Victoria area woman with Bell’s palsy failing breathalyzer fuels calls for change

Victoria Lawyer Michael Mulligan commenting in Global News story by Richard Zussman.

Sober drivers, who are unable to provide breath samples as a result of physical disabilities, are being subjected to fines and driving prohibitions.

Mulligan says the change “runs real risk of capturing innocent people” and should be changed to allow people to properly defend themselves.

“It’s obviously a legitimate goal trying to make sure that people are not impaired,” Mulligan said.

“The problem is when you combine the right to demand samples of anyone who displays no symptoms of impairment whatsoever and combine that with a provincial scheme that tries to permit expedited punishment of people without a fair appeal mechanism, it’s those things that will inevitably lead to the unfairness we have been seeing.”

Impaired Driving by Drugs – Any Detectable Amount

Times Colonist Story by Louise Dickson – Under Canada’s new impaired-driving laws, it’s a criminal offence to have “any detectable amount” of cocaine, methamphetamine, magic mushrooms, LSD, ketamine or PCP in your blood.

“You can do a very careful analysis of blood and detect a minute amount of some drug, but there’s no reason to think that’s connected to driving problems,” said Mulligan, who is concerned that setting the limits at “any detectable level” will result in convictions of people who are not impaired or driving dangerously.


Broader drink-drive law raises concerns about discrimination

Victoria Criminal Lawyer Robert Mulligan, Q.C., discussing the potentially discriminatory impact of changes to impaired driving laws in a Times Colonist story by Katie DeRosa.

“The concern is that this broadened power will facilitate potentially inequitable or discriminatory effects,” Mulligan said. “If you can make demands of anyone who is lawfully stopped, such as during a traffic investigation or a licence check, is it possible that this will result in minority groups or other disadvantaged people being disproportionately affected by criminal-code interventions of this kind?”

Canadian Lawyer Magazine – Lawyers Rights Watch Canada and Legal Aid

Canadian Lawyer Magazine article discussing the Lawyers Rights Watch Canada submissions on Legal Aid in British Columbia.

Issues include not only decades of legal aid underfunding, as a result of revenue from a special tax on legal services being diverted from its intended purpose, but also the need for legal aid to be delivered by an organization that is independent of government.

Because the provincial government is responsible for prosecuting criminal and child apprehension cases, a legal aid service provider charged with defending such cases should be independent of the provincial government.

Crown disclosure problems revealed in failed high-profile money laundering case

Victoria Criminal Lawyer Michael Mulligan commenting in CBC story by Jason Proctor concerning the challenges created by the accidental disclosure of information that reveals the identity of confidential police informants.

If information is unnecessarily redacted the Crown can wind up in breach of its disclosure obligations, or, in the worst-case scenario, an innocent person could wind up being convicted if significant exculpatory evidence is not disclosed. On the other hand, inadvertent disclosure can result in serious consequences for police informants.

Legal Aid Review

Victoria lawyer Michael Mulligan compares the B.C. government’s review of the way legal aid is delivered in this province to assessing the dinner menu on the Titanic. – Article by Louise Dickson / Times Colonist


Pot pardons may provide little help at the border

Pot pardons may provide little help at the border

Criminal-record suspensions don’t mean everything goes away: Victoria lawyer Michael Mulligan, in a Vancouver Sun article by Matt Robinson, discussing how a criminal record suspension (pardon) will, and will not, assist someone who has been convicted of a marijuana-related offence.

Drager Drug Test 5000 – Michael Mulligan on CFAX 1070

 Victoria Lawyer Michael Mulligan, on CFAX 1070, discussing the federal government approval of the Drager Drug Test 5000 for roadside drug screening.

Recent amendments to the Criminal Code, that come into force in December, will permit police officers to make alcohol screening demands without any grounds to suspect a driver has been drinking. In addition, where police officers have reasonable grounds to suspect someone has drugs in their body, they will be permitted to demand a saliva sample for the purpose of drug screening.

The first machine that has been approved by the federal government for roadside drug screening is the Drager Drug Test 5000.

Drager has posted a video on YouTube that provides an overview of how the Drager Drug Test 5000 works:

Several are apparent from a review of the video which suggests the device may not be practical for roadside operation.

In order to obtain a sufficient amount of saliva for analysis, a police officer would need to swab around a suspect’s mouth for between one and four minutes while ensuring that the suspect doesn’t suck or chew on the collection device.

Once a sufficient amount of saliva is collected in a plastic collection tube, the device would then require approximately 15 minutes to perform an analysis.

The device will not operate correctly unless kept within 10 degrees of level and, according to the written description of the device, needs to be between 5 and 40 degrees Celsius during operation.

In addition to the discussions surrounding the drug testing device, two recent British Columbia Court of Appeal decisions were discussed.

In Barter v. British Columbia (Adult Forensic Psychiatric Services), the court dismissed an appeal from a decision by the British Columbia Review Board to deny an absolute discharge to a man who was found not criminally responsible for a murder he committed in August of 2010. The process for monitoring someone who is found to be not criminally responsible as a result of a mental disorder is discussed, along with the test to be applied where there is an appeal of a decision to the Court of Appeal.

Another decision of the Court of Appeal, R. v. Oler, is also discussed. This case involved a man who was acquitted at trial of an offence relating to taking his 15-year-old daughter to the United States to be married in a polygamist ceremony. The trial judge found him not guilty as there wasn’t evidence that the father did anything to remove his daughter, while he was in Canada. The trial judge relied on a general provision of the Criminal Code that requires an offence to occur in Canada. The Court of Appeal found that this general provision didn’t apply because there was a “real and substantial link” to Canada and ordered a new trial.

Listen to the show here.

Michael Mulligan is a criminal lawyer in Victoria, BC. Legally Speaking is live on CFAX 1070, with Adam Stirling, at 10:30 am on Thursdays.


Death of man, 87, in custody shows bail is very difficult

Victoria lawyer Michael Mulligan commenting on challenges relating to bail decisions in a Times Colonist article by Louise Dickson. An 87 year old man, with no criminal record, died in jail after his bail hearing was adjourned.