An illegal arrest of a protester, a judge shooting himself in a courtroom, and a vacation rental injunction

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070.

A new Supreme Court of Canada case, Fleming v. Ontario, concluded that the police did not have the authority to arrest a protester who was carrying a Canadian flag and walking down the road, in order to avert a possible, future, disruption. The police officers and the province of Ontario claimed that the police were authorized to arrest the man pursuant to the ancillary powers doctrine to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace.” The Supreme Court disagreed found that the arrest was not authorized by law. The wrongly arrested protester was awarded $139,711.90 plus court costs.

Also discussed, was a recent case from Thailand in which a judge acquitted five Muslim men of murder and said “You need clear and credible evidence to punish someone. So, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crimes, they might have done so, but the judicial process needs to be transparent and credible… punishing the wrong people makes them scapegoats.” The judge posted a statement on Facebook indicating that he had been pressured to find the men guilty despite a lack of evidence.

The judge then recited a legal oath, pulled out a pistol and shot himself in the chest. He survived and was rushed to the hospital where he is recovering.

Finally, a BC Supreme Court decision dealing with short term vacation rental, and a bylaw prohibiting them is discussed. The Thompson-Nicola Regional District sought an injunction to prohibit two cabins from being rented for short time periods. The bylaw the regional district relied on was passed in 2012. The cabins had been rented, for short time periods, since 2008. The cabin owners claimed that the bylaws prior to 2012 permitted short term rentals.

If the earlier bylaw permitted short term rentals, because then rentals have been going on continuously, since 2008, this would have been a lawful nonconforming use pursuant to section 528 (1) of the Local Government Act. This doctrine applies as long as the non-conforming use was continuous, with no break for more than six months.

While the judge agreed that the short-term rentals have been continuous, since 2008, and would, therefore, have been a lawful nonconforming use, the bylaw in place in 2008 also didn’t permit short term rentals and, accordingly, that regional district obtained the injunction they were asking for.


Legally Speaking is live on CFAX 1070 Thursdays at 10:30 am.


<Automated transcript>

Legally Speaking Oct 10, 2019

Adam Stirling [00:00:00] It’s Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. I’m so used to saying the second half of our second hour that I almost said it again today. But that’s not what time it actually is. If I could read the clock everything would be perfect. Michael Mulligan thanks for coming in the studio as always. How are you doing?

Michael T. Mulligan [00:00:13] I’m doing great. Good to be here. You know you’re going to be careful in the legal world you wait half an hour in some other cases going to spring up and everything’s all going to change, right.

Adam Stirling [00:00:20] Exactly some interesting ones this week including the Supreme Court of Canada making a decision regarding when police can and cannot arrest someone who is acting lawfully just because they think it might stop others from breaching the peace. Is this about protesting?

Michael T. Mulligan [00:00:36] It is and it’s, I think, a very both interesting and potentially important case defining what authority the police have in these protests to arrest people. The case is called Fleming and it comes out of Ontario. The essential fact pattern, it dates back to 2009, and what was going on is that there was an Aboriginal group who was occupying some land and some form of protest there. And Mr. Fleming was coming out in a counter-protest. He was carrying a Canadian flag on a wooden pole and was walking down the street up towards where the land had been occupied. And in the past there had apparently been conflict between the Aboriginal group that was occupying this land and the counter-protesters, I suppose with other Canadian flags. So along Mr. Fleming goes and the police observe that the people occupying the land are walking towards him, they’re 10 or 20 feet away, and the police decide that they are going to avoid a conflict between potentially, a potential conflict, between Mr. Fleming and the other protesters by arresting Mr. Fleming. So they go Mr. Fleming you’re under arrest, they order him to drop his flag, he refuses to drop the Canadian flag. And eventually the officers force him down to the ground take the flag handcuff him, take him off to jail and yet because it’s in Ontario, unlike in B.C., where the Crown would have to approve a criminal charge, in Ontario the police just charge you and the Crown come along you look at it later. So the police then charge him with obstructing a peace officer, I suppose for not dropping his flag and so on. Eventually, after a bunch of a dozen court appearances Crown takes over the prosecution and stays the criminal case. But that’s not the end of it. Mr. Fleming doesn’t just say ‘well that was lucky, I didn’t get convicted of obstruction’. He sues, the province of Ontario and the police, and he sues him for a bunch of things; battery, unlawfully arresting him, breaching his charter rights, and so off the thing goes to trial. Now, most people aren’t doing that because of the cost of pursuing that and the time involved. But go onMr. Fleming, he succeeds, and he winds up with an order from the judge of $139,711.90 in general damages, plus a bunch of costs, about double that amount eventually and cost another $150,000 and…

Adam Stirling [00:03:05] Special damages. Talk about that recently.

Michael T. Mulligan [00:03:06] That’s right. So he’s got his award. But the province of Ontario doesn’t like that and they appeal it off to the Ontario Court of Appeal. The Ontario Court of Appeal overturns the trial judge. But Mr. Fleming isn’t done. He’s a dedicated protester and so off to the Supreme Court of Canada where he wins. And so we have this brand new case from the Supreme Court of Canada that provides some important insight into what powers the police have to arrest people. And I should say there are reasonably broad powers in the criminal code that allow the police specifically to arrest people; like a police officer has reasonable grounds to believe that somebody has committed a criminal offence, they can arrest them. They’re even they’re permitted to even arrest somebody to prevent somebody from committing an offence, right, if they think you know hey that guy’s got a you know rock he’s running off towards a window it looks like you know to throw it, he hasn’t thrown it yet, they don’t have to wait for the window to get broken. They could arrest the person and prevent you know the mischief.

Adam Stirling [00:04:08] hmm.

Michael T. Mulligan [00:04:08] But here the important thing was that no one believed, the police officers didn’t believe that Mr. Fleming was doing or going to do anything unlawful. He was just there with his Canadian flag wanting to protest. And their purpose in arresting him was to prevent sort of a breach of the peace, but not by him.

Adam Stirling [00:04:28] Interesting. I can see the, I can see how it all comes together. It’s fascinating.

Michael T. Mulligan [00:04:31] So you know I don’t think it’s some bad intent. The police said that no doubt they just didn’t want somebody getting hit over the head with a Canadian flag or whatever the other group was carrying. But the argument they made is this concept of sort of ancillary powers that are necessary. … it’s called the ancillary powers doctrine. The concept there is that if the police have the authority to do something like, preserve the peace, right. The police argued that well we must have, as a function of that, the power to do various things, to carry out that goal/ objective duty. However, you’d want to phrase it. And so they argued that that ancillary power doctrine went so far as to empower them to arrest somebody in a prophylactic way to prevent a disruptive act, even if they hadn’t done anything unlawful and they didn’t think they were going to do anything in lawful. Well, the Supreme Court of Canada disagreed, and they specified why those sort of powers have to be really narrowly construed. Because if you interpret those sort of broad ancillary powers, that doctrine in a really wide way, it could very easily and quickly lead to all sorts of unauthorized police action. You know if you just say, look anytime they think they can do something that might achieve that broad goal of preventing the breach of the peace, you could just go and arrest anyone. You could be sweeping up by groups of protesters and doing all sorts of things, that are not really in accordance with our constitutional and legal values. So the Supreme Court of Canada made clear that’s not permissible. They restored the trial judge’s substantial award. They awarded very substantial costs to Mr. Fleming and one of the other points the court made, which I think is a good and practical one, is that these kind of claims are difficult to pursue. Oftentimes, issues about things like you know were the police allowed to arrest you would get litigated in the course of that person being charged with a crime, like for example here, had the original charge Mr. Fleming was facing of obstructing the police. Had that gone forward to trial, you can well imagine that that issue would get litigated in the course of that proceeding. He would say well hold on. You know you were breaching my constitutional rights to you or you had no authority to do that. Therefore it wasn’t obstructing you. But when things aren’t proceeded with in that way, it’s their rare and determined person who says well I’m going to go off to civil court and I’m going to pursue you. Most people aren’t doing that because of the large cost and time commitment.

Adam Stirling [00:07:17] Yes.

Michael T. Mulligan [00:07:17] I mean Mr. Fleming’s been at this now for a decade.

Adam Stirling [00:07:19] Absolutely, this was 2009 this event took place.

Michael T. Mulligan [00:07:22] Right. So that’s a major commitment. And one of the other points the Supreme Court of Canada made is that it’s important that these powers be narrowly construed and that there be some clarity around it. Lest we require people to engage in this kind of litigation in order to make that point or stop that sort of behaviour, because otherwise, you would have potentially things like the police just sweeping up a bunch of people at the protest taking their Canadian flags and then just saying well we’re not charging you, so what are you going to do about it. Right. And most people say, well I guess that’s fortunate enough to go to court. I don’t really want to go off and hire a lawyer and pursue this thing for the next decade. So here we are. It’s an important case. I think both in terms of principle and in terms of providing some reasonably clear direction to the police in terms of what they are permitted to do. And you know we had this not long ago here in Victoria. Right, we had that group of people..

Adam Stirling [00:08:25] Ya how does that work and they blocked the bridge. How did police know when, cause I can’t stand in the middle of the highway, and say I’m having Adam day nobody can pass. The cops are going to drag me off sooner or later, because I’m… I but if I’m a group of people saying we need to do this climate thing I’m allowed to stay there. How does that work? What’s the distinction?

Michael T. Mulligan [00:08:41] Well, I mean largely those decisions are decisions of judgment and restraint on the part of the police.

Adam Stirling [00:08:48] mmhmm.

Michael T. Mulligan [00:08:48] I think they would pretty clearly have the lawful authority to show up and if you had somebody who’s you know, impeding traffic in the road, you’re not going to have too much trouble finding a applicable section of the motor vehicle act or some bylaw you’re going to be breaching, and to show up and start arresting people and putting them in handcuffs and dragging them off to jail. And the decision, not to do that, isn’t so much the function of some particular legal obligation to require a bunch of people to block everyone’s effort to get home at the end of the day on the bridge. But it’s really an exercise of discretion and judgment on the part of the police, because of course some of those protests are designed to antagonize the police in hopes of producing some conflict to get attention. Right. That’s really what’s going on.

Adam Stirling [00:09:34] Ya.

Michael T. Mulligan [00:09:35] And so.

Adam Stirling [00:09:35] Or I, I think so at least,.

Michael T. Mulligan [00:09:36] yeah.

Adam Stirling [00:09:36] But yeah.

Michael T. Mulligan [00:09:37] So it’s probably an exercise of good discretion not to immediately start with that and allow people a few minutes to sort of disperse on their own. All of that is good and sensible. But this case would for example make clear that the police couldn’t say look you know the motorists trying to get home look pretty agitated at this group of people blocking the bridge. We’re going to go and start arresting the motorists because we don’t want there being some conflict between the motorists and the bridge blockers, right. That’s clearly now not on. So like so many things in life. Well, there is ultimately some legal answer that’s going to be produced, you know a number of years down the road. So many of these things just depend on people exercising good discretion and judgment. And there’s no legal decision that’s going to force that to happen right. It requires people to act in a sensible way. And even though you might have the legal authority to go in immediately started handcuffing people on the bridge, waiting a few minutes is probably sensible. But there’s no other legal authority to do that. You’re right to protest doesn’t include the right to just go and block the bridge and progress of people home at the end of the day.

Adam Stirling [00:10:48] Let’s take a quick break. Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers continues after this.

Commercial [00:10:53] COMMERCIAL BREAK.

Commercial [00:14:33] Keeping you informed Adam Sterling on CFAX 1070.

Adam Stirling [00:14:43] We talk a lot about candidates courts and how they govern our day to day affairs. Thailand the setting of our next story five Muslim men on trial for murder. Heavy pressure for a conviction. What happened Michael Mulligan?

Michael T. Mulligan [00:14:56] You’re certainly right. This case I think is perhaps one of the clearest examples of why we ought to, all, be very thankful for where we live and how broadly speaking the justice system works here. This was a judge who was trying five Muslim men for murder and the judge acquitted the men and then in the courtroom pulled out a gun and shot himself in the chest and in an apparent effort to kill himself and then had, he must have recorded it earlier, he began playing a impassioned speech on Facebook that said you need clear and credible evidence to punish somebody, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crime; they might have done so, but the judicial process needs to be transparent and credible. Punishing the wrong people makes them scapegoats. And then the transmission was cut off. It would appear what was going on is the judge was being subject to pressure to convict these five men of murder, despite there not being enough evidence that they had committed the crime. And so following the acquittal the judge played that speech and then shot himself in an apparent effort to kill himself. He survived, they rushed him off to the hospital and he’s apparently recovering from his injuries. He also posted, if I cannot keep my oath of office, I’d rather die than live without honour. So that sounds like this judge in Thailand is doing a fine service, but you can…all of that gives you a pretty clear picture of what the justice system is working like in that country. And I suspect that is not dissimilar to how it operates in most places in the world. You know in Canada you would never for a moment have an actual concern that you know the dredge judge trying your case is subject to some political, or other pressure, to decide the thing one way or the other.

Adam Stirling [00:17:06] mmhm.

Michael T. Mulligan [00:17:06] But clearly that’s not the case there.

Adam Stirling [00:17:08] For anybody or anybody who knows anything about Canada’s judicial culture when compared and contrasted against other countries knows Canada’s judiciary is, fiercely independent, and jealously guards that independence against anyone who may make incursions upon it.

Michael T. Mulligan [00:17:22] Yeah. And that’s not even the case in other countries similar to Canada like in the U.S. for example you’ve got, in some states, elected judges, like if you go down to Nevada and drive around sometimes you’ll see all these signs about you know judge so-and-so running for office. There’s also an interesting on that front study that the economists did a few years ago where they looked at the length of sentence imposed by judges who were elected and the clear trend was that in the year coming up to their election, all of their sentences went way up on average, out of, I guess, fear of not winning re-election by appearing soft on crime quote unquote. So not much of a a system there. And you even see in the U.S. of course judges routinely referred to by you know who appointed them all that’s a Republican judge or that is a Democratic judge, something which would I think not play into the discourse in Canada at all and I think quite reasonably so.

Adam Stirling [00:18:19] That’s what our Senate is for. Let’s move on.

Michael T. Mulligan [00:18:23] yes.

Adam Stirling [00:18:23] Well you know I could. I mean the joke was there I went for it, but um…Well actually before we leave this case, I’m I don’t, I didn’t know they allowed judges in Thailand to carry firearms. So I guess they’re not going to pat down the judge though as he walks into the room it would be easy enough to conceal a pistol one would think yeah.

Michael T. Mulligan [00:18:39] ya, maybe that’s they’ll have to rethink the robes or something there but I don’t know that that’s the…. know the proximate cause of the problem.

Adam Stirling [00:18:47] Ya. All right. Back home a municipal government getting an injunction to stop short term rentals. That’s the cabin or cabins in the Thompson Nicola Regional District. What’s the story here?

Michael T. Mulligan [00:19:00] It is and I think it may be of some other local interest, as well of course, because we have ongoing debates about short term rentals and efforts to prohibit them. And here the issue involved whether a bylaw, that clearly prohibited the short term rental, applied with respect to two cabins in issue because the owners of the cabins argued that, hey look we’ve been renting these things out since long before this bylaw was passed. And there is a provision for, what was referred to sometimes as lawful nonconforming use, and the concept there is that you know let’s say for example a bylaw permits you to build a gas station on your property, so you build a gas station and then five years later the municipality decides no no we want no more gas stations in that area we only wish apartment buildings or something. So they changed the bylaw which would no longer permit a gas station there. That does not mean that you need to tear down your gas station and build an apartment building or nothing. Your grandfathered, would be the way people would usually describe it. And so the owners of the two cabins argued that hey look, the bylaw that was in place when we started renting out these cabins, many years ago back and I think 2008, they argued that hey that allowed us to rent out cabins short term. And so even though in 2012 you’ve passed a new bylaw that doesn’t permit it. We can continue because we’ve been doing it continuously since then. The argument the municipality made, or they need several. One of them they need though was that, hey look there was a gap and if you have something which is a nonconforming use and you stop doing it for a period of six months you can then lose that status.

Adam Stirling [00:20:55] Oh kay.

Michael T. Mulligan [00:20:55] So they argued well look they looked at the rental records for the cabins and they argued hey for one of the cabins nobody rented one of them for six months. The counter argument by the cabin owners was well you know we don’t have control over how frequently people rent them. We’ve been trying to rent them and have rented them for all of this time. The judge accepted that argument. The municip…the regional district was unsuccessful in arguing, hey you didn’t get a renter in one cabin for six months, but ultimately the cabin owners floundered because the judge concluded that the old bylaw didn’t permit it either. So you can’t get a search grandfather..

Adam Stirling [00:21:29] So their no material change, oh okay,.

Michael T. Mulligan [00:21:30] All right. Yes, it was different.

Adam Stirling [00:21:32] You grandfaher in, to what you were ever in the first place..

Michael T. Mulligan [00:21:33] Right.

Adam Stirling [00:21:33] Okay, I get it.

Michael T. Mulligan [00:21:33] They were different and there was certainly an argument available that the earlier one would have allowed it but the judge didn’t buy that. So even though, it didn’t buy the regional district’s point. So that’s relevant, I think for people as well, when there are new rules passed purporting to prohibit various things. There needs to be consideration of well was this thing previously permitted. And have you continued to use the thing in that way. Don’t let there be a gap. You know if you turned your gas station into a single family dwelling for six months and then tried to turn it back into a gas station, you’d be out of luck in the earlier example. But municipalities can’t just come along and retroactively make your existing building unlawful by changing the underlying zoning.

Adam Stirling [00:22:22] There we go. Michael Mulligan again from Mulligan Defence Lawyers. Thank you as always for your knowledge and your insight. Almost out of time, 10 seconds left. I don’t think we could do another story, but we’ll see in a week.

Michael T. Mulligan [00:22:31] That sounds great.

Adam Stirling [00:22:31] All right back to your normal time in the second half of our second hour on a Thursday. Join us for that here on CFAX 1070. All right…


Federal Offender Security Clarification overrides, a Death Midwife, and NCRMD findings


Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070

Issues discussed include overrides of federal prisoner security classifications which result in inmates classified as medium security, being transferred to minimum security institutions. This was an issue recently as a result of two inmates escaping from the William Head Institution, which is a minimum-security facility, despite having been classified as medium security risks. One of the inmates had been convicted of escaping jail on five previous occasions.

A 2001 report from Correctional Service Canada, that examined the reasons given for overriding inmate risk classifications is discussed. The report found that that was a 13.6% increase in escape rate when risk classifications were overridden and that in 30% of cases the reasons given for an override were inappropriate.

Also discussed was a British Columbia Supreme Court decision involving the College of Midwives of British Columbia, and a woman who described herself as a Death Midwife. The woman’s website described death midwifery as a form of pastoral care. The College argued that the Health Professions Act prohibited the woman from using the term “midwife”. The judge in the case found that the act did prohibit the use of the term, however, it unconstitutionally interfered with the woman’s freedom of expression because it was overly broad and did not minimally impair the woman’s freedom of expression.

Finally, the requirements for someone to be found not criminally responsible, as a result of a mental disorder, are discussed, along with the consequences of such a finding. In order to be not criminally responsible a judge would need to be persuaded that someone committed an act or omission while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act of omission or of knowing it was wrong.

Where someone is found to be not criminally responsible, they would be subject to detention, in a medical facility, until a review board concluded they did not pose a significant risk to public safety. In some cases, this could be for a much longer period of time then they would have served in jail.


Automatically Transcribed on October 3, 2019 – MULLIGAN DEFENCE LAWYERS


Adam Stirling [00:00:00] Half an hour later than we would normally have this segment, but still of great interest to our audience. So, we’re doing Legally Speaking here on CFAX 1070 with Michael Mulligan for Mulligan Defense Lawyers as we begin the third hour on this Wednesday. Thank you so much for shifting your schedule slightly for us Michael Mulligan so we can accommodate our debate analysis. Good morning. How are you doing?

Michael T. Mulligan [00:00:19] I’m doing well. Always a pleasure to be here.

Adam Stirling [00:00:21] Interesting stories on the docket this week; including a question of how one may wind up at a minimum-security institution if one has been classified as being more suited to medium security.

Michael T. Mulligan [00:00:34] Indeed. And this is in the context of that of course escape from William Head with those two people that went missing. This week, one of the two showed up in court and pled guilty to escaping. Probably not much of a trial issue. You appear to not be where you’re supposed to be. Here you are. And so, the Crown asked for interestingly, the maximum sentence, I think in the given how they had proceeded they were seeking a 24-month sentence and that was in the context of this fellow having a record of five previous escapes. Which caused the judge, not surprisingly, to ask a few questions about, well how is it that with five previous escapes he was at a minimum-security prison? It came out in the course of that that he was indeed classified to be in a medium security rather than a minimum security prison, which then prompted the judge to say well please find out a little bit more about what happened here, who failed who and why was he there. Now that prompted me to have a look at how it is that he might have wound up at a medium… a minimum-security prison. William Head if that’s not where what he was classified to be in and lo and behold there was a study produced for Corrections Services Canada looking at exactly that issue. This study was conducted in 2001 and it was a study it’s entitled ‘Federal Offender Population Movement: A Study of Minimum-Security Placements’ and it looked at the issue of how might that happen. And there are some insights there. First of all, one of the things that the study points out is one of the things we’ve talked about here before, is that the Corrections Services will do classification for somebody to figure out what their security risk is. They’ll look at things like a person’s previous criminal record, what they’re serving time for, a whole host of factors, and that will dictate where they are to be initially classified and then that classification could change, depending on things like programs they’ve completed, reports on how they’ve done while they’ve been in for a number of years, this sort of thing. But there are a significant number of individuals who are where that classification decision is overridden and there’s authority to override it and to move somebody either to a higher or lower security institution than their risk assessment would seem to dictate. And there are these study points out a variety of reasons why that might occur. And they looked at a period of time but an 18 month period of time between April 1st 1989 and September 30th 2000, and they took a selection of people who were put in institutions other than the ones of a security classification that would seem to be dictated given their background and there are a number of reasons why that might occurs some of which seem perfectly legitimate. There are things like issues about interactions with other inmates. For example, let’s say you had one prisoner who was threatening to kill another prisoner. You might say well look we can’t keep these two people here we have to move one of them to another institution. So that might be a reason or there would be reasons like program availabilities, there might be a more suitable program in one place or another. So, there would be a variety of reasons, but the study pointed out there was a significant percentage of these overrides that didn’t seem to be well justified and they were a number of things were given as reasons because they have to be reasons for it. And some of them amounted to sort of disagreements with the classification of security. And that’s a concern. One of the things that the study also points out, and they looked at the rate of escapes, and they looked at the rate of escapes for individuals who were put in the type of institution that they were classified for and people who were overridden and moved, for example, into a minimum security when they were classified as medium. And in the study, it concluded that there was a 13.6% increase in the escape rate when somebody’s classification was overridden to put them into a minimum-security prison.

Adam Stirling [00:04:50] Interesting.

Michael T. Mulligan [00:04:50] Probably not a great surprise, but the result there is that more people are escaping when you override the security classification that was arrive at by looking at their background. Now that brings us around to the individuals here, oh and I should say this, one thing I should say that’s a positive thing.

Adam Stirling [00:05:11] Yes.

Michael T. Mulligan [00:05:12] At least in that study period, they looked at the rate of the completion rate, like the percentage of prisoners who successfully completed the program and were then released back into the community. The Pacific Region at the time had the highest success rate and that success rate was 95%. So generally, it works, but there are a fair number of people for whom it doesn’t work. And there’s a significant increase for people who are put in institutions that they weren’t classified to be in. Now that brings us around to the issue of the individual who had five previous escapes, was classified as medium security, what on earth is going on? Why would that person be reclassified to go to William Head?

Adam Stirling [00:05:52] Indeed. Why?

Michael T. Mulligan [00:05:52] Well, it looks like there were a couple of possible factors: one, was that he was apparently accepted to go into a treatment program that was available here; so, there was some benefit to it. And then the other factor is that he was in a 14 year sentence and he was getting close to what’s called his statutory release date and a statutory release date is the date upon which you will presumptively be released, unless there is a conclusion that you’re going to pose an undue risk if you’re let out. So, he was close to that statutory release date. So, I suppose one analysis would be look, why are you going to escape when, if you just do nothing, you are going to be released in a very short period of time. So logic might dictate, that to somebody who’s going to be released soon would have very little incentive to leave when the result of that is going to be, well you may have your statutory release date extended, you may wind up in a higher security prison, why in the world would you do that. But I suppose not every decision in life is made of a function of logic and not everyone who’s in prison is necessarily sitting down and doing a careful risk benefit analysis of all of their behaviour. After all, if they were, they probably wouldn’t be in prison to begin with.

Adam Stirling [00:07:06] Why would I commit a crime Your Honor knowing that if I got caught, I would go to jail. This case doesn’t hold water at all.

Michael T. Mulligan [00:07:12] That’s right.

Adam Stirling [00:07:13] I would not…

Michael T. Mulligan [00:07:13] This makes no rational sense.

Adam Stirling [00:07:16] All right.

Michael T. Mulligan [00:07:17] So that may explain it, but I and so the case was put over because the judge wanted some explanation for what’s going on.

Adam Stirling [00:07:23] Good.

Michael T. Mulligan [00:07:23] Hopefully he has a look at, or this is provided, this study, and I think there are some legitimate questions to be asked about; okay, you commissioned this study in 2001 it pointed out this these issues. Well what’s happened since then? So, I think there would be legitimate questions to be asked of corrections in terms of what do they do with this study? Has there been a decrease in those overrides and has there been a change in the rationale for them, knowing that when you do that you have a significantly higher probability of the person escaping? Not a good thing. So, there we are.

Adam Stirling [00:07:57] When is the person in question appearing in court again.

Michael T. Mulligan [00:08:00] I think was put over about two weeks.

Adam Stirling [00:08:02] Okay

Michael T. Mulligan [00:08:02] Now interestingly, a judge doesn’t actually have authority to require corrections to come an account for themselves.

Adam Stirling [00:08:08] Okay.

Michael T. Mulligan [00:08:08] A judge can ask for that and the Crown might, you would expect them to go and make that inquiry of Corrections. The judge wants to know how this person wound up there what happened? But there is no authority to force Corrections Canada to come and explain themselves. The sentencing process isn’t a generalized inquiry, but you would hope that there would be at least some explanation provided and those decisions are documented, and reasons are given for them. Those are what we’re looked at in the study of 2001. Corrections is very very good at producing copious written records reports and so forth. So, there will be a report, which would indicate, why, this person classified as medium security was put in the minimum-security institution. That’s going to be in writing. The reasons are going to be articulated there. So that exists. So, the question is going to be, is that provided to the judge so that he can make some determination as to what the background of this thing is in the context of somebody with five previous escapes.

Adam Stirling [00:09:15] Let’s take a quick break. Legally speaking on CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers continues in just a moment.

Commercial [00:09:24] COMMERCIAL BREAK

Announcer [00:13:05] Keeping you informed Adam Sterling on CFAX 1070.

Adam Stirling [00:13:09] Legally Speaking with Michael Mulligan from Mulligan Defense Lawyer, story two: individual by the name of Pashta MaryMoon. I hope I’m pronouncing that right. A self-described death midwife and I hope I’m pronouncing that right. We’ll be able to keep calling herself that Michael what the heck’s going on here.

Michael T. Mulligan [00:13:26] This is great. It’s a I must say if one is describing oneself as a death midwife no better last name might you have than MaryMoon. So, this case involves Ms MaryMoon, who is describing herself online and on Twitter, as a death midwife. And she described herself as: somebody who provides death care services and had done so for more than 40 years. She had a degree in world religions, and she focused on in that study, a modern approach to death and the taboos around it. So apparently, she’d worked with people during a period of time when they are dying. Well calling yourself a death midwife got the attention of the College of Midwives in British Columbia.

Adam Stirling [00:14:06] As one might imagine.

Michael T. Mulligan [00:14:08] They didn’t care for this. The College of Midwives brought on this application, under the Health Professions Act that deals with the reservation of use of titles. And there’s this act the Health Professions Act sets out a variety of things which are reserved titles. They include things like dentist or pharmacist. One can’t just hang up a shingle claiming I’m a dentist when you are not indeed a dentist and midwife is one of the things which is a reserved title. I should note as well so is lawyer…

Adam Stirling [00:14:44] As it should be…

Michael T. Mulligan [00:14:46] …under a different act.

Adam Stirling [00:14:46] As it should be.

Michael T. Mulligan [00:14:46] And the idea there, of course, is with all these things trying to protect the public. You don’t want just anyone putting up a sign saying I am a dentist and then just flying at it with their garden tools or whatever they think might be a successful approach to fixing your teeth. So, this application comes on and Ms MaryMoon raises a constitutional argument and she says hey hold on; first of all, I’m not pretending to do anything to do with the delivering of babies. And so, your effort under this legislation to stop me from calling myself a death midwife is interfering with my constitutionally protected freedom of expression. The Attorney General sends counsel to show up and defend the act saying oh no no no this is fine. So, Ms MaryMoon first of all argues I’m not violating the act. The judge doesn’t have much trouble in dismissing that saying no you’re calling yourself you’re using the term midwife putting death before it doesn’t get you out of it. You can’t just call yourself a death dentist or a death lawyer or something.

Adam Stirling [00:15:43] …

Michael T. Mulligan [00:15:44] And therefore avoid all regulatory restrictions so … death lawyer doesn’t make you a non-lawyer.

Adam Stirling [00:15:50] All right.

Michael T. Mulligan [00:15:51] So the judge said no no, the act is clear you’re violating it and then went on to perform a very careful analysis of the freedom of expression argument and found that the Supreme Court of Canada has broadly interpreted the concept of freedom of expression, and then the it found that this, using this terminology was a form of expression, and then did an analysis under a well-known legal test at least for those of us in the in that world, called the Oakes test. Yes. And the Oakes test deals with how you are to engage in a section 1 analysis where you found that somebody who’s constitutional rights been infringed and constitutional rights aren’t absolute, in Canada, they are subject to the s section 1 sort of limitation on them. Right. And when a judge is determining whether there is a reasonable limit on somebody’s constitutional rights, in this case too expression, the test to be applied comes from that case, Oakes, and hence the Oakes test, and a judge is required to look at things like; first of all, is there a pressing and substantial importance to the to the law. Yeah. You don’t want people calling himself a dentist or a midwife who aren’t those things. Sure, no problem there. Then you need to look at is there a rational or logical means of achieving that objective is what they’re doing. The restriction. Yes, that’s fine. Now the next part of the test was the was there a minimal impairment of the right.

Adam Stirling [00:17:19] And that’s that’s I think very important for the concept of minimal impairment and the balancing of the rights of the individual that are enshrined in the charter. Talk more about that.

Michael T. Mulligan [00:17:29] Right and here here’s where Ms MaryMoon succeeded. The idea there is that even if you’ve got an important reason why you’re going to breach somebody charter protected right to expression and even if what you’re doing is logical or rational, like saying hey you just can’t hang up a sign saying I am a dentist when you’re not a dentist, that’s rational to say you can’t do that. The legislation is to be found to be a minimal impairment of the constitutionally protected right, and the judge found that this was not. That this person, Ms MaryMoon using the term, death midwife, the fact that that was prohibited by this legislation, didn’t meet that requirement of a minimal impairment of her right to freedom of expression. And as a result, even though on the face of it, calling yourself a death midwife is calling herself a midwife, on the facts of this case and how this person was using this terminology and she did say in fairness she did say on her website I am not a part of the College of Midwives. Made it clear that she was not trying to deliver babies. That that was constitutionally protected. The legislation was overly broad. Not a minimal impairment, therefore a breach. Section 1 didn’t apply. And so, you are now free to hire Ms MaryMoon who is a death midwife and she’s free to carry on calling herself that. Well how that applies to other protected language is going to be an interesting thing, to see, because you could well imagine various other permutations. I doubt there can be a lot of death pharmacists out there, but you could well imagine somebody using some of those terms and the concern is of course, we don’t want to cause harm to the public. You don’t want to have somebody thinking, oh well that person seems like, I don’t know some kind of a pharmacist, they’re calling himself an herbal pharmacist or a natural pharmacist or a, you know pain free dentist like person. You don’t want to have confusion cause that’s going to cause harm to people. So, there it is the death midwife is free to carry on.

Adam Stirling [00:19:37] Now here’s what I’m curious about and this may well be settled in perhaps future legal proceedings this is the term death midwife unique enough for her to claim intellectual property rights to it and in that case could any other person also use the term without necessarily infringing on her rights to any intellectual property unique works that she might have. I don’t know.

Michael T. Mulligan [00:19:56] That’s a good question. We own Ms MaryMoon did get costs on this application, she was successful so perhaps some of those will be invested in future litigation concerning, her exclusive use of the term. Although, I must say there be a little bit of irony given her argument about freedom of expression. Her immediate move is to restrict other people from expressing themselves at exactly the same way. But you know, there we are it is not unheard of.

Adam Stirling [00:20:21] Well trust me as a person who makes expressions for a living, I, very jealously, guard my freedom to do so, as well as the right that any person who creates any work has over the control of their intellectual works. But I digress. We’ve got two minutes left. Do we want to do another one?

Michael T. Mulligan [00:20:38] Sure. I think I think probably some of those happen to us. There have been a few cases in the news recently about findings of people being not criminally responsible as a result of a mental disorder. There was recently a Salt Spring case for a person who killed their mother. And there have been other reports, including a photo release of a person, in Alberta after having served a number of years, not served but been for a number of years, in a hospital having been classified in that way. So, I thought it would be worth just saying a few things about what it means and when somebody might be found to be not criminally responsible. The language in the criminal code is this: and first of all there’s a presumption that you are criminally responsible and the circumstances in which you can found to be not be are that; if you are somebody who is suffering from a mental disorder that renders a person incapable of appreciating the nature and quality of the acts remissions or knowing that it was wrong. It’s a fairly high threshold. Now if somebody is found to be in that state right, they couldn’t appreciate knowing right from wrong or the quality of their actions. It doesn’t mean that you get a free pass. What it means is that you would be, then subject indefinitely, to the decisions of the review board. Who would determine whether you remain in jail or are going to be released or released on some conditions or conditionally?

Adam Stirling [00:21:56] Yes.

Michael T. Mulligan [00:21:57] And the effect of that can be in some circumstances, a person being in involuntarily in a hospital for many years, much longer and they might have served for the original act had they not been, but on the other case, in the other case if somebody is successfully treated, they may well wind up being released more quickly than they would otherwise have been, if they were sentenced that they were not… Criminally responsible. And the concept essentially is when we’re looking at all the reports of these things, but it doesn’t make any rational sense to be punishing and trying to deter people who acted in some way as a result of a mental illness. That’s just not an effective tactic, nor are you going to deter other people from becoming mentally ill and doing things well in that state.

Adam Stirling [00:22:41] Indeed

Michael T. Mulligan [00:22:42] And so the watch word is always, where there is a determination that that’s what happened, to ensure that somebody is treated and to ensure that the public is safe, rather than the other considerations that deal with punishment and deterrence which would apply in ordinary circumstances.

Adam Stirling [00:22:58] Indeed, Michael Mulligan from Mulligan Defense Lawyers, Legally Speaking every Thursday here on CFAX 1070. Thanks, so much we’ll do this. Eleven o’clock next week we have another debate. We’ll see you then.

Michael T. Mulligan [00:23:06] Thank you.


Jury deliberations and Special Costs in a disability income case

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070

Issues discussed include jury deliberations, sequestration, the fact that the substance of jury deliberations are secret in Canada, what information is included in a charge to the jury, information not provided to the jury, including the possible sentence if there is a conviction, and how judges deal with jury questions or cases where a jury is unable to arrive at a unanimous verdict.

Also discussed is a recent test case from the British Columbia Court of Appeal: Tanious v. The Empire Life Insurance Company. This case dealt with a successful claim for disability insurance benefits, and the circumstances in which special costs can be awarded. Special costs, as distinct from party and party costs, represent the actual legal costs incurred by a party to a claim. The Court of Appeal upheld the trial judge, who awarded special costs on the basis that it was in the interest of justice for the institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim.

Note: On October 3 and 10, Legally Speaking will be live on CFAX 1070 at 11:00 am, rather than the regularly scheduled time of 10:30 am.


Automatically Transcribed on September 26, 2019 – MULLIGAN DEFENCE LAWYERS


Adam Stirling [00:00:00] It’s time for Legally Speaking on Thursday at CFAX 1070, Michael Mulligan joining us as always, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, a pleasure. Good morning.

Michael Mulligan [00:00:09] Good morning. Great to be here.

Adam Stirling [00:00:10] Lots to talk about this week including; lots of talk about what is and is not involved in deliberations of a jury.

Michael Mulligan [00:00:18] Yes.

Adam Stirling [00:00:18] In this criminal trial a rather big one taking place right now as our audience knows.

Michael Mulligan [00:00:22] That’s right. Of course, local, locally significant … the Barry case and the jury is out now, I believe, for the third day. So, I think there are a few things that are worth knowing about how that works, what the jury’s told, and how it…. what occurs after the jury goes out to deliberate. What are they doing? How does that work? So, the first thing to know is that at the end of a trial, and this one went for five months, the judge is required to do what’s called ‘charging the jury’. And the process of ‘charging the jury’ really involves two things: first of all, the judge will summarize the evidence, which itself can be an interesting thing. For example, in a case like this, she would summarize the evidence of the accused. Right. Sometimes in my experience these summarizing of evidence can come across more clearly than the quality of the evidence originally. So that’s something to be sure paid attention to, but that’s one of the tasks of the judge. Another task of the judge is to tell the jury what the law is. And in that regard one of the common instructions a judge will give to the jury is they’ll say look, you’re the judge of the facts your task here is to decide, you know, what evidence you accept and don’t accept what facts, conclusions you come to. But the judge will say I’m the judge of the law, and I’m going to tell you what the law is. And the judge will say it’s important that you follow the law as I lay it out for you, because if I’m the judge and I’m wrong on some point that’s something which the Court of Appeal can correct. As long as you do what I’m asking you to do; if you go off and apply some other interpretation of the law, nobody’s ever going to know about that and there’s no way to fix that problem. Now the reason nobody’s going to know about it is that in Canada jury deliberations are secret. It’s actually a crime to disclose the contents of the deliberations by jury.

Adam Stirling [00:02:09] It’s a crime, not an offence, but a crime.

Michael Mulligan [00:02:12] Ya.

Adam Stirling [00:02:13] Wow, okay.

Michael Mulligan [00:02:13] And that’s different from the U.S. and the U.S. you’ll actually see juries come out and they’ll start being interviewed by the press and they’ll all start working on their book deal and some high-profile case or whatever it might be. And we don’t have that, and I think that’s good. You want people to be able to talk back there and not worry about oh my god, you know that another person on the jury who hated me is going to be blaming me for some outcome rather. The other thing which occurs in this case, and in most cases now, is the judge will give the jury a written copy of the judge’s instructions. And I think that’s healthy because, of course, the law as complicated as we well know and you can hardly imagine what it would be like, if you were on a jury, you’ve never thought about some of these legal concepts before, and somebody in one you know four hour session…

Adam Stirling [00:02:58] and you’re going to remember every element of that.

Michael Mulligan [00:03:00] That’s right. Some …. there are four parts to this test; there are three things you must be concerned with; you can think how that would go. It would be like telling somebody, look you’re going to have one afternoon of law school, now we’re going to ask you to go to a really really important exam, the outcome of which will determine the course of events for somebody’s life. That would be so much fun. So, the judge will ordinarily give the jury a written copy of the instructions so they can go back and reference that, and so back they go to deliberate. When juries go to deliberate almost invariably they are going to be what are what’s called sequestered, which means they are going to be kept together to deliberate they’re not going to be permitted to go and listen to the news or read the newspaper or talk to other people about the case. They will go in as a group in a room, the Sheriff will keep it secure. They will have a copy of the judge’s instructions, they’ll have paper to make their own notes and they’ll have access to the exhibits from the trial itself, and then they’re told to go at it. The jury needs to be unanimous. There is provision made for juries to ask questions and that happens with some frequency. Right, to be a you know some debate about some issue, or some point of law will be unclear. That will usually occur in a written form if the jury has a question. They could write down what the question is, or they could request, for example, the replay of some evidence because everything is recorded. That request would then go out to the judge. Usually the judge would come up with some proposed response. The judge would call in the lawyers and say look this is a question I’ve received, here is my proposed answer What do you each say about that any submissions. Thank you for those. Bring the jury back in. Give the explanation or answer and sometimes that could be absolutely critical because you’ll see decisions come from juries you know half an hour after the answer is given. The written question will be marked as an exhibit and that’s how that works. Juries will deliberate all day long, they take their meals together a Sheriff would take them to a restaurant, they it sits there together have their meal. They’re not permitted to go home at night. They will be put up in a put up in a hotel, so that they’re not being influenced by friends or family or other people talking to them. There’s actually piece out of Vancouver from a number of years ago now where a judge thought the jury was going a little bit long after a few days. And I think the impression was that perhaps they were in it for the free meals and hotel coverage and the judge actually directed that they be moved to UBC and put up in the dorms at night. So that…

Adam Stirling [00:05:30] So the least comfortable accommodations.

Michael Mulligan [00:05:31] That produced, that produced a judgment a bit more quickly. The judge, the jury will be told they’re required to be unanimous right in their decision. Some things a jury are not however told. They’re not told for example, what the sentence would be if there was a conviction. Like they wouldn’t be told, look for a second-degree murder conviction the mandatory sentence is life in prison and there’s some range of parole eligibility. They’re not told that. They were charged on manslaughter. They would not be told what the sentencing range might be for that. So, they know nothing about that. There are some examples like in that Latimer case, the farmer who killed his severely disabled daughter, where after the jury convicted and they were told what the mandatory sentence was life in prison they were aghast and his tears over that outcome.

Adam Stirling [00:06:18] Because that would have prejudiced their findings if they had known.

Michael Mulligan [00:06:21] Yeah. And sentencing is a role for the judge. The jury in a murder case interestingly, there’s this oddball provision where the jury can make a recommendation, non-binding on the judge with respect to parole and eligibility. Another thing they’re not told is that they might at the end of the day be unable to agree on how that’s to work out. The way that plays out usually is if after a few days they just can’t come together with a decision one way or the other. You’ll often see in those cases a note coming to the judge saying we can’t agree, or we are deadlocked 6 to 6 or you know one person will simply not change their opinion. We cannot come to a unanimous verdict. When that happens and you wouldn’t expect that in a case that ran for five months, at least for a few days, because it will take some time just to review, five months’ worth of evidence, and a big thick booklet of instructions, right. And if, however, that comes back some mess like we just can’t do it. The judge would ordinarily begin by giving the jury what’s called an exhortation, which is essentially calling them in and saying look we’ve been at this for five months you’ve heard a lot of evidence. You have to be true to your oath as a juror but, you know listen to your other jurors, please keep an open mind. Please go back and try again. This is a difficult matter for a lot of people. Please go back and try again. And then they would usually, the judge, allow the jury to go back after they’ve been exhorted to come up with a decision. They’d be given some additional time to do it. But if finally, they can’t do it, the mistrial would be declared and then it would be up to the Crown to decide whether to start again or not. But they’re not ordinarily charged at the beginning. Telling them well you might just not agree and that’s an option for you. They’re told you must be unanimous so as to encourage them to come to that point.

Adam Stirling [00:08:10] So you told us in the past there are two conditions that must be met for criminal charges to be brought. One, is there is substantial likelihood of conviction; two, with the bringing of charges be in the public interest. What is the test to bring another trial after a mistrial?

Michael Mulligan [00:08:22] Those would be the same tests that would be applied. But you might imagine how those things could, those judgments might be affected by previous mistrials. Probably not on a second go round. But what happens if you had a 6 to 6 jury couldn’t agree. You try again for another five months the same thing happens. You try again the same thing happens, perhaps at that point, if I ask you the question, Is there a substantial likelihood of conviction? Ee run this evidence two or three times and every time we run it; we cannot get a unanimous jury verdict that might cause that calculation to be changed. The second part of the charge approval threshold is it in the public interest to proceed. There’s going to be a high public interest in trying to get a result in a murder trial. But at some point, you might say look we’ve been at this for two years and three or four times we can’t do it, we’re just packing it in and some combination of those tests. The other thing which can occur is there can be issues about have you had a trial within a reasonable period of time. If you try to retry things that could become even more complicated because now you’ve got witnesses who have testified for example you know two or three times and now you’ve got like multiple previous versions of events, plus they’ve given some other version of events to the police and I’ve got all these different versions so that can make that more complicated. And then there could be other issues about things like the effect of publicity. Right now, you’ve had this thing all over the news, perhaps multiple times, and what impact is that having. So, we’re still at it at a point in the particular case it’s going on now. Where given it’s a five-month trial, we’re not at the stage where anything would be unusual about a jury being out for three days to consider an important case, a mountain of evidence, and complex instructions. But you know it’s a difficult job and I should say this. One of the other benefits that we have from having the jury system not only does it bring community values to the justice system, but even though the jurors can’t come back out and discuss what was said in the jury room, at the end of it you disperse these 12 people back into the community who have had to do that very difficult, perform that very difficult function. And that’s important in and of itself, because when you look at a case from afar and you’re not involved in that sometimes they go, how hard can this be. You know I read some summary of that surely, I could figure this out. But when you’re somebody is actually in the position of no you’ve got to listen to these witnesses. This is the quality of the evidence. This is how high the burden is now going back and decide that. That is a daunting task with a really important outcome. And I think it’s a valuable thing in terms of general confidence in the justice system that you have people doing their civic duty serving on juries and then going back into the community and can report on what how did that go, right. Was that a fair process? You know how was that? What was that experience like? And almost invariably when I speak to people who have served on juries and you don’t ask them of course what was in the jury room, but if you ask a question like how was your experience? How did you find that? Almost invariably the response is a positive one. And I think that’s an important thing as well. So, there’s a there are a lot of a lot of things going on here in terms of the justice system, the community, the two-way feedback about that thing. And we are lucky to have the system that we have and that members of the community can make collectively these important decisions. And I think there’s some magic perhaps or maybe wisdom would be a better way to put it in requiring unanimity amongst a dozen people. Right. If you if you are able to persuade 12, you know regular people, from different backgrounds, of some state of affairs that’s probably a pretty reliable way to do it right.

Adam Stirling [00:12:15] You know it wasn’t the odds or at least one of them would disagree. It’s a fail fast method.

Michael Mulligan [00:12:19] That’s right. If you have sort of one or two people maybe you wind up with outliers in your oddball approaches to things, but if you have 12 people and they all hear it and you can get all of those 12 people to agree on something, that’s an important protection. So, there we are.

Adam Stirling [00:12:33] All right. Let’s take a quick break. Legally Speaking continues in just a moment on CFAX 1070.

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Commercial [00:16:19] You’re listening to Adam Sterling on CFAX 1070

Adam Stirling [00:16:25] Legally Speaking continues, Michael Mulligan with Mulligan Tam and Pearson before we wrap up how jury duty actually works and what happens while a jury is deliberating. I’ve had lawyers tell me in the past, Michael, that anyone with a legal education is effectively banned for life from sitting on a jury because the example of the sentence that would be required from a finding of guilt in a murder trial for example, an ordinary person, like me might not know, but you’d hope somebody with a legal education would know that.

Michael Mulligan [00:16:50] Yeah and I guess the other concern would be what happens if you wind up with somebody with a legal education that doesn’t really know what’s going on. Is wrong.

Adam Stirling [00:16:57] Oh.

Michael Mulligan [00:16:57] But you could also imagine what would happen if you had that person with some trying to sort of take over and tell people what it would be like, oh don’t worry about what that judge told you about this or that, I recall what that was I went to law school 20 years ago this is what the law was. You can easily imagine how that would knock things off kilter. So, lawyers are out. It’s interesting now though that the we’ve just had a change to how jury selection works. And one of the things which happened was removing what are called preemptory challenges, whereas lawyers for those articulating a reason could challenge a prospective juror. That’s now gone by the wayside, although subject to some challenges. So, it’s going to mean that we’re going to have, I guess a more random selection of people winding up on juries, and perhaps some greater scrutiny as to how the panel is arrived at, which has been an issue over time. It’s like Whoa on what basis are you calculating this group of people to bring in. You know have you used the voters list that might exclude certain categories of people who might be less likely to be on the voter’s list. What have you done? And then there’s also an issue I think about people trying to avoid jury service right. Oh, my goodness I have a small business, I’ve got to work, I’ve childcare responsibilities. And one of the other problems, is if you exclude all people with businesses, jobs, children, all kinds of things to do, you end up with a jury panel you can look at them and say well this doesn’t exactly look like the group of people that I would walk by on the street. You end up with a group of retired people or people that work for the government or have you known some ability to leave work without some consequence. So that’s a live issue to.

Adam Stirling [00:18:34] In a test case the B.C. Court of Appeal upheld upholding an award of special costs. What does all that mean?

Michael Mulligan [00:18:43] Yeah, well first of all, I chuckled when I read the name of the defendant in this test case from the Court of Appeal, the defendant is the Empire Life Insurance company versus.

Adam Stirling [00:18:57] The Mom and Pops Insurance Company where the Empire Insurance…

Michael Mulligan [00:18:59] Yeah, the Empire Insurance Company, if you want to take on the role of Goliath you might wish to name your insurance company the Empire Life Insurance company, not the We Care Friendly Home Coverage Company. But there it is, the Empire Insurance Company. So, this case involved that issue that you just mentioned the issue of awarding special costs. And we’ve talked about costs before and the basic concept there is that if you sue somebody and you are a sickly successful party, will ordinarily receive from the party who was successfully sued, the unsuccessful party will have to pay a portion of the legal expenses of the party who sued them. They do that; we have that rule for a number of reasons. One reason is that it encourages settlement. Right. If somebody sues you with very good reason and you know full well you’re going to lose; don’t drag the process out, because in addition to having to pay the money you would have been on the hook for anyways, you’ll also pick up a portion of their legal expenses. Bad idea. It encourages you to sort things out. So that’s one of the reasons, also from a fairness perspective, hey you know if you’re legitimately aggrieved you bring a case that you shouldn’t wind up effectively getting nothing in all of your money that you got went to pay the lawyer that you hired. Right. So that’s why we have it. But ordinarily costs are what are called party and party costs. And what that language really means is that you’re going to get a portion of what your actual legal expenses would be. You don’t just turn…you don’t just hand in your lawyer’s bill and you get a check from the other side. The reason we ordinarily have done on that basis is that, if you had somebody have to pay the full legal expenses, it might actually deter people from engaging in the legal process for fear of winding up with an actual giant bill. Let’s say the other side hires you know some high-powered expensive law firm to defend them…

Adam Stirling [00:20:53] drop a couple of Q. C’s into that.

Michael Mulligan [00:20:54] Yeah.

Adam Stirling [00:20:55] Yeah. Okay.

Michael Mulligan [00:20:55] You may think ‘oh my goodness’ I can’t carry on if I lose it’s going to ruin me. So, we have sort of a balancing. But judges have discretion to award what are called special costs. Those used to be known as solicitor client costs. And the idea of that would be now the other side has to pay the actual legal bill. Right. You get all of it reimbursed. And ordinarily those sort of that solicitor client or special legal costs would be used in cases where, for example, a party is engaged in some egregious conduct in the course of litigation, like somebody took the approach that you sued me with some meritorious claim, but I’ve just done everything in my power to drag this out bring a bunch of unnecessary applications, stymie everything, run up your expenses trying to grind you down. That’s the kind of conduct which would ordinarily produce the judge saying, look you’re going to pay the actual costs you engaged in really abusive behaviour in the course of the litigation. The case that just came out from the Court of Appeal was a test case. It was actually the lawyer for the person the appeal was Joe Arvay who’s a luminary in the legal community.

Adam Stirling [00:22:04] Yes, he is.

Michael Mulligan [00:22:05] And the issue is this the person making the claim against the Empire Life Insurance Company, was thinking a disability insurance claim. She had a job. She was diagnosed with M.S. Then she wound up using drugs in response to getting M.S. and her doctor eventually said she was unable to work due to anxiety and depression flowing from the M.S. until further notice. She had this disability insurance, which was supposed to pay her $2,084 a month. But the Empire Life Insurance Company said no we’re not paying. And so, she wound up going on C.P.P. disability benefits for $1,000 bucks a month well below the poverty line. So, she brought this claim to get her disability insurance paid. She was able to find a lawyer who specialized in doing that work and expend years pursuing this claim and it was for years the lawyer incurred fifty thousand dollars in disbursements, charged a small fraction of what their going rate would be to help this person out pursue the claim and won.

Adam Stirling [00:23:10] Yes.

Michael Mulligan [00:23:11] And so there is an award for $66,000 in past benefits and aggravated damages and Empire Insurance was told start paying the disability benefits. Well then came this issue of costs. And the lawyer didn’t claim that Empire Insurance had engaged in that kind of egregious conduct, like drawing the case out or making baseless applications just to grind down the other party. But they made instead the application that, all of the legal fees ought to be paid, because that would be necessary in the interests of justice. Right. It’s only fair that this person who would receive only this modest amount for disability coverage and is disabled and unable to work, saying look she should get her full costs paid the full…

Adam Stirling [00:23:56] Yeah. I find that to be very appropriate. I’m glad that that was the case.

Michael Mulligan [00:23:59] And the judge did it. The insurance company appealed; Empire Insurance company given that they’re a large empire. They appealed to the Court of Appeal and they lost. Arvay was successful there. The Court of Appeal found that they went through that analysis we talked about, about look you want to deter litigate litigation, you don’t want to have crushing costs, but found that in cases like this, particularly these kind of disability claims, we’ve got somebody who’s going to be impoverished trying to bring a claim against a large insurance company for disability benefits and in a fact pattern like this where otherwise it’s going to mean that this person who is disabled receiving this modest amount of money, would wind up paying a substantial portion of their legal fees, legal expenses from that modest award. That justice required that the Empire Insurance Company, pay the actual, although modest, legal fees charged by the lawyer who pursued, who pursued it. So, it’s a change in the law. And I think one for the best.

Adam Stirling [00:24:57] Mr. Arvay, very extremely capable legal counsel there never had the pleasure of meeting him myself. I am familiar with his work and many, many important cases.

Michael Mulligan [00:25:04] And he does take on these sort of important test cases and he’s moved the needle, and this is an example of that. And you know we have a common law system and the law moves in the Court of Appeal sort of made that point. You know though it doesn’t usually make lurching movements one way or the other. That would create an atmosphere of total unpredictability. But the law is something which can progress and move and in this case the needle’s moved in that direction and I think in a direction that’s all for the good.

Adam Stirling [00:25:33] I agree. Michael Mulligan pleasure as always. See you next week.

Michael Mulligan [00:25:36] Thank you.

Adam Stirling [00:25:37] Michael Mulligan from Mulligan Defence Lawyers in the second half of our second hour, every Thursday, Legally Speaking on CFAX 1070.


Legally Speaking – 2 million in cash to be returned and another Trans Mountain Pipeline appeal


The British Columbia Director of Civil Forfeiture ordered to return $2 million in cash that was seized as part of the largest money-laundering case in BC history, due to misconduct at an ex parte hearing. The decision can be found here and the reasons on the original ex parte hearing here.

“The Court must take the misconduct very seriously, because misleading statements in an ex parte hearing undermine the integrity of the process, and may even obliterate it.  Misleading statements are of all the greater concern when they are made on behalf of a state actor carrying public authority and trust, whose actions have significant implications for individual rights and interests.”

The Court of Appeal requires a new certificate be issued by the British Columbia Minister of Environment and Minister of Natural Gas for the Trans Mountain Pipeline, even though the province cannot prevent or impede construction or operation of the pipeline.

And one more example of why you shouldn’t try to conduct your own trial without a lawyer, as the Court of Appeal denies an after the fact application to unseal the youth court record of a complainant.


Automatically Transcribed on September 19, 2019 – MULLIGAN DEFENCE LAWYERS

Legally Speaking Sep 19, 2019

Adam Stirling [00:00:00] Time now for Legally Speaking on CFAX 1070 as always, joining us is Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael good morning. How are you?

Michael Mulligan [00:00:09] I’m doing great. Good to be here.

Adam Stirling [00:00:11] Some interesting stories to talk about today, including that thorny issue of civil forfeiture and where the balance should be struck between the ability of a person to have control over their private property and the ability of the state to seize that property, if indeed, the circumstances merited as just.

Michael Mulligan [00:00:30] Yeah this is I think an important case and it’s a substantial case in B.C. The decision that came out this week relates back to the case and I’m sure listeners are familiar with it’s that case where the Attorney General last year came out and said that he was quote” incredibly disappointed” by charges being stayed with respect to allegations of B.C.’s largest money laundering allegation ever. And the basics of that were, that there was an outfit storefront outfit over, and it was Richmond. And the allegation was that this outfit would, The Silver International, the name it went by would facilitate money laundering by providing funds to high rolling Chinese gamblers basically. And they would combine money laundering with circumventing China’s currency export requirements. The way that would work with somebody would want to come here who was a rich gambler, they couldn’t take enough money out of China in their private plane or whatever they were coming on, and this outfit was alleged to have taken cash, that would presumably be from some unlawful source, they would provide large amounts of cash was alleged serve a million and a half dollars a day, to prospective high rolling gamblers. So, they get their cash to go into the casino. They would go into the B.C. casino’s and by and large lose it in the casino. They weren’t like cashing it out to turn it into a check. They would do as most gamblers would and lose it in the casino. And then the high rolling gambler would repay the organization by a bank transfer in China. So, the organization would then allegedly launder the money by turning piles of cash, presumably with white powder on them, into a bank deposit in China. The high roller gets their money to gamble at the casino, B.C. gets the money. But that was viewed obviously as not being desirable given that it was facilitating allegedly money laundering.

Adam Stirling [00:02:30] I was going to say it’s the gambling of the money is not the issue it’s getting those dollar bills to the high roller in the first place the activities that must be engaged in, the white powder perhaps involving activities.

Michael Mulligan [00:02:41] Ya.

Adam Stirling [00:02:41] That causes real harm to the public.

Michael Mulligan [00:02:43] And it’s also it’s an offence actually to be in possession of proceeds of crime.

Adam Stirling [00:02:47] Oh really.

Michael Mulligan [00:02:47] You’re not permitted to just say sure give me your bag of drug money I’ll happily change it in to…

Adam Stirling [00:02:52] I didn’t know that was its own offence.

Michael Mulligan [00:02:53] That its own offence, can’t’ do that.

Adam Stirling [00:02:54] Alright.

Michael Mulligan [00:02:55] If you’re offered the bag of money. Don’t take it.

Adam Stirling [00:02:57] All right.

Michael Mulligan [00:02:58] In any case those charges against individuals were stayed or dropped last year producing the Attorney General coming out saying how incredibly disappointed he was by that turn of events. It would appear in retrospect that that may have occurred as a result of the charges being dropped, as a result of inadvertently identifying police informants in the case, and they had to drop the proceedings to avoid identifying these people and presumably putting them in grave danger.

Adam Stirling [00:03:25] Was there a disclosure error. I can’t remember if that was this case.

Michael Mulligan [00:03:28] That’s what it appears to have been sort of a, whoops we accidentally sent out information about who the informants were. Stop the proceeding.

Adam Stirling [00:03:36] Like the reply all joke at the office where you send the e-mail to everybody. But that’s not what happened. But that sort of horrible oh no we disclosed to the wrong thing to the wrong side. OK.

Michael Mulligan [00:03:45] So the criminal charges get dropped. The Attorney General’s incredibly disappointed. Then counsel for the individuals who were charged made an application for the return of a bunch of things which had been seized as part of that criminal investigation and the proceeds of crime. Those things included: two million dollars in cash, some casino chips, a property in Richmond, which we made some fun of I think at the time on the radio given it’s rather tasteless although obviously expensive appearance.

Adam Stirling [00:04:15] I recall that it was very ornate and distinct.

Michael Mulligan [00:04:18] It was as varied as I think it had columns maybe a lot of gold leaf on it. It was the sort of you know, it is perhaps just the picture itself might suggest…

Adam Stirling [00:04:26] That is the central theatrical version of the house that you want to check.

Michael Mulligan [00:04:29] Yes.

Adam Stirling [00:04:30] Ya, Ya, All right.

Michael Mulligan [00:04:30] So it involved these various things. When the charges were stayed or dropped. Counsel for the accused made an application for the return of the things that had been seized as part of that investigation. And a judge ordered those things returned, pursuant to a provision of the Criminal Code that allows for an order for things to be given back when the proceedings aren’t going on anymore. So that was asked for in the order was made. The Attorney General then comes out and makes these statements about being incredibly disappointed and needing better coordination with the federal government and prosecutions. It’s all a terrible tragedy. Then what happens? That brings us to the case this week. So about two or three weeks go by and when one of those orders is made for the return of property there’s a 30-day waiting period before it becomes effective. That allows for an appeal. All right.

Adam Stirling [00:05:18] That makes sense.

Michael Mulligan [00:05:19] But rather than appealing the order under the Criminal Code that the money and other stuff be given back. What the Provincial Government does, in the form of the Director of Civil Forfeiture, is that they show up in court in Victoria on December the 20th, pursuant to the Civil Forfeiture Act a Provincial Act which allows for the province to on a civil basis try to seize property that they believe to be the proceeds of crime or property which would be sort of involved in criminal activity. Right. Now that Civil Forfeiture Act is one which is different from the Criminal Code for a number of reasons. First of all, you need not be convicted of anything; second of all, it’s a civil thing, so the standard would be probably was this stuff the proceeds of crime, or property used in an offence.

Adam Stirling [00:06:12] Than balance of probability. Is that the term?

Michael Mulligan [00:06:14] That’s right.

Adam Stirling [00:06:15] Where are you… The judge is presented with the two scenarios and prefers which one is more likely.

Michael Mulligan [00:06:19] Yeah that’s right.

Adam Stirling [00:06:20] OK.

Michael Mulligan [00:06:20] And moreover they’ve even now reversed the burden. So, you would have to prove that the stuff the government wants to take is not the proceeds of crime. So, there would be some reason to argue that that Act may be unfair. It’s how it operates, right, sort of causing somebody to have to prove that their property was not the proceeds of crime in order to get to keep it. But nonetheless, that’s the law in British Columbia. So, what happens on December 20th? Well, a lawyer for the Director of Civil Forfeiture. Now it’s the Director Civil Forfeiture is an employee of the Provincial Government, shows up in court in Victoria having filed an application the day before, and on what’s called an ex parte basis, makes an application to keep all of this stuff, the money and other things, which a judge a few weeks earlier had ordered returned. Now here’s how things started to go off the rails in this case. And as was illuminated in the decision which came out this week, when in a civil case, just like in a criminal case, I suppose. There would be a strong presumption that, if you’re going to be suing somebody, you’re going to court asking for some order, that the other party be given notice of it. You tell them. And so that permits a number of things which would sort of go-to broad fairness like, allowing that person or their lawyer to show up in court and argue why you shouldn’t get what you’re asking for. Right. That’s generally how it works. You have an adversarial system which relies upon both people being told about what’s being asked for. And so, they could come to court and argue why it should or shouldn’t happen. But here the lawyer for the Director of Civil Forfeiture chose not to do that didn’t and showed up in court in Victoria to make what one of these things called an ex parte application.

Adam Stirling [00:08:06] I guess say it’s out of one side. Right. Oh.

Michael Mulligan [00:08:08] Yeah.

Adam Stirling [00:08:08] One part is like.

Michael Mulligan [00:08:09] I haven’t even told the other side this is happening. It’s the lawyer going in front of the judge saying, look I’m just here asking for something and I haven’t even told the other side about it and they’re not here. So that’s what the lawyer for the Director Civil Forfeiture chose to do. And the law on that is clear in this respect. And this I think goes to sort of the broader issue of the obligations of a lawyer. Lawyers aren’t simply an advocate. You can’t just go into anything you might possibly do to sort of advantage your client. And when a lawyer is showing up on one of these ex parte applications, this is the language used; the duty on counsel in an ex parte application is weighty indeed. The law is clear that an applicant must make full frank and fair disclosure of facts known to them that would support the position of the other side. You’ve got to present the whole thing. You can’t show up on an application where you haven’t even told the other side about it and just act like an advocate only telling the judge things you think will help your side. You’ve got to show up and you’ve got to provide the whole picture to the judge because after all you’ve sort of subverted the basic starting point which should be. Tell the other person what you’re doing so they can come out and argue against it.

Adam Stirling [00:09:16] An adversarial system without an adversary.

Michael Mulligan [00:09:18] Yeah not much of a system.

Adam Stirling [00:09:20] Yeah.

Michael Mulligan [00:09:20] So there’s this very high burden on counsel to do that. You’ve got to tell the judge about the other side’s possible arguments things that might be an issue. And when you read the decision that came out on December 20th you can see that the judge hearing that which was a different judge from the one who ordered the stuff be given back the money, was very concerned about it. That’s why you can see in the reasons, concerned about why the other side wasn’t told and you know those basic requirements. And here’s where things went really off the rails as elucidated by the decision which just came out this week from Associate Chief Justice Holmes, which dealt with the Director of Civil Forfeiture showing up and asking that this interim order continue. Right, because the interim order that they got without telling the other side didn’t go on forever. And when they showed up the Director Civil Forfeiture showed up asking that this thing carry on and they get to keep the money. Basically. They then got a transcript of what the lawyer said back in that application on December 20th. And the judge that had to deal with the matter this week found that, this is the important part, this essentially this; in essence the Directors Counsel conducted herself as an advocate for the Directors position in responding to Justice Johnston the judge who heard that thing December 20th, concerns about having the hearing take place ex parte, and in the face of the Section 490 order, the other one the judge had been to give the stuff back, said that the lawyer allowed no room for opposing views, views of the law, or its application to the situation, made no apparent effort to put forward the position of the opposing counsel would likely have taken, had they been present. And she also misstated the law on one foundational point in a way that favoured the Director’s position.

Adam Stirling [00:11:04] That’s not good.

Michael Mulligan [00:11:04] Now you know, courts aren’t, and judges aren’t known for making sort of over-the-top inflammatory language but that’s about as strong as you’re going to see from a judge to criticizing Counsel for how they’ve conducted the application. And the reason why I think this is important for people is the judge goes on to make clear that her criticism isn’t simply with respect to the particular lawyer who showed up making that application to keep the stuff without telling the other side. The judge made clear that her concern was, that it included the fact, that the Director’s response to the application, like the hearing that took place most recently about whether that should go on, indicated or suggested to her, that it did not inspire confidence that a different approach should be taken in the future. And the… With respect to misstatements on the law, the way the counsel conducted themselves and the judge found that a whether the through the original lawyer showing up there in December the misstatements were a result of carelessness or confusion on counsel’s part or whatever it might be. It was particularly troubling that the Director of Civil Forfeiture continued to not acknowledge the serious problem caused when somebody shows up and acts in that fashion sort of as a pure advocate, not providing a clear statement of the other side, doing it without telling the other side. The judge found that the conduct of the civil… Director of Civil Forfeiture must be taken very seriously. Misleading statements on the ex parte hearing undermined the integrity of the process and may even be obliterated, indicated the judge found that misleading statements are of greater concern when they are made on behalf of a state act carrying public authority and trust.

Adam Stirling [00:12:53] Interesting.

Michael Mulligan [00:12:53] So it was a round condemnation of how the Director Civil Forfeiture conducts himself in December and the fact that they didn’t acknowledge how problematic behaving in that way is and how that can undermine confidence in the system, generally. The result of all this is that the Associate Chief Justice Holmes refused the Director’s Application to continue to keep the money. That result of this is going to be the two million dollars in cash is going to go back to the people alleged to been running that money laundering operation and the not unreasonable concern that the Director expressed was, well we’re not likely to ever see that again, that’s likely to disappear into the ether. And that may well be so. But the takeaway message here and it’s an important takeaway message is that when counsel are acting on behalf particularly of a government entity, that’s doing something like this, trying to take somebodies property, you have to take very seriously, your obligations as counsel to ensure the integrity of the process. And that means you can’t simply conduct yourself as an advocate. It’s not enough to show up and say anything you think might help your side when you’re not telling the other side about your application in particular. There just needs to be full frank and complete disclosure. And the really troubling thing here based on the findings of the judge is that the Director Civil Forfeiture, still doesn’t seem to acknowledge how problematic that behaviour was back in December. It causes the judge great concern that that kind of behaviour may not change in the future. So that’s a round condemnation about how that office is conducting itself. And from a public point of view the net result of this now is; not only where the criminal allegations stayed as a result of a appears to be mistakenly identifying the informant. Now the two million dollars in cash is going to be returned to the people who are alleged to have engaged in that and that has happened because of how the Director of Civil Forfeiture chose to conduct its business in this case.

Adam Stirling [00:15:05] Not a great day for the B.C. government. Quick break, after the break. Court of Appeal of British Columbia and the Trans Mountain Pipeline, son of the ruling recently a partial appeal allowed what does it mean and what happens next we’ll talk about it after this [00:15:18][13.3]
Commercial [00:15:19] COMMERCIAL BREAK

Commercial [00:19:02] It’s Adam Sterling on CFAXs 1070.

Adam Stirling [00:19:05] Well the nice thing about the horrible pipeline war that never ends, is I get to learn all about Canada’s legal system; for example, the Federal Court of Canada. We learned about that when discussing the litigation between Alberta and British Columbia. I didn’t even know that level of court existed. I knew there was a Federal Court of Appeal above it. Now the B.C. Court of Appeal, a different court, yet again, making a ruling a partial appeal allowed regarding an environmental assessment certificate given by the province in relation to the Trans Mountain Pipeline. Michael Mulligan help us understand what’s happening.

Michael Mulligan [00:19:39] Sure this one sure does need a little bit of explanation. So, this is a Court of Appeal decision which just came out. It was an appeal brought by the Squamish Nation and others, challenging the issuance of an environmental assessment certificate pursuant to the Environmental Assessment Act, which was a Provincial act in British Columbia. Now if you look at the Environmental Assessment Act of B.C. It would contemplate a requirement for various large projects like this pipeline being a requirement. And it is something which ultimately would be a certificate issued by the British Columbia Minister of Environment and Minister of Natural Gas. So, this was a challenge brought saying, hey you shouldn’t have issued that certificate, and furthermore the Squamish Nation says you didn’t consult with us sufficiently before deciding to issue the certificate. Now here is the point that kind of makes this ruling a little a bit of a head-scratcher. The Provincial Government, we should remember, has no authority to regulate the construction or operation of an interprovincial pipeline. And this was a point where all the parties to this litigation agreed. The court said this: “the parties except the British Columbia cannot prevent or impede construction or operation of the pipeline”. What is really gone on here, is that the Province of British Columbia has passed this act the Environmental Assessment Act, that requires one of these certificates to be issued and it would be issued on the basis of the Minister reviewing a report prepared by the Federal Agency the National Energy Board report on it. Now the Provincial Government did consultation with the Squamish Nation and others about the issuance of the certificate, but the thing is they are required to issue the certificate and even if the certificate wasn’t issued it can have no practical impact whatsoever because the Province of British Columbia has no authority to impede the construction of the pipeline or its operation. So, while we have a legal regime in place that contemplates the Minister having to issue one of these certificates; the certificate or absence of a certificate can’t really impede the operation of this or construction of this pipeline. Well really at all. So, I’m hard-pressed to imagine quite what that consultation or accommodation might look like, given that you know we can’t do anything about it. But nonetheless, it’s a legal requirement that this thing be produced and there be consultation before it be produced and so hence this litigation that now wound its way up to the Court of Appeal. Interestingly, the Court of Appeal at the end of the day found that the consultation was adequate.

Adam Stirling [00:22:25] Which is interesting because that stopped Northern Gateway that stopped Trans Mountain on August 30th, 2018. So that was fulfilled in this case.

Michael Mulligan [00:22:31] True, but I can’t. It’s really hard again for me to imagine quite what that accommodation and consultation looks like when, ultimately, the person who’s negotiating and consulting with you and accommodating you, really has no control over the thing at the end of the day anyways because it’s just out of their Constitutional Jurisdiction. But there we are. The nonetheless the Court of Appeal found that the consultation was adequate. That may have some bearing on what the Federal Court of Appeal does now when it’s examining the consultation that occurred over the past year, but through no fault of anyone, and if the court finds the Minister who is required to issue the certificate must review the new report that was prepared by the National Energy Board following that last appeal up to the Federal Court of Appeal and then must issue the certificate again. That’s just all various requirements of this Provincial Act. So presumably they will do so, but once again it seems to me on, when you carefully consider all of this, it’s a requirement to issue a certificate that really can have no impact whatsoever if the Minister didn’t issue the certificate it seems to me. What difference does that make your level of government has no control over this, but there it is. So now presumably the Minister of Environment and Minister of Natural Gas Development will review, as they are required to under the Act, the new and updated environmental assessment report will appear by the National Energy Board and shall issue that certificate. Because all of that of course is a requirement of the Provincial Environmental Assessment Act. But it’s all so much a legal requirement without much impact because the province just doesn’t have control over this.

Adam Stirling [00:24:10] Fifteen years since Haida and we’re still working out that template on what the constitutional duty to consult and accommodate Aboriginal peoples really means.

Michael Mulligan [00:24:18] Yes.

Adam Stirling [00:24:19] We’re getting there.

Michael Mulligan [00:24:19] We’re getting there.

Michael Mulligan [00:24:20] But once again, I don’t know what that accommodation looks like when you’re consulting and accommodating yet have no authority to do anything. It’s sort of like some municipality setting up some bylaw whereby they must issue some certificate to approve the pipeline. That’s all very interesting, but it’s just not there… that’s just not their area.

Michael Mulligan [00:24:41] Burnaby tried to do that with their tree cutting permit, denying it. The Provincial Government became an intervenor in that case. They got crushed. Kinder Morgan got costs. That’s how that trial ended or that case ended. Michael Mulligan pleasure as always, we have 80 seconds left. I know you’ve got some other stories here. Would you like to reflect on this story?

Michael Mulligan [00:24:57] Sure.

Adam Stirling [00:24:57] You’ve done or talk about the new one.

Michael Mulligan [00:24:59] I think I can probably sum it up in 80 seconds. So, this was another decision over the B.C. Court of Appeal this week. The underlying issue was a fellow trying to appeal his long since a passed conviction for sexual assault that arose out of some activity with a person who was 14 years of age and the issue was whether that person had said that she was 14 or not. That’s the underlying issue. The appeal this week dealt with this fellow’s effort to try to get a copy of this person’s alleged youth court record, the young person, and he says that that would have had some impact on the original trial because it might have gone to that person’s credibility. His problem was that he did that trial on his own. He didn’t have a lawyer.

Adam Stirling [00:25:43] Oh no.

Michael Mulligan [00:25:43] There has to be an application made to unseal a youth court record to get that thing. He didn’t have a lawyer. He didn’t know he had to make that application. He didn’t get the record and he was convicted by a jury a number of years ago and he’s ever since then been struggling to try to get this thing and have a new trial. He hasn’t gotten very far. The Court of Appeal finally concluded that there is no jurisdiction to under seal, unseal the youth court record on appeal, that had to have been done way back at the time of trial. The takeaway from all of this is don’t try to conduct your own jury trial, if, at all possible, that’s not going to go well for you, and trying to unscramble the egg afterwards is likely to be a multi-year effort and frustration as it will be, as it has been now for this fellow. We’ll never know what the result might have been had the application has been made prior to the trial, but there it is.

Adam Stirling [00:26:31] Michael Mulligan thank you for your knowledge and insight as always appreciate it.

Michael Mulligan [00:26:34] Thank you.

Adam Stirling [00:26:34] Michael Mulligan every Thursday here at CFAX 1070, Barrister and Solicitor with Mulligan Defence Lawyers.


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.