The Presumption of Death Act and Common Law Voluntariness
What happens when a wealthy business owner disappears without a trace, leaving behind a tangled web of allegations, destroyed property, and unanswered questions? Join us as we explore this real-life mystery with expert insights from barrister and solicitor Michael Mulligan of Mulligan Defence Lawyers. We journey through the intricacies of the Presumption of Death Act, examining a case where millions in life insurance hinge on the final determination of a man’s fate. From the eerie aftermath of a fire in his airplane hangar to the bizarre silence of his bank accounts, the case presents a fascinating puzzle full of legal and investigative challenges.
The episode takes an unexpected twist as we navigate the legal repercussions that arise if someone presumed dead were to reappear while also dissecting the nuances of Canadian law concerning police interrogations and the right to counsel. We also delve into a Court of Appeal case that revisits a first-degree murder trial due to the mishandling of a confession, emphasizing the critical importance of voluntariness in legal proceedings. Through these complex legal landscapes, listeners gain a deeper understanding of how justice is pursued and the vital role of law in unravelling mysteries. Tune in for a thought-provoking episode that promises to leave you with more questions than answers.
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 Oct 31, 2024
Adam Stirling [00:00:00] Love to talk about that. Perhaps it’s time for our regular segment. Joined, as always, by Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking with Michael Mulligan. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:10] Hey, good morning. I’m doing great. It’s good to be here.
Adam Stirling [00:00:12] Some very interesting things on the agenda today. I’m reading up first the Presumption of Death Act. There’s an act called that.
Michael T. Mulligan [00:00:21] Isn’t that a great name for a provincial law? Indeed, we do have the Presumption of Death Act, and it’s the most recent application of it is in a decision which was just released. And the use of the purpose of that act is to deal with the issue of what happens when somebody just disappears and that can matter. In this particular case, the person who disappeared was apparently quite wealthy. He had 16 life insurance policies which would pay out millions of dollars if he passed away. And the fact pattern is just a really interesting one. So, the fact pattern is this wealthy person, business owner, all these life insurance policies, he was confronted there were some allegations made by family members about some historical sexual misconduct 20 years earlier. That’s sort of starting this fact pattern. And this man was confronted with those allegations on December 17th of 2009, at about 1 p.m., the very next day or two days later, the man was at his office, which was located in a large aeroplane hangar in Prince George, about 1500 feet from the main aeroplane airport terminal there, and he was familiar with it and a fire broke out in the hangar. And indeed, there had been some cause for concern about the electrical system in that hangar. On the 16th of December, the day before this man was confronted with the allegations, there had been electricians working in the hangar, BC Hydro had been there and there was concern with the electrical system and whether it could pose some danger of fire. So, fire breaks out and the hangar fire department shows up when the fire department shows up. Initially, some people that are there say, they don’t believe anyone is in the building, but this man’s truck is parked out front. Several of the firefighters go into this very large hangar and they look for people there and they see no one in the building. After they go into places, including this man’s office, there is thick smoke and different firefighters have different evidence about how far they could see, but they see the man nowhere in the building having searched it. The fire spreads rapidly in the hangar and the fire department eventually has to evacuate the hangar after the fire spreads into the ceiling and the building is essentially destroyed. After that, no one can find this man. And there are very careful searches conducted. There’s an initial search. The fire department takes two days to go through the rubble from the building. They find no human remains and no personal artefacts, rings, or other material like that. There’s then a subsequent search of the building, which goes on for some eight days. They’re using dogs. They’re going through things. You know, it sounds like just an absolutely painstaking fashion. Again, no sign of the person, no sign of human remains, no sign of things from him. Nothing is found. His truck remains outside the after a couple of days, they released the truck to a family member. It’s frozen solid. This was in the winter. It’s -30 outside. It gets towed to a garage so it can be unthawed. So, it can be opened in the truck. They find the man’s briefcase, birth certificate, passport, day timer, computer, wedding ring, wallet, credit cards and driver’s license. There’s also a suitcase, their clothing, a pair of shoes. No sign of the man. an 8 day search was conducted with the benefit and assistance of an expert, a doctor, and that person’s evidence is that there were no remains found there and that it would not be possible for somebody whose remains to have been completely destroyed by this kind of a fire, given the temperature of it and how those things work, he’s an expert in that area, it causes the RCMP to conduct a financial investigation. They look into his credit cards. None of them have been used. They make inquiries of flight manifests. He doesn’t appear to have got on any plane. They look to see whether there are any cars rented. There were none. They checked with taxi companies. No one picked the man up. The man was also apparently not in good physical condition. And it was -30 and he had light clothing on. And so, the family’s view is there’s just no way this person could have walked away somewhere. Nonetheless, after hearing from the expert in the eight day search, he says it’s impossible that the remains would have been destroyed completely in this kind of a fire, the conduct, a search of all the surrounding areas in case he like went off into the woods or passed away somewhere else, nothing. They then follow up with investigations to see whether this man had used any of his bank accounts in the years following. None of them were touched. They had a forensic accountant go through company records to see things like, could this man have been saving money or had cash or something, he didn’t report. There was no sign of that. There was very interestingly, a short time after this, a single report from a man in a town nearby, who knew the man who disappeared, claiming that he saw him at a Home Depot parking lot, and he reported it. And when he reported it, he said that he looked the same as the man did before, and he still had a distinctive limp and his hat in a usual way that he wore it. So, it sounds like this detailed description of him saying that he got into this particular vehicle. The trouble was the family member said he did not have a distinctive limp, nor did he wear his hat in a sideways fashion. So, there was some doubt about whether that person’s account was accurate. Nonetheless, for years, they were efforts to follow up. There was no contact from this man in the future, no family member was ever contacted, no indication of any financial transactions of any kind. And we’re now something in the order of 14 years plus almost 15 years after this man disappeared. And so, this application is made under the Presumption of Death Act. And the Presumption of Death Act has some statutory provisions that allow an application to be made to a judge to declare the person dead. And where that kind of an application is made, the person making the application must provide evidence that they have not heard from the applicant, have no knowledge where they are, no reason to believe the person is living, no grounds to exist to support the idea that person is not dead. And I should say, interestingly, even without that act, there is a common law presumption that if somebody is just missing with no contact for seven years, there can be a determination that a person has passed away. But this act allows for there to be like a formal declaration and issuance of what would amount to the equivalent of a death certificate. And that, of course, very much matters because the man is very wealthy and has all of these life insurance policies that were in place. Another interesting thing, he hadn’t taken out any large amount of life insurance. Prior to that, the judge said two years earlier he took out a $370,000 life insurance policy, but that was a trifling amount compared to the other policies. So, there is no indication of that. And where so where there’s this kind of a circumstance that a judge is making a decision under this Presumption of Death Act. There are a number of things which can be looked at, like the circumstances where the person disappeared is the person who has any history of fraud, because sometimes people will commit fraud pretending to disappear to collect on life insurance. This person had no history of that. The other thing that can be looked at are things like was there valuable property abandoned? Indeed, there was. The man was very wealthy. Lots of money in his bank accounts. These life insurance policies, assets, businesses, all of this, none of it touched. And so, the judge looked at a variety of things. He looked at the fact that he left the wallet, the wallet was left in the truck with all of his credit cards and so on. His birth certificate and passport were left behind. The truck was abandoned. The fact that the RCMP had searched the flight manifest, taxi passenger list, rental car companies, the fact that he was wearing light clothing, and it was -30 out, it was unlikely he could have just walked away. His medical, his physical condition, family said he’s not capable of walking long distances. And the fact that he had no history of fraud, he was not involved with other criminal acts, with organized crime. You know, other things I guess, might get you concrete bits of dumped in the ocean or something.
Adam Stirling [00:09:19] hmm.
Michael T. Mulligan [00:09:19] No indication of that. There was no evidence that he managed to squirrel away money that he could have lived on undetected and touching any of his known financial assets for 14 years. In fact, there’s no indication that he planned to disappear. He had some plans to spend family with Christmas with his family. And the judge pointed out that the older man had been confronted with these allegations of sexual impropriety for many years earlier. But that was only two years, two days before this fire and the disappearance occurred. Also, the judge also reasons this man wouldn’t have had time to plan some sophisticated escape plan or some other identity or something. And so given all of that, despite the fact that the exhaustive searches didn’t turn up anything, despite at least one expert saying it would just not be possible for somebody whose body to be completely destroyed in this kind of a fire. And there was nobody discovered, despite the fact that the fire fighters who were there indicated that they had gone into this man’s office. They did not see him in the office. And despite all those factors, which would give you a cause of what happened here. Right. The older man might have had some might have been disappointed about the allegations as possible. One theory was maybe he lit the building on fire himself. But on the other hand, the day before he was confronted with these allegations, there were B.C. hydro and electricians there concerned about possible fire hazards from the electrical system. So, it could have just been a coincidence and an accident. And so, it remains a mystery. The body was never found, despite all manner of inquiries and searches and forensic examinations and looking at material DNA, dogs and all the things you’re going through. Days picking through material by the fire department, the RCMP, forensic experts, and just nothing. And so, to some extent, it does remain a bit of a mystery what happened to the man. But after 14 years and no contact and no financial transactions and only that one sighting, which had some questionable elements to it, because the description of the man who’s said he saw him seemed certain and describe some characteristics that would seem unusual. The judge said, well, he wasn’t prepared to, that didn’t cause a doubt because of the family’s evidence that he didn’t have a limp and didn’t wear his hat in a distinctive fashion. So, who knows who that man saw? And despite all of that, the eventual conclusion and I think in large part because of all of that exhaustive work searching and the time that’s gone by, the man you know, at the time of his disappearance, he would have he was 55 and he would now be 69 years of age. And so given all of that, the judge issued the decision under that Presumption of Death Act and the consequence, and this was eventually unopposed by the insurance companies who also did investigations because, of course, they don’t want to have to pay for life insurance if the man’s not dead. They had done their own investigation searching for the man and found nothing. And so eventually, even though they started by opposing it, they dropped their opposition to it. And so, the result of this declaration under the Presumption of Death Act, is that the 16 life insurance policies will pay out and there will be many millions of dollars for all of the family members left behind. And still questions remain about what happened. That’s the Presumption of Death Act and how we deal with it when somebody just disappears.
Adam Stirling [00:12:49] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, will continue in just a moment. On CFAX 1070.
[00:12:56] Commercial.
Adam Stirling [00:12:56] Back on the air here at CFAX 1070 legally speaking with Michael Mulligan for Mulligan Defence Lawyers Michael. I got a text during the commercial break, and I wasn’t sure if you knew the answer. With the Presumption of death act to this man now having been essentially declared dead under the law, what would happen if he just showed up some day?
Michael T. Mulligan [00:13:14] It’ll be a very complicated appeal. So, yes, there could be all sorts of things that might have to be unwound if the man turned up. Of course, you’d have claims from the insurance companies wanting to get their money back.
Adam Stirling [00:13:28] ahh.
Michael T. Mulligan [00:13:29] you’d have all kinds of other things that would happen. The man had a will and actually in his will, he’d written a letter asking for forgiveness from his family about the things that he’d done, not specify what they were. The implication was that might have had some reference to the allegations of sexual impropriety.
Adam Stirling [00:13:46] hmm.
Michael T. Mulligan [00:13:46] And so other things would occur as well. By operation of the Prevention of Death Act, like his will would then take effect all of his assets will then be dispersed to all of the beneficiaries. And, of course, you know, you might have a pretty hard time trying to put that back in the box.
Adam Stirling [00:14:01] yeah.
Michael T. Mulligan [00:14:02] After it happened. And so, the effect will be insurance will payout, will come into effect. You’ll have an executor, assets will be distributed, you know. And so if he was to turn up, I guess there has to be some effort to try to put that all back where it was. But the family members will be moving in at this point following the following declaration.
Adam Stirling [00:14:22] All right. Very well. Up next, is his Court of Appeal orders a new first degree murder trial following acquittal based on the exclusion of an inculpatory statement, I don’t even know what that word means.
Michael T. Mulligan [00:14:33] Says confessing. And so, the essentially the case involves this concept of the application of the principle of common law voluntariness. And I explained the context in which this came up.
Adam Stirling [00:14:46] Okay.
Michael T. Mulligan [00:14:47] So it’s a murder. It was a murder case. It was a very tragic case where a couple of people were shot in their home. And the Crown’s theory of it is that it was an attempted hit on a couple of gang members involved in the drug trade who used to live there but moved out to find out who the prior tenants were before you rent a place, maybe that’s the takeaway. And there were two rival gangs, both involved in drugs. The particular incident was in Cranbrook, and originally the accused, in the murder trial, had been convicted several years after the fact with conspiracy to murder these people. And he was sentenced to 13 years. And he served a good part of that. But a number of years later, he got charged with the actual murder, the theory was that the conspiracy had ended when the person who was supposed to carry out the murder didn’t do it. And so, this man wound up being arrested and charged with the actual murder of these two people in the residence. And people are probably familiar with the idea in Canada, sort of like in the U.S. when you’re arrested, you need to be told about your right to counsel, right?
Adam Stirling [00:15:56] Yeah.
Michael T. Mulligan [00:15:57] And in Canada, there’s that’s an obligation to be told about that. And if a person says, yes, I want to do that, they should be given a reasonable opportunity to retain and instruct counsel. So, it’s not one phone call or one court or something. It’s an opportunity to retain counsel, speak to them and get legal advice. Unlike in the U.S., in some cases, in Canada, there is no right to have your lawyer present. Sometimes people from the movies think, oh yes, I don’t want to talk to the police until my lawyer shows up.
Adam Stirling [00:16:24] Yeah.
Michael T. Mulligan [00:16:24] That’s never happening in Canada. You have a chance to get advice from the lawyer but not have the person sitting there. And in fact, you will not have the person sitting there in Canada. In the Canadian context, you would just turn that lawyer into a witness about what happened. And furthermore, that there’s no right to that, at least in the current state of the law.
Adam Stirling [00:16:41] Interesting.
Michael T. Mulligan [00:16:42] And after somebody said it, when the person asked to speak to a lawyer, the police have to stop trying to ask them questions or gather evidence from them until they’ve had that chance to speak to a lawyer and get legal advice. Typically, in a criminal case, it’s going to be quiet, but in a longer, more eloquent description of why that’s. And the police, after that’s done, are free to try to ask the person questions. The person’s free to not respond. And there’s no downside to not responding. In fact, things that you say that are helpful to you cannot be used to assist yourself, anything you see is unhelpful can be used to assist in convicting you, which is why the advice was going to be don’t talk.
Adam Stirling [00:17:20] Yeah.
Michael T. Mulligan [00:17:20] But that’s hard to follow, that’s hard to carry out. Now, there’s a separate principle in Canada, which is referred to as the common law voluntariness principle. And the idea there, and it’s separate and pre-dated even having the charter and the right to speak to a lawyer when you’re arrested. And the idea with the common law voluntariness issue and its common law, is the idea that if the police manage to extract a confession from somebody by, for example, you know, threatening them. Right. Or promising them something in a way that causes them to think, oh my God, I better say something like, let’s say police said to you, you better confess to the murder or I’m going to shoot you. The person says okay I did it right. Or conversely, if you confess right now, you’ll get a very short sentence, I promise you. Then the person is okay, fine. I did it right.
Adam Stirling [00:18:14] yeah.
Michael T. Mulligan [00:18:14] Those things could be viewed as not voluntary in the sense that the person didn’t really make a choice out of their free will to say I did it. You know, when the police was pointing, police were pointing a gun at them or threatening to kill their family or something, or in some extreme case. And so that’s the origin of that. There’s another component to that concept of common law voluntariness, that if the police engage in trickery, that’s how it’s described in a way that would make it so the person can’t really decide whether they’re going to talk or not. They can also make a statement inadmissible in common law and there have been some examples of that for previous cases that deal with common law voluntariness that you some of the examples would include things like, let’s say, the police dressed up as a priest and come into the cell, said here to take your confession. And the person says, oh yes, I got to save my soul. You know, I did it right. That is very likely to be involuntary. Right. So, on the basis of police or let’s say the police pretend to be a lawyer. Hi, I’m the duty counsel here. You know, just tell me what happened so I can give you legal advice. Okay, fine I did it right. That’s also very likely to be inadmissible. But it’s a pretty high threshold. The talk is, you know, the language used around those cases is the conduct something that would shock the community. And I think most people would agree, pretending to be the defence lawyer.
Adam Stirling [00:19:34] yeah.
Michael T. Mulligan [00:19:34] To get information on somebody that’s that’s just not on or pretending to be a priest, to save your soul, to get a confession. That’s not on either. But there can be a judgement call. But what amounts to that kind of unacceptable community, shocking conduct. And this case, the first of all, was a drug judge alone case, which meant that both the Crown and the defence agreed to the judge just trying the murder case. Usually, it’s a jury. But Judge alone, in this case, the police conduct after the person had spoken to a lawyer to get some advice on the telephone, they engaged in 48 hours of interviews involving, you know, some of them very long interviews. And eventually the police were telling them things like, well, you’ve already been convicted of that conspiracy, you can just talk to us. It’ll be helpful, nothing you can’t be used to cause you a problem you’ve already been convicted of that, it can’t get any worse. Why don’t you talk to us? And eventually you got the man to say things that implicated him in the actual murder. The judge at the trial found that the police conduct did amount to that sort of trick, police trickery.
Adam Stirling [00:20:43] hmm.
Michael T. Mulligan [00:20:43] Which would shock the community in the sense that, you know, they after 48 hours of interviewing this guy, with no lawyer of course, during that, he spoke to a lawyer earlier. Telling him things about, for example, hey, don’t worry about it, you can talk to us. It can’t be used against you. You know about double jeopardy. You’ve already been punished for that. The judge had found at the trial that that did amount to given the length and method of the interviews and those kind of sort of misleading things the fellow was told about by the police that it did amount to that kind of police trickery, which crossed the line into shock the community. And so, he was acquitted. The crown appealed that, and they ultimately were successful. It’s interesting to note the Crown can’t generally appeal on a factual finding. Can’t say well, you know, that judge shouldn’t have believed somebody. But they can apply. They can appeal in an era of law. And here the Court of Appeals found this was an error of law, that there just wasn’t a basis on the Court of Appeals view, looking at the transcript of what was said to come to the conclusion that there was police trickery of the sort that would shock the community. And so that was the Court of appeals assessment. And the result of that is that even though this man had a trial and even though the judge found that the statement that he made after the 48 hours of interviews was not voluntary in a common law sense because of what the judge found to be that kind of police trickery. The Court of Appeal found that it wasn’t to that level and that there wasn’t a basis for the trial judge to have come to that conclusion. And so, the result of all of that is that there will be a new trial ordered. And the presumptively if the evidence comes out the same way, then the whatever the man said after the 48 hours of interviews by the police or interrogations by the police will be admissible at the new trial. And we will have to wait and see whether the man is found guilty on the second go round for this terrible murder. He probably has now just finished serving his 13-year sentence for the conspiracy to commit murder. And now we’ll get a retrial on the actual murder charge. So that’s what common law voluntariness is. That’s where the inculpatory statements are, as opposed to an exculpatory. I didn’t do it right. And that’s the way a judge has to analyse it separate from that issue of did you get to speak to a lawyer first? And so, all of that, I suppose, is also to say if you’re arrested and the police are interrogating, you don’t talk. It’s not going to help you. But that’s, of course, very hard advice to follow up, follow up on, particularly when you’re sleep deprived and they’re trying they’re going out somebody for 48 hours. So that’s the latest from the Court of Appeal on common law voluntariness.
Adam Stirling [00:23:27] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Michael, pleasure as always.
Michael T. Mulligan [00:23:34] Thank you so much. Always great to be here.
Adam Stirling [00:23:36] All right.
Automatically Transcribed on November 12, 2024 – MULLIGAN DEFENCE LAWYERS