Cowichan Valley Unable to Stop Contaminated Soil Dump – BC Court of Appeal

imageVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the British Columbia Court of Appeal decision concluding that the Cowichan Valley Regional District does not have jurisdiction to stop contaminated soil from being used to fill in a rock quarry.

The Court of Appeal decision turned on the definition of a “mine” pursuant to the Mines Act and whether filling in the hole created by quarrying rock constituted mining. The court concluding that quarrying rock was mining and that remediation of a quarry was also part of mining. Accordingly Cobble Hill Holdings Ltd. was entitled to rely on permission granted by the provincial government to continue filing the rock quarry in with contaminated soil.

The site in question is part of the Shawingan Lake watershed.

In 2013 the provincial Ministry of the Environment granted permission for the company to bring contaminated soil to the site to fill in the quarry. The contaminated soil is put into synthetically-lined cells to “permanently encapsulate” it before it is covered with clay and clean soil.

In addition the company has constructed an 1,800 square meter asphalt-paved pad for the purpose of treating contamineted soil before depositing it on the site.

The Court of Appeal found that the Cowichan Valley Regional District does have jurisdiction to prevent the company from treating the contaminated soil on the site using the asphalt-paved pad pursuant to its authority to regulate land use pursuant to the Local Government Act.

Listen to the show here:

Michael Mulligan - album art v1.jpgMichael Mulligan is a Lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.


Fentanyl crisis: Are harsher sentences the answer?

a3-boechler-jpgVictoria lawyer Michael Mulligan commenting in Times Colonist story by Katie Derosa on the criminal justice approach to fentanyl. Are harsher sentences the answer?

CHEK News – Kelly Ellard expecting a baby in jail

759126-babies-in-jail-1Victoria lawyer Michael Mulligan on CHEK News with April Lawrence discussing the mother and baby program in the federal correctional system that permits babies to stay with mothers who give birth when in jail.

Evidence in a court case that reversed the cancelation of a similar program in the provincial correctional system established that permitting babies to remain with mothers improved outcomes for both. Babies were able to be breastfed and bond with their mothers. Mothers who were permitted to keep their babes were also less likely to reoffend when released.


Creep Catcher type video creates personal and criminal risk

Victoria lawyer Michael Mulligan comments on a creep catchers style video that put the producer at personal and criminal risk.

Mayor Helps defends decision to continue pay for suspended Police Chief Elsner

vka-elsner08397-2-jpgVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall. Victoria Mayor Lisa Helps defends her decision to continue paying suspended police chief Elsner more than $200,000 a year.

Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins both voted to continue paying suspended Victoria Police Chief Elsner’s full salary, and legal expenses, despite the fact that he has been suspended by a retired judge pursuant to an investigation ordered by the Police Complaints Commissioner.

Investigations concerning Elsner started with an inappropriate online relationship he had with a subordinate’s wife and have now expanded to include investigations into whether he attempted to interfere with witnesses or delete evidence.

Meanwhile, Elsner has filed a court application to both stop, and keep secret, the details of the investigations into his conduct that have been ordered by the Police Complaints Commissioner.

The relevant provisions of the Police Act are discussed. Section 110 (5) of that act permits the pay and benefits of the police chief to be stopped as a result of his suspension. The proper test for this is whether it’s in the public interest to continue paying him.

If Elsner’s pay was suspended he would receive money in the event that he is exonerated. On the other hand, there is no provision to recover money payed to him in the event that he is found to have engaged in misconduct.

In addition to voting to continue paying Elsner, Mayor Helps and the Police Board have taken the position that the Police Complains Commissioner’s investigations should be stopped and that a letter of reprimand placed on Elsner’s file by the Police Board was sufficient.

Elsner is paid in excess of $200,000 per year but is applying to court in an attempt to keep the details of his employment contract secret.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.


Michael Mulligan – Times Colonist – Give Police Guidance on Traffic Investigations

Michael T. MulliganTimes Colonist opinion piece by Victoria Lawyer Michael Mulligan on the desirability of legislative guidance for police conducting traffic accident investigations on major highways:


Should there be a time limit on highway closures to investigate accidents?

cedar-and-highway-1-in-nanaimoVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing police highway closures for the purpose of accident investigation.

As occurred near Nanaimo recently, police will, with some frequency, close major highways and bridges in order to conduct accident investigations. Typically, the length of the closure will be in some proportion to the seriousness of the accident.

Currently, police are provided little legal direction with respect to the length of such road closures. The investigators will determine how many tests, measurements, and pictures are to be taken before a road is reopened.

In some cases, thousands of motorists will be stopped or diverted in order to conduct an investigation.

While the people involved in a serious accident, or their families in the case of a fatality, have an interest in as complete an investigation as possible, there is a substantial external cost to the thousands of people who are stopped in order to allow for this.

If there was a legislative limit placed on the length of time a highway or bridge could be closed in order to conduct an accident investigation, once medical assistance has been provided to the individual involved, this would afford an explanation for the police if they were criticized for not taking every possible investigative step.

The tradeoff would be that, in some cases, evidence might not be available to support a criminal conviction or to assign civil responsibility for an accident.

On Legally Speaking, the possibility of limiting major highway closures to half an hour for the purpose of accident investigations is discussed.

Listen to the show here:

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.

Legally Speaking – Legal Aid for Mentally Ill

9985094Victoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the inadequacy of legal aid for mentally ill people who are involuntarily committed to hospital.

In British Columbia you can be involuntarily committed to hospital if a doctor believes it is necessary to prevent your mental or physical deterioration or to protect you or others.

Once you are involuntarily committed you no longer have any control over what treatments or medications you are given and you are not allowed to leave.

There is a review process for involuntarily committals that involves a hearing before a three person panel comprised of a doctor, a lawyer and a person who is not a doctor or a lawyer.

Prior to 2002, if you were involuntarily committed and unable to afford a lawyer, the Legal Services Society was required to provide a lawyer or advocate to help with the review process.

In 2o02, the Legal Services Society Act was ammended so as to remove the legal requirement to provide help to poor people subject to civil committal. Instead, the BC Government enters into “Memorandums of Understanding” with the Legal Services Society that specify legal assistance that “may” be provided.

In British Columbia there is a special tax on legal services that collects more that $171 million a year. This money was supposed to be used to pay for legal aid services, including for people who are involuntarily committed to hospital. Unfortunately, the provincial government provides less than half of the money collected to the Legal Services Society. The balance of the money goes into general government revenue.

The Legal Services Society doesn’t have enough money to pay for lawyers or advocates to help mentally people who are involuntarily committed and they are, therefore, required to either represent themselves at review hearing or remain in hospital for months waiting for legal help.

This state of affairs is being challenged on the basis that it violates the constitutional right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.

In order for people to have a fair hearing to determine if they should be kept in hospital against their will, to undergo treatment without their consent, there should be a a fair hearing. Denying this is simply unfair.

A copy of the petition, filed by lawyers Mark Underhill and Kate Feeney, challenging this state of affairs, can be found here: 5296_Petition_Filed-August12-2016

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.


Legally Speaking – Realtor Regulation in BC

Choosing-the-Right-RealtorVictoria lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing changes to the regulation of realtors in British Columbia.


A report examining the regulation of realtors in BC has prompted the BC government to announce plans to change the self governance structure it introduced a decade ago.

Rather that being regulated by the Real Estate Council – members of which are elected by realtors themselves – the government will transfer this responsibility to a real estate commissioner.

Maximum fines will be increased and controversial practice including shadow flipping and double ending of deals will be prohibited.

Not addressed in the report but discussed on the show is the need for the regulation of real estate fees to ensure they are fair and reasonable given the amount of work performed by an agent.

The objective of regulator changes should be to ensure agents are encouraged and required to act in the best interests of their clients.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.