The Presumption of Innocence, Bail, and an RCMP Officer Appeals His Conviction

 

Join the riveting conversation with Michael Mulligan from Mulligan Defence Lawyers as we unravel the complexities of the presumption of innocence in a special episode that delves into the legal labyrinth following a man arrested for multiple carjacking incidents. Mulligan illuminates the difficult decision points for police post-arrest and lays bare the intricacies of bail assessment, particularly when the individual in question has no criminal history. As we dissect the safeguards of community safety versus an individual’s right to freedom, our exploration will leave listeners with a deeper understanding of the criminal justice system’s inner workings and the philosophical underpinnings of justice.

The dialogue then pivots to a meticulous dissection of Canada’s bail system, where we dissect real and hypothetical cases that bring the theory of law to life. From a mayor’s alleged murder captured on film to repeated car thefts by an individual, the episodes lay bare the tension between the constitutional right to bail and the imperative to ensure public safety. The crescendo of our legal symposium examines a BC Court of Appeal case involving an ex-RCMP officer, scrutinizing the evidence, jury instructions, and the steadfastness of the justice system in upholding a conviction. This episode promises to offer listeners an unparalleled look into the nuances of crime and punishment, evidence analysis, and the weighty responsibilities shouldered by the courts.

 

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 April 25, 2024

 

Adam Stirling [00:00:00] It’s time for a regular segment, Legally Speaking, with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:07] Hey. Good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:10] A story right up at the top of the news. It’s all everybody’s talking about. It’s an issue you and I have discussed any number of times. It’s exasperating for ordinary persons on the outside of the system, looking in, seeing, seeming, but not necessarily proven outcomes like this. The issue of the of the carjacking. What are your thoughts on all this for the alleged carjacking?

Michael T. Mulligan [00:00:31] Sure. Well, obviously, you know, a very upsetting and terrifying event for the people that were involved in it. There’s just no doubt about that. No getting around it. It is, I think, important to have some context, though, in terms of how the system works. And I do have some insight, with publicly available information about the particular case that may help, may help people understand how it is we got here. Because without the explanation, it seems sort of ponderous. Right?

Adam Stirling [00:01:00] Yeah.

Michael T. Mulligan [00:01:01] How could there be?

Adam Stirling [00:01:01] Yeah.

Michael T. Mulligan [00:01:02] Three things from somebody in three days. And the first thing to bear in mind, and most people just fundamentally know this, we have a presumption of innocence in the criminal justice system. We don’t presume people to be guilty. We don’t assume that somebody did something and started punishing them on day one and only wait until later to see whether that’s been proven or not. That the presumption of innocence would ring pretty hollow if somebody accuses you of something and you just go straight to jail and we start punishing you, right. You wouldn’t want to live in in that society.

Adam Stirling [00:01:37] no.

Michael T. Mulligan [00:01:37] And so, that’s really the starting point, right? And so, when somebody is arrested, when the police arrest somebody, the I should say the threshold for doing that is if the police have reasonable grounds to believe that somebody has committed a criminal offence, they can arrest them. It doesn’t mean they necessarily did it. Not everyone who was arrested is guilty or guilty of the thing for which they were arrested. Right. And that’s another thing long experience teaches us.

Adam Stirling [00:02:02] Yeah.

Michael T. Mulligan [00:02:03] And so when somebody is arrested, one of the things the police are required to consider is what they should do with the person. Should they have the person, should the ask the crown to seek the person’s detention, or should they decide to release the person with a court date and conditions? And most cases, including this case, was a circumstance where the this fellow was arrested on the first occasion for allegedly stealing a car.

Adam Stirling [00:02:32] hmm.

Michael T. Mulligan [00:02:32] And the police decided to release him.

Adam Stirling [00:02:35] hmm.

Michael T. Mulligan [00:02:35] So they didn’t seek his detention, he wasn’t brought in front of a judge and the Crown wasn’t assessing any of that. And that’s not terribly surprising, given one of the other things which is unusual about this case. The fellow has an unusual name. And so, I was able to do a search of a database that shows, outstanding criminal cases in British Columbia.

Adam Stirling [00:02:57] hmm.

Michael T. Mulligan [00:02:58] And indeed previous cases where somebody was convicted of something. And one of the really interesting things is this man has nothing else. And that’s unusual.

Adam Stirling [00:03:07] It is.

Michael T. Mulligan [00:03:07] Right to most people that are, you know, going off and stealing a car don’t sort of live, you know, their entire life and then just one day snap and go and do something. So, something unusual is going on here.

[00:03:18] Yeah.

[00:03:19] And the database isn’t perfect. There could be something from some other province that’s possible. Right. So, you don’t need to wait and see.

Adam Stirling [00:03:27] mm hmm.

Michael T. Mulligan [00:03:27] But usually somebody who’s doing this sort of thing is going to have had some, some kind of history. And this man apparently had none. And so, if you’re, you’re the police officer and you have somebody you’ve arrested and you believe they’ve stolen a car, you then have to turn your mind to, well, in what circumstances a person is presumed to be innocent, be kept in jail waiting for their trial.

Adam Stirling [00:03:50] yes.

Michael T. Mulligan [00:03:50] And the trials not going to be next week, that might be six months from now. We don’t have a bunch of judges sitting around on their hands. The courtrooms are full.

Adam Stirling [00:03:59] Yes.

Michael T. Mulligan [00:04:00] You know, you need a judge in a courtroom, sheriffs, and court clerks, crown every all that stuff.

Adam Stirling [00:04:05] Yeah.

Michael T. Mulligan [00:04:05] So there’s it’s not like if you’re charged the trial next week, it might be six months down the road. And so, the assessment would have to be by the police officer. Is there a basis to have this person who is presumed to be innocent, kept in jail for, let’s say, six months waiting for the trial about whether they tried to steal a car.

Adam Stirling [00:04:24] hmm.

Michael T. Mulligan [00:04:25] Well the, the considerations would be things including what are the circumstances that we might keep somebody we presumed to be innocent in prison. And really there are three circumstances in which we do that we can that and these are the considerations on bail. First of all, if it’s determined that it’s necessary to keep the person in jail waiting for their trial before they’ve been convicted of anything in order to make sure they’re going to show up. That’s the primary ground. We need the person to be there.

Adam Stirling [00:04:52] Yeah.

Michael T. Mulligan [00:04:52] And the sort of things that you would look at when deciding, do you need to keep them in jail waiting for their trial? Would include things like, do they have any previous history of not showing up? Obviously, that’s pretty compelling, right? If they didn’t show up last time, that’s going to be a pretty compelling argument they won’t show up this time. Well, if you have a man with no record and no history of failing to show up unless there is something that would point to the fact that, you know, point to the direction this person’s going to take off and you will ever see them again. You know, that’s not going to really apply, right. You would look at other things like, does a person have an address? Do leave ties to the community? Do they have employment? You know, how serious is the charge, right? Somebody who’s charged with murder, you might say, oh, they might flee. They’re facing life in jail.

Adam Stirling [00:05:35] Yes.

Michael T. Mulligan [00:05:36] But car theft for somebody with no record? Probably not.

Adam Stirling [00:05:41] hmm.

Michael T. Mulligan [00:05:41] And then the second criteria is you could detain the person if it is necessary to protect the public.

Adam Stirling [00:05:47] yes.

Michael T. Mulligan [00:05:48] Bearing in mind various things like a witness or preventing interference with the administration of justice. Right. But, you know, public safety, basically. But the analysis of that, just like that first ground has to be analyzed from the perspective of not well, if you just let the person go and say, please come back. How are we, how’s that going to work out? You have to analyze it from the perspective, bearing in mind that both the police, when they choose to release somebody or a judge, if they release them, can put the person on conditions right.

Adam Stirling [00:06:16] yes.

Michael T. Mulligan [00:06:16] Report to appeals and provides or don’t have weapons or, don’t possess drugs or live at this address or whatever they think would be appropriate. And so, you have to ask yourself, is it necessary to keep the person in jail for, let’s say, six months waiting for their trial? You know, is there no way to ameliorate whatever public safety concerns there might be by putting the person on conditions so they could be all the way up to things like house arrest, right. You can’t go out with an electronic monitoring bracelet on you. Right.

Adam Stirling [00:06:43] Yeah, yeah.

Michael T. Mulligan [00:06:44] And so again, for somebody who’s charged with stealing a car who has no previous history, it’s going to be pretty tough to come to the conclusion. Yes. To keep the public safe from car theft, we need to keep the person in prison for six months. That’s not going to happen. Probably. And then the third circumstance in which you can detain a presumed innocent person for months, it was called the tertiary ground. And that one applies if it’s necessary to maintain confidence in the administration of justice. But what does that mean? That could apply in serious cases. Like here’s a fact pattern. Let’s imagine, a mayor is caught on video murdering their spouse.

Adam Stirling [00:07:25] Yeah.

Michael T. Mulligan [00:07:26] And so you’ve got a very compelling case. Very strong case, very serious charge, very clear evidence. We’ve got it on videotape.

Adam Stirling [00:07:32] Yeah.

Michael T. Mulligan [00:07:34] But if you analyze it, do we need to keep them in jail to attend court? Probably not. Look, the mayor, we probably know where they live. Everyone knows what they look like. That’s all I can apply. Well, they need to do it to protect the public. Probably not. It was some kind of a domestic dispute with the spouse. Who spouse was already dead. Is there anyone else at risk? Probably not. But in that kind of a case, you can still say, well, we just need to detain the person. The case is overwhelming. I appreciate they’re not running away, and I appreciate nobody else is in jeopardy. This was a one-off dispute over something, right? But you could still have the person detained in that kind of a case under the tertiary ground. So that’s the universe in which we detain people, even though we presumed to be them, to be innocent. That’s why we detain them. We have to make sure they show up. We have to keep the public safe. And in those kinds of cases, sometimes it’s necessary, even if those other two issues are addressed. And so, with all that background, when this man was first arrested, for the car theft, the police released him, as you would sort of expect.

Adam Stirling [00:08:32] hmm.

Michael T. Mulligan [00:08:33] They would they released him clearly on an undertaking. And that’s apparently you guys, you can look up and see what the charges are.

Adam Stirling [00:08:38] Yeah.

Michael T. Mulligan [00:08:38] Subsequent to that and an undertaking or conditions that the police decided to impose. Right.

Adam Stirling [00:08:43] Okay.

Michael T. Mulligan [00:08:44] They could be all kinds of things, like reporting to a bail supervisor and not being any in any car without the owner or whatever, you know, the whole list of things they might impose. So, he chose to release them, which is not surprising given that you have no record and there’s no basis, apparently, to conclude he’s not going to show up in court. So out goes he then gets arrested the next day.

Adam Stirling [00:09:03] Yes.

Michael T. Mulligan [00:09:03] He has managed to have stolen, cars of two cars. Right. One car escaped of an accident, getting into another car. Right. And so, he’s arrested again. No, that’s a much more challenging circumstance from a bail perspective. Right, because the guy was released the day before.

Adam Stirling [00:09:19] Yes.

Michael T. Mulligan [00:09:20] And so the police did not, in this case, just release him again. They didn’t make the decision to release him as they did on the first occasion. Right. Instead, they had him taken to the courthouse. And, they would have prepared a report for the Crown, who would then have to make a decision about whether, bearing in mind the things we just talked about.

Adam Stirling [00:09:39] Yes.

Michael T. Mulligan [00:09:39] Would those criteria be made out? And it’s not clear whether the, ultimately there was an agreement to release him or whether a judge made the decision to release him. So that’s unclear on the information we have so far. But and so what often happens is the Crown would get the police report, they would look at the person, they look at the person’s circumstances, background, previous history, seriousness of the offence and they would make a judgement call about what do, what’s to be done? Sometimes the Crown would say, look, we agreed to the person’s release, but only if, let’s say they have a surety and they have strict conditions or they’re on monitoring or whatever it might be.

Adam Stirling [00:10:17] hmm.

Michael T. Mulligan [00:10:17] Other times, the Crown might say, we’re just going to ask the judge to detain the person. And then a judge would have to decide whether it’s necessary to detain the person. Now, as I said, it’s a much harder call. And in this case, the wrong one. Right. ultimately to release him. We know that because we don’t have any other allegation of breaking into a house and stealing a wallet.

Adam Stirling [00:10:36] hmm.

Michael T. Mulligan [00:10:36] The next day. So, we know it was the wrong call, ultimately. But that doesn’t mean it was the legally wrong decision at the time. And it’s a very tough job, I should say, for whoever is doing that. Because just think about it. You’ve got dozens of people. You have to make a decision. You can’t hold everyone in jail waiting for their trial. The prisons would pop open, right? Not about week two. That’s just not possible, right? You cannot just. If the justice system operated on the basis of, you know, everyone charged with stealing a car is going to remain in jail for six months while we wait for their trial. We would have thousands of people, not just for car theft, but shoplifting and car theft and all kinds of things. The jail would pop open in about two weeks.

Adam Stirling [00:11:17] hmm.

Michael T. Mulligan [00:11:17] We just can’t do it. We don’t have anywhere near the space to do that. And frankly, we wouldn’t want to live in a society where anyone charged with anything is just held for months waiting for their trial. It just wouldn’t be fair. How does that compute with we’re presuming somebody to be innocent? But it’s a difficult decision to try to figure out who’s who in the zoo here. I mean, just imagine that it’s easy to say in retrospect, because we know the guy has allegedly done something else when he got out again, so we can all see it now.

Adam Stirling [00:11:45] hmm.

Michael T. Mulligan [00:11:45] But put yourself in the position of the person’s, okay, you got this man with no previous criminal record. He is alleged to have stolen a car and then alleged to have stolen another car and failed to stop. Pretty serious right? But it’s not a case for you to look at and say, oh, what fool could come to this conclusion, right? It’s just not. And the other thing you have to remember with the use of bail is not used to punish people or rehabilitate people. And that’s not some change in the law. That’s just fundamental to, we presume people to be innocent. And you have a constitutional right not to be denied reasonable bail without just cause. That’s just the way it is in Canada. We live in a free and democratic society. You don’t use bail to just punish somebody and, you know, anxiously get on with that right now. We don’t want to wait for a trial. That’s not how we do it, nor do we want to live in a place where that is so but, you know, these are difficult decisions. At the end of the day, it’s unclear who made the decision, but it turned out not to be correct.

Adam Stirling [00:12:44] hmm.

Michael T. Mulligan [00:12:44] But that doesn’t mean that that’s a sign that there’s some ship of fools making, decisions that make no rational sense. Right? You know, bearing in mind things like, apparently, about this person. And this was an interesting thing. There was a news report, the news reporter interviewed the woman who had her car stolen.

Adam Stirling [00:13:02] Yeah.

Michael T. Mulligan [00:13:02] And her description. And here’s the description to give you an idea. Right. As I approach the back of my vehicle, I saw a guy, a normal looking young guy, approach me, and the person hoped got in the car took off with it. And so. You can imagine all the things and all that. Well, the description as a normal looking young guy. Well, let’s hope it’s the right guy that we found later, right?

Adam Stirling [00:13:23] And there’s always a chance that it wasn’t one person involved in all three. And we have to maintain that possibility throughout the process.

Michael T. Mulligan [00:13:31] That’s right. And so, you’ve got, you know, a person with no record who’s white, some stolen a car. And the judgement call would be, is this one of the cases where we need to, despite the fact we’re presuming him to be innocent,

Adam Stirling [00:13:43] hmm.

Michael T. Mulligan [00:13:43] And despite the fact you may be sitting there for six months waiting for your trial, is this the person that needs to be detained in that way? That’s the judgement call, right? And you start It’s a human process and it involves some assessment of is this, you know, is this the fact that this would be something which will be, frankly, concerning because there was something the day before, something oddballs going on here.

Adam Stirling [00:14:06] yeah.

Michael T. Mulligan [00:14:06] Assuming person did these things.

Adam Stirling [00:14:08] yeah.

Michael T. Mulligan [00:14:08] But it’s not a case which would be screaming out for, you know, who could possibly you come to this conclusion? Right. You know, if you had somebody with a previous record or some history of failing to show up or some history doing these things, you might have a different assessment of it. I’m sure you would. Right. But on day two, you’re the person faced with, well, he’s alleged to have stolen a car. And then there’s an allegation of doing these things. The policy to detain him. That’s the judgement call. And clearly, as he said, it turned out to be the wrong call. It did. Right.

Adam Stirling [00:14:39] yes.

Michael T. Mulligan [00:14:39] But that’s not to say it was a foolish call or an unreasonable decision at the time. It just wasn’t on the information we have at this point. Keep an open mind to all of it. Again, we don’t know how that call was made or whether there’s some information we’re not aware of. But here we are. And so naturally, when a fellow was arrested again, the result is he’s in custody. He’s probably, you no reasonable prospect the fellow’s getting released. And that’s you know, an unusual thing in the sense that we don’t usually hold people who we presumed to be innocent in jail for months and months waiting for their trial.

Adam Stirling [00:15:13] no.

Michael T. Mulligan [00:15:13] But it’s a balancing. And sometimes that’s just necessary. You say, look, you know, there’s just no conditions we can impose here that will keep people safe or there’s no condition we can impose that will make sure the person shows up. And so yes, I appreciate that. As a matter of principle, he’s presumed to be innocent. But, you know, there’s just nothing else we can do to make sure people are safe. And so sorry, sir, I appreciate you may not have done this. So that may be the determination six months from now, but you’re just going to have to wait in jail while we sort that out. And that’s likely where the person is. That’s likely what’s going to occur here.

Adam Stirling [00:15:45] May 14th is the next date, I think.

Michael T. Mulligan [00:15:50] case adjourned.

Adam Stirling [00:15:50] Yeah. Del Manak says.

Michael T. Mulligan [00:15:50] Yeah And that’s overwhelmingly likely. But that’s the history of this one. And, you know, we’ll have to keep a careful eye on it. But, you know, I said it’s usually helpful for knowing why things happened and how the police made their decision and how the second decision about release was made. You know, we know it was a mistake now, but it’s not so clear, that wouldn’t have been so clear if you were asked to try to determine that then. So, we need to bear that. All in mind.

Adam Stirling [00:16:14] In terms of records in other provinces. Crown can check that right? Or do we have a database that spans the whole country, where somebody in the justice system can look and see if somebody is accused of something or did something in another province?

Michael T. Mulligan [00:16:28] Absolutely.

Adam Stirling [00:16:29] Okay.

Michael T. Mulligan [00:16:29] So we have a national database as well called CPIC. It’ll contain criminal convictions and outstanding charges all across the country. And that’s supported by fingerprints.

Adam Stirling [00:16:37] Okay.

Michael T. Mulligan [00:16:38] We have another system in BC, CSO online. People can go and check that. You can put in a name, and you can see does this person have, and it shows things like outstanding charges, things people were convicted of. You can look it up and see what the charges were when the case is in court and what’s going on. Sometimes there’s even information there that wouldn’t be on the national one. So, it’s in many respects more detailed and more comprehensive in British Columbia.

Adam Stirling [00:17:02] mm.

Michael T. Mulligan [00:17:02] And again, there could be something somewhere else we don’t know about, but it’s a really notable thing that this person apparently has nothing prior to any of this. So, something odd is going on here, whether it’s a mental breakdown or mental illness or drug addiction or some combination of those things. Assuming, again, he did these things, it’s remarkable that you would have somebody who would go through years and years of their life with nothing and then suddenly, launch into doing a whole rash of things over a three-day period. Yeah, that’s not usually the case. Usually, people continue to kind of behave the way they behave before, you know, you don’t have a lot of, you know, 60-year-olds or will through their life not having done anything and then, you know, break into a rash of crime one weekend. That’s not typically how the world works. And so that’s just a notable thing here. The description of them is also notable as well. Normal looking young guy. So, the description is not drug addled.

Adam Stirling [00:17:56] no.

Michael T. Mulligan [00:17:56] you know, dragging their leg behind them. And, you know, when you figure out what’s going on. So, you’ve got a normal looking young guy with no previous criminal record, no other charges outstanding, who’s alleged to have committed these crimes over a three-day period. So that’s unusual. We’ll have to keep an eye on it. And. No doubt that background a lack of history would have played into the decision to choose to release him on the second occasion. Yeah. Again, it’s unclear who made the decision as between Crown and Judge on that occasion. It’s clear the police decided to release him on the first occasion.

Adam Stirling [00:18:31] but not the second.

Michael T. Mulligan [00:18:31] But again, not surprisingly.

Adam Stirling [00:18:32] Okay.

[00:18:33] But not the second. That’s correct.

Adam Stirling [00:18:34] All right. We need to take a break. Michael Mulligan with Mulligan Defence lawyers. We’re back right after this. All right.

[00:18:39] COMMERCIAL.

Adam Stirling [00:18:39] We’re back on the air here at CFAX 1070. We have three minutes and 15 seconds left in our segment today. Michael, what shall we discuss?

Michael T. Mulligan [00:18:46] Sure. I think probably the, there’s an interesting appeal decision that just came out, case out of Vancouver. And it was a former RCMP officer, who was charged there with multiple counts of exposing himself to a person under the age of 16. A problematic and troublesome fact pattern alleged that the officer, off duty, and driving home in an SUV, repeatedly would pull up two young girls wearing school uniforms and allegedly masturbate in his car while looking at them. It prompted then an undercover operation with another police officer dressing up as a school student, who managed to make some observations, but could not see the person’s face, although the person did engage in that behaviour when seeing her and the that officer, the undercover one got, three digits of the license plate. Ultimately, the case was an interesting one. It relied on evidence, including CCTV footage of the officer leaving the RCMP detachment, in a vehicle that was similar to the one observed. And evidence from an expert, who worked for Rogers cellphones, who then got digital evidence about what cell sites, this officer’s cell phone was connected to at the time.

Adam Stirling [00:20:06] interesting.

Michael T. Mulligan [00:20:06] And there was a correlation between the incidents of that.

Adam Stirling [00:20:08] Yeah.

Michael T. Mulligan [00:20:09] And finally, some expert evidence matching up what the person in the car looked like, the one of the legal issues. And he was at a jury trial and was convicted. One of the legal issues was that the judge didn’t give the instructions to the jury from a case Regina versus D.W., which was an instruction about how a jury is to deal with, or a judge should deal with, if it is just a judge, evidence when an accused person testifies. Because this officer testified it wasn’t me, I didn’t do it. Obviously, the jury did not believe that. And that case involves an instruction that is intended to, in criminal cases, make sure that a judge or jury is not just weighing up. Whose evidence do they like better, or is the person probably guilty? And it sets out a process that a judge or jury should go through when assessing the evidence of an accused person who testifies asking, do you believe them? Obviously, that’s much more than a reasonable doubt. If not, might they be telling the truth? That’s kind of what a reasonable doubt looks like. And then if not, that’s not evidence of guilt. They have to go on and analyze whether they’re satisfied, of evidence they do accept. And again, pointing out that if there’s a doubt, they must be found not guilty. The judge didn’t do that. And that was one of the key issues on appeal. But the Court of Appeals, who did that the other instructions the judge did give would have been sufficient in this case, because it wasn’t a conflict between the school kids and the officers. It was just him saying, I wasn’t me. I didn’t do it. It was enough so that they weren’t, the jury would not have been left. The impression that they could convict based on thinking he was probably guilty or weighing up one, you know, witness versus another. And so that’s the disturbing case of the RCMP officer who was convicted. The conviction was upheld on appeal, the same officer now is charged with impersonating a police officer on another occasion and a series of sexual offences back in Ontario. So, obviously a troubling fact pattern, but that’s the latest from the B.C. Court of Appeal.

Adam Stirling [00:22:05] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half or second hour every Thursday. Thank you, Michael, I really do appreciate the elaboration, especially on the first story.

Michael T. Mulligan [00:22:15] Thank you so much. Always a pleasure to be here.

Adam Stirling [00:22:17] All right. Bye now. All right. We’ll take a quick break back after this.

Automatically Transcribed on May 2, 2024 – MULLIGAN DEFENCE LAWYERS