Crown Costs for Notes in Ether , Gold Coin Marriange, and Coffee Shop Slip and Fall
Ever wondered how a simple oversight can cost thousands in the legal world? Join us in this episode of Legally Speaking as we examine a pivotal case in the Canadian criminal justice system where the Crown’s failure to hand over essential police notes in an impaired driving case led to a hefty financial penalty. We delve into the consequences of this negligence, including a rare ruling for costs on appeal, highlighting the critical importance of complete and timely disclosure in ensuring justice. You’ll also get an insider’s perspective on the high stakes involved and the potential financial fallout when legal obligations are not met.
Shifting to family law, we navigate the complexities of a traditional Iranian marriage agreement contested in British Columbia courts. Learn how the judge balanced the maher, or marriage portion, with typical family law considerations to reach a fair decision. We’ll also discuss a significant civil case against a well-known coffee chain, focusing on the Occupiers Liability Act. To wrap up, we welcome Michael Mulligan from Mulligan Defence Lawyers, who offers his expert insights on the stark differences in disclosure practices between civil and criminal cases. This episode is brimming with legal intrigue and detailed analysis that you won’t want to miss.
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.
Transcript of the show:
Legally Speaking Aug 15, 2024
Adam Stirling [00:00:00] It’s time for Legally Speaking. Joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. Morning. Michael Mulligan, how are you?
Michael T. Mulligan [00:00:07] Hey. Good morning. I’m doing great. I should say, other than battling a summer cold.
Adam Stirling [00:00:12] Oh, dear.
Michael T. Mulligan [00:00:13] I’m doing well. And it’s always good to be here.
Adam Stirling [00:00:15] All right, so let’s take a look at some of the legal affairs that are happening in even, indeed, these summer months. It’s his costs rather than a stay of proceedings ordered for a crown, failing to provide disclosure. We’ve talked about disclosure in the past.
Michael T. Mulligan [00:00:29] That’s right. So in in a criminal case, the starting point of this was sort of fundamental to how the criminal justice system, works in Canada. Crown has an obligation to provide, Crown and police, have an obligation to provide disclosure to the defence of evidence and other material that they have in their possession, which could either show that the accused person was guilty or might show that they’re not guilty. Right. You wouldn’t want to have a system where stuff’s being hidden. And so, we have a rule that that needs to be provided. It’s a constitutional impediment and a constitutional requirement and a good one. And so this particular case, the case of two B.C., it’s a case involving an allegation of impaired driving. And at issue was the defence trying to get police notes, which aren’t exactly esoteric or unusual thing. Police are trained as they go about their duties to make contemporaneous notes. And, they are important, because of course human memory is not a video recorder and often the notes of a police officer writes are the very best evidence about what they saw, or he did.
Adam Stirling [00:01:37] Yeah.
Michael T. Mulligan [00:01:37] And so this case started out with a usual request from defence counsel saying, please send me the disclosure material. Material came, but it was missing police notes, which are pretty obvious things. So, the lawyer wrote back to Crown saying, “May I have the notes, please. The notes didn’t show up. The lawyer wrote back to Crown the next month. I’m still waiting for the notes. Can I have the notes? No notes again. Lawyer again writes to Crown. I’m still waiting for the notes. Still no notes. A different Crown counsel gets assigned to the case, and that happens sometimes when the trial dates are scheduled. Still no notes. The lawyer then files a charter application seeking a stay of proceedings for failing to disclose the notes. This is about the fifth time they’ve been requested, this time in that format. Now, I should pause here to say.
Adam Stirling [00:02:25] Yeah.
Michael T. Mulligan [00:02:26] That where the Crown if there is a failure to disclose material that the Crown has that is relevant and important. The most common remedy where there is a remedy would be either an order or common remedies would be either in order to produce the thing right or ultimately a stay of proceedings like, hey, Crown, you can’t continue if you don’t turn that over.
Adam Stirling [00:02:48] Mm Hmm.
Michael T. Mulligan [00:02:48] But here the judge found, no, it wasn’t appropriate to grant the state of proceedings. But instead, what the judge decided to do was to order costs against the crown. Eventually. And I say this is sort of part of the unsatisfactory background here. Eventually, the five pages of notes which the judge concluded were significant because they weren’t consistent, completely consistent, at least with what the officer eventually wrote up in their report. They were contemporaneous and repeatedly requested, and ultimately the Crown’s explanation for not providing them was those notes “had gone into the ether.” Perhaps due to an electronic system. So, there’s just no reason why these things weren’t produced.
Adam Stirling [00:03:33] hm.
Michael T. Mulligan [00:03:33] And it meant that the trial it to get adjourned. And so this lawyer who travelled in from out of town, having requested these things five times, they spent the day arguing about it. And the judge ultimately ordered, rather than staying the proceedings, ordered the Crown to pay the actual costs incurred by the accused for the wasted court time, and having to have the lawyer show up and argue this thing is, you know, the explanation of into the ether is not really a satisfactory one. And so, the judge ordered the Crown to pay $9,421.06. That being the amount she determined was actually the cost produced by the Crown, not turning over the notes in a timely way. Well, that caused the Crown office, I guess, to go into a bit of a spasm. And that happens, I think, from time to time in a bureaucratic system when there’s just no mechanism for you know there’s no kitty sitting there with $9,421.06 in it.
Adam Stirling [00:04:31] Yeah.
Michael T. Mulligan [00:04:32] And the, you know, the usual remedy would be, hey, you can’t proceed with this or hey disclose those things. What are you doing?
Adam Stirling [00:04:37] Yeah.
Michael T. Mulligan [00:04:38] And so this produced the crown going into a bit of a conniption. And they appealed the decision to the B.C. Supreme Court. And so, we have this, appeal decision that just came out the Crown appealing and saying, hey, we shouldn’t have been required to pay the $9,000. And so, it’s a useful review of, well, when can that happen? And the court pointed out as, as the trial judge originally pointed out, that it’s not every failure to provide disclosure in a timely way that’s going to produce a costs award. And so, at a minimum, there has to be circumstances that are a marked and unacceptable departure from the reasonable standards expected of the prosecution. And everyone accepts that, you know, human affairs are not perfect, and sometimes reminders are required and sometimes things are a bit late. And, you know, not every time something’s late is going to produce a cost award.
Adam Stirling [00:05:28] Yes.
Michael T. Mulligan [00:05:29] But here the judge found that the Crown had breached its duty, that this was a very basic thing that the accused counsel had repeatedly written and asked for them, and there was just no adequate explanation for why they didn’t, they weren’t provided. And so, the judge on the appeal found that the cost award was completely appropriate. Now, the next issue they became. What about the costs of the appeal? I smiled as I got to this part of it because the defence position was okay. Well, now you produce these costs, and you’ve appealed it unsuccessfully. We want costs for the appeal too. And so, then the judge on the appeal had to determine, is it a case where there should be additional costs for the appeal? And indeed, there it’s not common in criminal cases that costs be awarded against the Crown. But there are some circumstances where on an appeal there could be costs awarded. And then, there’s a case from the B.C. Court of Appeal from a few years ago, setting out where the what those might be, and they would include where prosecution by the Crown has been frivolous and or while where the prosecutions occurred for an oblique motive like I didn’t like your politics or I didn’t like what you were doing or whatever, you know, some oblique purpose.
Adam Stirling [00:06:43] Yes.
Michael T. Mulligan [00:06:44] Or, where the Crown is taken some random case was a test case and taken some person or person off to the Court of Appeal or something to settle some, you know, novel point of law that really had nothing to do with them. But here, the Supreme Court judge hearing the summary conviction appeal from this decision concluded that, none of those things were made out and so the result of all this, is that the case wasn’t stayed Crown had to pay the costs that they caused, by not turning these things over despite five requests for them. But the defence doesn’t get the costs of the appeal on the basis of it wasn’t really a test case. It was just examining whether the judge should have done what they did. And ultimately the conclusion was, yes, indeed, the judge had done the proper thing. So, no doubt this will be a good reminder for everyone in the system to, you know, make sure you’re doing what you were required. And the explanation that the something is going into the ether probably isn’t going to cut it. And so, reminder to everyone to stay sharp and do what’s required and pay attention to repeated requests for basic things, because otherwise you might have somebody looking into the petty cash box figuring out how they’re going to pay the $9,000 bill that’s been run up for not doing it. So that’s the latest appeal decision on the costs and why they’re important and what can happen when things like that aren’t provided.
Adam Stirling [00:08:10] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. We’ll take our first break and we’ll be back in just a moment with more.
[00:08:17] COMMERCIAL.
[00:08:18] All right. We’re back on the air here at CFAX 1070 as we continue Legally Speaking, Michael Mulligan with Mulligan Defence Lawyers, our last story, talking about ways that perhaps various bodies could pay certain sums that are expected. Does our next story involve my reading this correctly? A contract in gold coins?
Michael T. Mulligan [00:08:36] Indeed it does.
Adam Stirling [00:08:37] Okay.
Michael T. Mulligan [00:08:38] So the background of this is it’s a divorce case of the family law case. And the, many elements of it aren’t too surprising. You know often these things all sort of things like division of family property or the presumption is sort of an equal division of family property that’s surprising to most people. And there can be provision for spousal support where you’ve got one spouse who or more than the other, and things like child support, where is the child going to live, that kind of thing. And so, all of those in this case, there’s nothing particularly surprising. But the interesting wrinkle is that this the marriage which had lasted for some nine years or so and the parties had lived in British Columbia for most of that time. The original marriage was a traditional marriage which took place in Iran.
Adam Stirling [00:09:28] hmm.
Michael T. Mulligan [00:09:28] And it was a traditional marriage in the sense that the marriage was arranged by the families of the parties. And they didn’t know each other or spent any significant time together before getting married.
Adam Stirling [00:09:39] mm hmm.
Michael T. Mulligan [00:09:40] And then there was the part of a marriage process there, entering into this marriage agreement or contract, I guess you call it. Which was in Persian, it was translated here. And there’s this provision in it for a thing called a marriage portion or Maher and it provides this. There’s an obligation for the husband to pay to provide to the wife one volume of the Holy Qur’an, a pane of mirror, a pair of candlesticks, all received by the wife, and 850 gold coins, (Full Bahar Azadi), plus the cost of one Hajj Tamatto travel which remains the husband’s liability to pay to the wife upon her demand. So and so the judge dealt with all the ordinary things, like dividing up the property and child support and spousal support and all these things’ debts. And then he said, well, but one more thing. What about this? I want my gold coins, which would be worth several hundred thousand dollars. Now, the interesting thing is that the husband gave some gave evidence about how he wound up signing this thing, he knew that he signed it. And he said that he showed up at the marriage commissioner for this marriage. And when he read this agreement, he was shocked by it. And he tried to leave the marriage commissioner’s office. He said he was pursued by the claimant and the marriage commissioner, who stopped him and told him, don’t worry, this is just symbolic. It’s to make her father happy and so on that this is. He signed the agreement. Now, the judge interesting there is a previous case in B.C., a couple of them dealing with very similar clauses. And the history of these things is interesting. And sometimes I think it’s sort of, you know, everything old is new again.
Adam Stirling [00:11:29] hmm.
Michael T. Mulligan [00:11:29] The concept behind those kind of figures. And that requirement was the idea that if you had a traditional marriage where you had a woman who was staying at home and raising children and not working, the idea there would be if there was a Break-Up in the marriage, the husband could be required to pay the wife the gold coins. Sort of as a dowry, or it would be like the equivalent of what you might have in spousal and child support in a marriage agreement. Right? People can enter into what people might call it a prenuptial agreement here. Right.
Adam Stirling [00:12:00] yeah.
Michael T. Mulligan [00:12:00] But there’s this concept in the family relations they called a marriage agreement, where people can come to an agreement before they get married. But what will happen if somebody doesn’t work out? And so, this is this thing was sort of a traditional version of that. Now, on the face of it, then you might say, well, you got this agreement you’ve entered into for these gold coins. That seems like a marriage agreement. Off we go. But there is authority for judges to not enforce those kinds of agreements if the result of it would be an unfair outcome. And the judge found here because, in the Canadian legal system, those other things were already taken account of things like spousal support because he was a truck driver, made more money, she was a medical assistant, so he was already required to pay her spousal support for a period of time. Child support, division of, you know, family assets, several hundred thousand dollars in her share of property and so on that it wouldn’t be fair to also get the gold coins. And so, on that basis, the gold coin claim was dismissed. But I thought it was an interesting case because it sort of touches on that, that idea of support and how that can be dealt with in other cultures and contexts. And it’s really, at the end of the day, not too far off from what we have in, in B.C. and in Canada with the idea of a marriage agreement, you know, couple coming to an agreement about what will happen if it doesn’t work out. It just happens to be expressed in a bit of a different way. And so that’s the, that’s the outcome there. And I guess if you were still in Iran and you, got divorced, assuming that’s possible in Iran, you would have a predetermined number of gold coins that you’d be the husband would be required to pay, if the marriages. So that’s the that’s the outcome of the gold coins and the traditional Iranian marriage and divorce in the B.C. context.
Adam Stirling [00:13:56] All right. Up next, a civil case involving documents and document disclosure at a well-known coffee chain.
Michael T. Mulligan [00:14:04] Yes. So indeed, it’s a well-known coffee chain originating from Seattle. It could be anyone. And so, it was the case is actually the well-known coffee chain, one of their many locations in Vancouver.
Adam Stirling [00:14:15] Yes.
Michael T. Mulligan [00:14:16] And it was a sad state of affairs where it would appear clear that a man tripped and fell in a one of those well-known coffee chains and was very badly injured. That that much seems clear. Fire department personnel attended to him. He allegedly suffered a skull fracture and brain hemorrhage. The fire personnel described him, or maybe should describe them as first responders. Described him as babbling, yelling and unable to answer questions. He was taken to the hospital. He needed decompresses craniotomy surgery.
Adam Stirling [00:14:50] ohh.
Michael T. Mulligan [00:14:50] I guess that’s to relieve pressure of the brain. That’s not good.
Adam Stirling [00:14:53] No.
Michael T. Mulligan [00:14:54] And was left permanently disabled, unable to continue his career as an accountant. And so, he was suing the coffee chain and the owner of the property. I guess they’re leasing the coffee chains, leasing the property under the Occupiers Liability Act, alleging that there was some negligence there of some kind, that led to the fall. Right. I guess you’d have to look into things like, you know, was there water on the floor, or did he trip downstairs or what was going on here? Now, the problem for this man was that as a result of this head trauma, he had no memory of what happened. So, he didn’t know what went on. And the case started out actually with his wife writing to the coffee chain asking for things like, you know, do you have any video of this? We’re trying to figure out what happened to my husband. He has no memory of it. Interestingly, the coffee chain responded, a legal assistant responded to the wife when there was eventually just request for the video saying that the video was stored in Washington state. I don’t know how they got that set up. And they required a Washington state subpoena to get it. So, no video was forthcoming. And eventually, the it turned out the video gets overwritten after 90 days, so there wasn’t just some video recording of it. And moreover, the video cameras didn’t focus on the customer area, but on things like the safe or the back-room area. You know a good spot for your cameras a safe would be a good choice.
Adam Stirling [00:16:17] mm hmm.
Michael T. Mulligan [00:16:18] So there wasn’t a video that would just sort it out. And so, then the issue became this. And it goes to how civil cases work as a contrast to criminal cases. In a criminal case if you were the person charged with something like the equivalent of the coffee chain getting sued.
Adam Stirling [00:16:34] mm hmm.
Michael T. Mulligan [00:16:34] You don’t in a criminal case of an obligation to provide disclosure to the prosecutor. Right. It’s a one-way street, like the police and crown have to provide disclosure to you. You don’t have to provide exculpatory evidence you might have in the other direction if you don’t wish to. Now, in a civil case, the starting point is that both sides are required to provide disclosure to each other about evidence that they’ve got. With the idea being we want to get these sorts of claims for money sorted out. And so, you know, only if you’ve got some document or you know evidence is relevant you’ve got to tell the other side about it and give it to them. And both sides have to exchange that. And so, both sides in a civil case have to make up a list showing what all do you have. Right. And then on request, you’re going to turn over a copy of it to the other side. Both parties can do that. And then you can figure out things like, you know, where somebody’s negligent or was there a contractor? What happened here? Now, there’s an exception to that. One of the exceptions, the key exceptions to that general rule that both sides have to turn, you know listed and turn over to each other what they’ve got so we can figure out what’s going on.
Adam Stirling [00:17:41] Yes.
Michael T. Mulligan [00:17:41] Was there a wet spot or whatever is that things that are produced during the course of the litigation are not ordinarily subject to that. Right, like so, for example, if, somebody writes to a coffee chain and says I’m going to sue you, and the coffee chain says oh my goodness. And they you know start interviewing employees and writing a letter to their lawyer and calling their insurance company and doing all the things you might do if you were a large Seattle based coffee chain.
Adam Stirling [00:18:09] Yes.
Michael T. Mulligan [00:18:10] You don’t have to provide the things that you’ve generated once it becomes clear that you’re responding to the claim.
Adam Stirling [00:18:18] Yeah. Litigation privilege. Yeah.
Michael T. Mulligan [00:18:20] Yeah, that’s exactly right. And so, it doesn’t require that the claim actually be started. Like, you doesn’t have to be a notice of civil claim.
Adam Stirling [00:18:28] Yeah.
Michael T. Mulligan [00:18:29] The threshold would be. Was litigation a reasonable prospect at the time the thing was produced?
Adam Stirling [00:18:35] Yes.
Michael T. Mulligan [00:18:36] And so in this case, the judge was looking at and the various things that the plaintiff wanted he wanted things like email correspondence, internal email correspondence with the coffee chain and the store manager that occurred after the receipt of notice of this thing brought to their attention things like interviews of employees, video interviews of the claims adjuster. And a picture that was taken after various things occurred. And so, the judge concluded that all of the things that were being asked for were in that category that you know once it was made clear that there’s you know likely to be some claim from this. Right. Somebody tripped and fell in your coffee chain. And you know you’re getting written to about you know potential liability for that, that those things were captured by that concept of, litigation privilege, that idea that these things were produced, in that context. Now there is a sort of a safety valve there. Even if things are privileged, you know, there could be rare circumstances where things that might meet that general criteria could still be ordered, produced. And the man made the argument that, well, gee, I have no memory of this thing. This is unfair. Shouldn’t they be able to get these things? That didn’t fly here, even though there are rare cases where that can occur. But the judge pointed out that this wasn’t the only way in which the person would be able to, the plaintiff, would be able to get information about, what was going on. And so, there is a separate authority to apply prior to a trial, to do things like require employees, of a corporate defendant to show up and answer questions. And so, the judge pointed out that the plaintiff here wasn’t completely out of luck and unable to try to figure out, you know, whether somebody mop the floor or whether there was, you know, some, you know, some point where everyone fell down with they came to the bathroom or something. And so pointed out that there was a separate application, which was possible pursuant to a different Supreme Court rule, which allows the plaintiff to make an application to require Starbucks employees to attend for the purpose of an examination. And so, what the man will have to do who has no memory after having suffered this terrible head injury is make that application. He would then, even though he can’t get, you know, the transcript that the, you know, the coffee shop got when they interviewed their employees, it would be possible to require the employees to show up for their own interview.
Adam Stirling [00:21:20] Yes.
Michael T. Mulligan [00:21:21] And so, while he is not going to get at everything. It’s there’s still an avenue the man’s not going to be left completely in the dark. But the case, I think, is an important one because it makes clear the distinction between how a criminal case works, where you’ve got an accused person who’s, you know, has a right to remain silent. You don’t have to prove your innocence. You know, we don’t have a circumstance where we hook you up to thumbscrews and try to get you to confess to the bank robbery or something. You know, that’s just fundamental to our criminal justice system works. And that’s a completely different model from our civil justice system. Where the starting point is everyone turns over everything to the other side. They can have a good look at that. And where the, you know, the overarching, starting point is let’s get to the bottom of whether there was some carelessness that caused you to trip. After all, we’re just here fighting over money. We’re not trying to put you in prison. And so that is how this case, I thought, was a good contrast with the first one we talked about, just in terms of how disclosure works and how that’s different in a civil versus a criminal case. So, it’s the latest from the large Seattle based coffee company, whoever they might be.
Adam Stirling [00:22:29] That wasn’t deliberate me saying that it just sort of came out that way. So maybe we’ll find out someday. Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking. Always a pleasure on CFAX 1070.
Michael T. Mulligan [00:22:40] Thank you so much. Always great to be here. Have a great day.
Adam Stirling [00:22:42] All right. You too. Take care. We’ll take a quick break. We’re back right after this.
Automatically Transcribed on August 15, 2024 – MULLIGAN DEFENCE LAWYERS