied to firearm ownership.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking Mar 14, 2024

Adam Stirling [00:00:00] Michael Mulligan though joining us now Barrister and Solicitor with Mulligan Defence Lawyers. Morning Michael. How are we doing?

Michael T. Mulligan [00:00:05] Hey good morning I’m doing great. Always good to be here.

Adam Stirling [00:00:08] Always exciting things happening. I see doctors mentioned at the top of our list today, regarding things, a reason we don’t have enough doctors being litigated rather than fixed what’s happening out there?

Michael T. Mulligan [00:00:21] This is a very interesting piece of litigation. And I must say, there’s a half page of lawyers working on it. And the case has been brought by an organization called the Society for Canadians Studying Medicine abroad, as well as two individuals who graduated from medical school outside of Canada or the United States and who are trying to get residency positions, in British Columbia. And residency position would be like, the practical training that a doctor would get after they graduate from medical school as a requirement to then actually become a doctor. It would be the roughly equivalent of, people are familiar with how it works for lawyers, prospective lawyer would need to complete law school, and then they would need to go and article for a year, like work with a senior lawyer to get practical experience in terms of, hands on training before they’d be released on the world.

Adam Stirling [00:01:15] Yes.

Michael T. Mulligan [00:01:16] And so, so a practical training is a very good idea. However, in British Columbia. What is developed is what is described is two separate streams of getting matched for a residency position. Now, we should first of all pause to say that the concept of matching was sort of a decision, you’re going to this hospital, you’re going to this place to get your residency training, is different from how it would work for lawyers for example. If somebody graduated from law school, they are free to go and apply to whatever law firm or senior lawyer or government or whatever it might be. To find somebody who’s prepared to take them on for that year of articling. With medical training there is a process in place which assigns respective doctors two of these positions and what’s developed in British Columbia, that there are two streams, a domestic stream which includes people that have graduated from Canadian or U.S. universities. So domestic is a bit misleading. And then there’s an international medical school’s stream people that might have gone to medical school in Australia, New Zealand or the UK or France or whatever it might be. And what’s happened is that that second stream for the international students has very few positions, and it means that the vast majority of people who graduate elsewhere and want to do their residency in British Columbia cannot get positions, and so they cannot become doctors. We have people who want to come here, who have completed medical school, that want to go on and do their residency here and can’t. And so, this is a legal challenge to that state of affairs. And this is why, you know, at the outset, it’s sort of unfortunate that we have a team of lawyers for all these different organizations fighting about this in court, rather than the more obvious solution, which would be to stop doing this. We need doctors. If you have somebody who’s graduated from a school that would provide that requisite training, get them a position, for heaven’s sake, so that we can get the number of doctors that we need.

Adam Stirling [00:03:27] Yeah.

Michael T. Mulligan [00:03:27] But that’s not what we’re doing. We’re litigating it, and the litigation is being brought on two grounds. One is an administrative law ground arguing that this government decision is unreasonable. This is to say, separate these people into these two “streams” where there is nothing at the end of one of the streams that’s kind of dry. They Argue, that’s just unreasonable. And then the second part of the challenge is a charter challenge saying this is unconstitutional. Now, the, here’s how that works. So, both of those have a potential limitation. And that’s what this decision that just came out was about. It sort of, interim, decision as part of that litigation and the Society for the Canadian Studying Medicine Abroad and these two individuals, brought this claim about against a whole list of people, which is not uncommon in the world of civil litigation, like, you know, the College of Physicians and Surgeons and the Ministry of Health for British Columbia and the University of British Columbia. But also, they brought the claim against a couple of entities, including a thing called the Canadian Resident Matching Service.

Adam Stirling [00:04:38] hmm.

Michael T. Mulligan [00:04:39] That sort of, non-governmental thing that does this matching process they created that has these two streams in it. And so, this particular piece of this litigation, was that organization, the Canadian Resident. Canadian Resident Matching Service. And another thing, the Association of Faculties of Medicine of Canada. Arguing that they can’t be sued in these two ways. And the basis for their claim, first of all, was on the administrative law grounds, arguing this was just an unreasonable decision. There’s no basis for dividing people in this way and preventing people from getting the training. That kind of a claim for a judicial review or a request for a judicial review on reasonableness grounds, can only be brought against a for public decisions like government decisions. You know, if, let’s say, Walmart unreasonably refuses to let you return something, you can’t do a judicial review of their decision not to let you return your plastic tub or something.

Adam Stirling [00:05:38] No.

Michael T. Mulligan [00:05:39] That’s not a government decision. That’s just maybe unreasonable at all. But courts don’t wade into that.

Adam Stirling [00:05:44] Fair.

Michael T. Mulligan [00:05:45] So those entities argued. Well, we this wasn’t really government decisions. And they also argued we don’t really make the decisions. We’re just implementing them. Right. These other entities have told us what to do in terms of creating the two streams, one with water and one without. And so, we’re just doing that. You know, we’re putting in people’s preferences for where they might want to live and work and that kind of thing. And what positions are there? We don’t decide. So, we shouldn’t be part of this litigation. And then the other argument is, and this is an important thing to know, constitutional rights, only attached to things the government is doing. You can’t make a constitutional charter claim against Walmart when they don’t take back your, you know, crappy plastic tub. That’s not a government entity, right? And so, they’re saying, well, you know, not only do we not decide this, but we’re also not really a government entity. We’re just kind of carrying out these, this function. And on those grounds that succeeded. And so, this litigation will go on against all the other groups rather than just addressing the fundamental problem. Instead, the College of Physicians and Surgeons, the Ministry of Health, the University of British Columbia, and the other remaining entities are going to fight about this in court, which I don’t know if that’s the best response to it all.

Adam Stirling [00:07:03] Yeah.

Michael T. Mulligan [00:07:04] Those entities that just do it and don’t really decide, even though one of them might have some, had some role in consulting with the government about these streams. Aren’t going to be part of it because they don’t really decide. And they’re not a government entity. And so, they can’t be subject to charter scrutiny. The other thing decided at this stage is that those two claims, the unreasonableness claim on administrative law grounds, and the charter arguments are going to be dealt with separately, and the court is going to first address the reasonableness claim. Is it reasonable to create these two streams? And then that might answer the whole case, right? If the answer to that is no. Then we don’t have to get into the constitutional argument. If the argument is yes that is a decision within the realm of the reasonable. Then you could move on to the constitutional argument. I must say the reasonableness part has a lot of merit to it. I do at least my eye, reading this.

Adam Stirling [00:08:00] uh-huh.

Michael T. Mulligan [00:08:00] I must say I smiled a little bit, reading about the various constitutional claims. One of the interesting, other interesting elements of all this is that for people who are in the domestic stream, people who went to law school or to medical school in the United States or Canada.

Adam Stirling [00:08:16] Yeah.

Michael T. Mulligan [00:08:16] When they get matched up, do the residency, they’re free to go work anywhere they want. And that’s an interesting thing. Like and that’s a challenge because of course many people would like to be a doctor in, you know, the west side of Vancouver, for example, as opposed to maybe Prince George, people like the weather or they want to go golfing or their family lives or whatever it might be. And so, we allow doctors to basically go anywhere they want and set up. That’s an interesting question about whether that’s good public policy or not. But for people who are in the international stream, which also happens to be dry, if you do get some how down the river, they require anyone who does goes through that stream, even though the people are Canadian citizens and they might have gone to medical school in, you know, Australia rather than, you know, California. The they also require them to sign an agreement that if they do their residency here, they manage to get up the dry stream. They have to enter into a return of service contract, which permits, which compels them to go and set up for a number of years working in a location that the Ministry, Minister of Health tells them to go and work it. And so, on one level, you might say, well, that’s sort of, you know, that’s maybe, maybe that’s good. If the government could direct somebody, hey, we need a doctor in Nanaimo, or we need somebody in Prince George or whatever it might be.

Adam Stirling [00:09:37] Yeah.

Michael T. Mulligan [00:09:37] Rather than letting you know, that’s how we hire people for every other kind of job in the world. You don’t just kind of say, hey, you want a job? You know, doing whatever. Feel free to go anywhere you want to do it. That’s not generally how the government contracts for things. You wouldn’t say you’ve got a contract to fix roads, go do that anywhere you like.  You would be either, hey, we need roads here or. Need this fix there and not just go anywhere you want. So maybe that’s a good idea. Maybe it isn’t. But the argument here is that these two “streams” are treated differently. This is what caused me to smile. There are various arguments, constitutional arguments being proposed about that not being constitutionally permissible under the charter. One of them, of course, would be to smile was an argument that that, requirement to go and work in a smaller community somewhere where the government requires you, they are arguing, would be cruel and unusual punishment under the charter.

Adam Stirling [00:10:33] Wow.

Michael T. Mulligan [00:10:34] That’s strike me. Is that seems like a bit of a stretch. But, you know, you never know. I’m not sure that many people in smaller communities would, you know, take kindly upon the suggestion that being required to work there for a period of time would amount to cruel and unusual punishment.

Adam Stirling [00:10:50] no.

Michael T. Mulligan [00:10:50] But the overall impression of all of this mess is that every dollar and every minute we are spending in court arguing about this stuff is a dollar and a minute lost. And we ought to sort this out if we’ve got Canadians that went to medical school somewhere else, and it was a qualified medical school, and they want to come back here and practice, for heaven’s sakes, put some water in the stream or get rid of the second one, get them into a residency and get them out working. Having them sitting in court, litigating this thing is a total, absolute waste of time. And so that’s what’s going on. It’s continuing. Hopefully, somebody will look at this and just fix it rather than continuing to fight about it. But that’s what we’re doing.

Adam Stirling [00:11:30] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking will continue right after this commercial break.

[00:11:36] COMMERCIAL.

Adam Stirling [00:11:36] All right. Legally Speaking continues here on CFAX 1070 Michael, for our next story, sentencing, it says here after a jury acquits of murder but convicts a mother of manslaughter. What happened?

Michael T. Mulligan [00:11:49] A tragedy. So, this case was a case of the Port Alberni, and it was a mother, who was charged with, the second-degree murder of her adult son. And the essential fact pattern was that the sounds like a troubled household, they lived together in Port Alberni. It sounds like both mother and son had some mental health challenges. And the son was very intoxicated. The son came, running at the mother, who was holding a rifle that much was agreed. And the son wound up being shot and died. So, a tragedy by a by any account. Now, there are several things wrapped up in that, that are, I think, of interest. First of all, there was a jury trial, as is the norm in murder cases. And the jury was charged properly on a concept of what’s called a lesser included offence. And what a lesser included offence is, is that it’s an offence that you must necessarily have committed in order to commit a more serious offence. Right. So that’s what would make something a lesser included offence. And on this fact patter, one of the lesser included offences was the offence of manslaughter. And the significant one of the primary differences between a charge of murder and one of manslaughter is that to be guilty of murder, a person must have intentionally killed somebody else or intentionally caused serious bodily harm they know is likely to result in death. Whereas for manslaughter, if you simply engage in some unlawful activity, and it has the effect of resulting in death, there are a couple of other technical requirements, but that’s the essence of it, not intentionally killing the other person. You could be guilty of manslaughter. And so, the jury was told about all the elements of murder and told about the elements of manslaughter. And the jury deliberated and eventually came back and found the mother not guilty of murder, but instead guilty of that lesser included offence of manslaughter.

Adam Stirling [00:13:54] hmm.

Michael T. Mulligan [00:13:54] Something open to them now. That’s the concept of lesser included offence. Now, the next thing that’s of interest here is that in Canada, juries don’t sentence somebody. That’s a job for the judge.

Adam Stirling [00:14:09] hmm.

Michael T. Mulligan [00:14:09] And so when you have a jury, find somebody not guilty of the offence charge, but instead guilty of, in this case, a lesser included offence. Then the question becomes, how should the judge sentence the person? And that’s interesting, because of course, the jury doesn’t give reasons for their decision. Right. And in fact, what’s talked about in a jury deliberation is private. And it’s an offence to reveal what was talked about. And so, the jury doesn’t come back and say, well, we found that the unlawful thing here was this. And this is why we found you’re guilty of manslaughter and not murder. It doesn’t do that. It just comes back in with a verdict. And so, for the thing over to the judge about, well, what do you do to sentence the person? And the first principle, and this is something the Supreme Court of Canada set out a number of years ago, a case called Ferguson, is that the judge is, first of all, bound to accept, the factual implications of the jury’s verdict. And so, for example, the fact that the jury found the mother not guilty of murder, right, necessarily means the jury concluded she didn’t intentionally shoot her son. Right?

Adam Stirling [00:15:20] Yeah.

Michael T. Mulligan [00:15:21] So it would not be appropriate for the judge to say, well, the jury convicted of manslaughter, but still, I think she did this intentionally. And so therefore, I sentenced you to life in prison. That’s an available sentence for manslaughter.

Adam Stirling [00:15:32] Yeah.

Michael T. Mulligan [00:15:32] But would be completely incompatible with what the jury found. And so, a judge is not allowed to do that. They have to sentence a person accepting facts that are implied by what the jury found to have occurred. And then if it’s ambiguous, like you just can’t tell. How did the jury come to this conclusion? You know, did they come to the conclusion that she, you know, shot him not intending to kill him, like, was trying to shoot him in the foot or something? Or could the unlawful act have been, in this case, careless use of a firearm? And, on that front, both the crown and the defence agreed here, that in part because of a question the jury asked, before coming to their verdict, and they asked a question about, a reasonable person,” test ” when determining whether, the handling of the firearm, could was objectively dangerous.

Adam Stirling [00:16:28] mm hmm.

Michael T. Mulligan [00:16:28] That that question indicated that the jury was coming to its decision based on a finding that the mother had handled the firearm, in an unsafe way. And that resulted in the son’s death. And on that front, there seemed to be lots of evidence for it. The firearm was loaded. There wasn’t a trigger lock on it. She was handling on her evidence. She was handing it back to him and he bumped into her, causing the gun to go off. Well, if you’re handling a firearm safely, you have to assume it’s loaded. You don’t hand somebody a gun that’s loaded, gun pointing at you. You just don’t do that. You don’t story the gun loaded. You have a trigger lock on it. You know, there’s all sorts of things about this which would be just unsafe.

Adam Stirling [00:17:08] Yeah.

Michael T. Mulligan [00:17:09] And so the judge would. Look, the jury must have come to its decision on the basis that she was unsafely handling this firearm. And when they collided, when the intoxicated son collided with the mother, the gun went off. And so that must be how the jury came to its verdict. And so, the judge has to respect that when deciding what the appropriate sentences are. It’s also another thing to note is that in Canada, the, manslaughter doesn’t usually have a mandatory minimum sentence, but it does when it’s manslaughter that’s a result of a firearm. And the mandatory minimum sentences four years in prison. And so even though in this case, there were lots of mitigating factors, the mother had no previous history. There was lots of factors, including her mental health and the son’s mental health and all of what went into this. And there was no reason to think she was going to be some danger in the future to anyone. She was in her 60s and never had done anything before in her life. And didn’t own firearms herself was her son’s firearm. Her evidence was she was trying to give it back to him. But nonetheless, the mandatory minimum sentences four years in the penitentiary. And so that is what she’s been sentenced to. So, I thought it was an interesting case, both in terms of that lesser included offence. What a judge has to do when a jury makes a decision, and then that final element, which was the mandatory minimum. And, what it meant in this case, because, you know, when you come up with these things you have in mind to say mandatory minimums. I think most people would have had in mind some, you know, gang fight or something, not a collision with a mother by a large, impaired son.

Adam Stirling [00:18:54] Yeah.

Michael T. Mulligan [00:18:54] Where the gun goes off. But nonetheless, that’s what we’ve got. And that’s what, the mother has been sentenced to four years in penitentiary.

Adam Stirling [00:19:01] All right, we’ve got three minutes left. Can we do the last one?

Michael T. Mulligan [00:19:04] I think we can.

Adam Stirling [00:19:05] All right, shall we?

Michael T. Mulligan [00:19:06] So the last case involves the concept of security for costs. So, I think we’ve touched on that before. The concept of security for costs is that if you’re suing something, the starting point is if you sue somebody and you sue them unsuccessfully, you may be required to pay part of their legal costs. We have that to deter people from just willy nilly suing people and causing once an expensive dislocation. The flipside also applies if somebody sues you and they’ve got a good claim, and you nonetheless refuse to pay it and go to court, spend a bunch of time flailing about and ultimately lose, you’ve got to pay part of their legal costs. So, the whole system is set up to try to incentivize people to act reasonably. Do not waste time, and money is a good system. Now, one of the issues that can arise is and this comes up in this case, which is what if you’re being sued by a company that has no money.

Adam Stirling [00:19:59] hmm.

Michael T. Mulligan [00:20:00] That that whole incentive kind of goes away.

Adam Stirling [00:20:02] Yeah.

Michael T. Mulligan [00:20:03] If you if they can’t pay, then can you just create some company and sue away with no jeopardy? Well, we wouldn’t want that. And so, we have a provision for the security for costs, which could be an application made to say, hey, I want an order that the person put the potential legal costs in account with the court. So, if they lose, there will be money there, and it won’t just be. Well, I just litigated away for two months. Lost. And then too bad, I folded up my company. And the court is reluctant to do that, but can do it with, like, an individual, like a person who’s suing when they don’t have money. But there’s, you know, there’s some downsides to that. If it means that if you don’t have money, you can’t sue somebody.

Adam Stirling [00:20:46] Yeah.

Michael T. Mulligan [00:20:46] We don’t want that state of affairs. Right.

Adam Stirling [00:20:48] Yeah.

Michael T. Mulligan [00:20:48] So courts are very reluctant to do that with individuals, but not as much with companies.

Adam Stirling [00:20:54] hmm.

Michael T. Mulligan [00:20:54] And so the law reflects that. And essentially the way it works is if you’re being sued by a company and you can make out a prima facie case that the company won’t be able to pay, say, sue you and lose, then the burden would shift over to the corporate entity to show that yes, indeed, they do have assets so that if they lost, they could be compelled to pay the court costs of the other side. Or its more the court costs as a portion of the legal expenses. And so, in the case, it was just decided that is what was applied. And the company didn’t seem to have much. It was a new company. It had some assets, but nonetheless, the, judge ordered that the money be put into, deposited with the court. So, if the company lost, there’d be something to recover from. And so that’s what security for costs is, and that’s why it’s different, when the other side is a company as opposed to just a regular person.

Adam Stirling [00:21:47] All right. Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Pleasure, as always.

Michael T. Mulligan [00:21:54] Thank you so much. Have a great day.

Adam Stirling [00:21:55] All right.

Automatically Transcribed on March 21, 2024 – MULLIGAN DEFENCE LAWYERS