DNA from Missing Persons and Specialized Courts

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – Discussing the expansion of the DNA Data Bank to include DNA from missing persons and various specialized Provincial Courts including the Drug Treatment Court in Vancouver, Integrated Court in Victoria, and First Nations Court.

Until recently, only people convicted of various criminal offences could be ordered to provide DNA samples for inclusion in the Canadian DNA Data Bank. Some convictions, such as those for sexual assault or murder, are categorized a primary designated offences. If someone is convicted of a primary designated offence, a judge is required to order the person to provide a DNA sample. For other offences, a judge has discretion concerning the requirement to provide a DNA sample.

Recent change to the DNA legislation will permit DNA from missing persons to be added to the Data Bank. Where no DNA is available, the DNA from close family members could be used. DNA from unidentified deceased people will also be added. The hope is that missing persons might be identified to provide closure for families.

The DNA regime is different from the legal regime that authorizes fingerprints and photographs to be taken by the police. Unlike with DNA, the fingerprints and photographs can be collected from people charged, but not convicted, of indictable offences.

Also discussed are some of the specialized BC Provincial Courts. These include Drug Treatment Court in Vancouver, Integrated Court in Victoria, and First Nations Courts in Duncan, Nanaimo, North Vancouver, and Kamloops.

Drug Treatment Court in Vancouver deals with individuals who commit offences to support their addition to hard drugs including cocaine, heroin and other opioids, or crystal methamphetamine. It requires participants to engage in drug treatment and testing in combination with support form health and social service agencies. Individuals in the program appear regularly in court to monitor their progress.

Victoria Integrated Court operates with the support of outreach teams comprised of police, social workers, mental health professions and probation officers. The target demographic are individuals who often have a combination of mental health and addiction issues who also often lack stable housing. The provision of proactive, intensive, community support and supervision can be both helpful for the individuals involved, as well as reduce the number of emergency room admissions, police dispatches, and other expensive interventions that would otherwise result.

First Nations Courts permit First Nations Communities to participate in the sentencing process for aboriginal people.

Aboriginal people make up approximately 3% of the Canadian population. In 2016, 26% of men admitted to provincial or territorial jails were aboriginal. The overrepresentation of aboriginal women is even more profound: 38% of women admitted were aboriginal.

First Nations Courts are intended to support rehabilitation, reduce recidivism, and recognize the unique circumstances of aboriginal offenders.

All of these specialized courts deal with sentencing, rather than trial, and are only engaged if an individual chooses to participate and plead guilty.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at: 10:30am on Thursdays.


Lawyers need to get comfortable with digital evidence

Victoria Lawyer Michael Mulligan discussing the need for lawyers to get comfortable with digital evidence in an article by Carolyn Gruske for The Lawyer’s Daily:


Expungement of Historically Unjust Convictions Act

Victoria Lawyer Michael Mulligan on CFAX 1070 – Discussing the Expungement of Historically Unjust Convictions Act and the case of Everett George Klippert.

Bill C-66, the Expungement of Historically Unjust Convictions Act, was introduced the same day as Prime Minister Trudeau issued an apology to LGBTQ people in the public service, RCMP, and military who were systematically persecuted.

The Expungement of Historically Unjust Convictions Act will permit people, or their families, to apply to the National Parole Board for expungement of convictions for Criminal Code provisions that criminalized consensual sexual activity.

A notorious example of the application of these Criminal Code provisions was the case of Everett George Klippert. In 1966 he was convicted of gross indecency for engaging in consensual sexual activity with other men, was declared a “dangerous sexual offender” and given an indefinite jail sentence as a result a court concluding that he “had shown such a failure and was likely to cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses or was likely to commit a further sexual offence.”

This conclusion was based in part on the opinion of two psychiatrists who found that Mr. Klippert was “incurably homosexual.”

The designation as a dangerous sexual offender was upheld by the Supreme Court of Canada on a 3 – 2 split decision

Gross indecency was removed from the Criminal Code in 1969. The legislation was introduced by Pierre Elliott Trudeau.

Mr. Klippert remained in jail until 1971.

The operation and effectiveness of the Expungement of Historically Unjust Convictions Act, pardons, and criminal record suspensions are discussed in the show.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at a new time: 10:30am on Thursdays.




Online backlash grows after cat is abused in Duncan

Victoria lawyer Michael Mulligan commenting in CHEK News story by April Lawrence.

The online backlash caused by the abuse of a cat in Duncan, has expanded to include information identifying young suspects and threatening them with death and bodily harm.

The Youth Criminal Justice Act makes it a criminal offence, punishable by up to two years in jail, to publish the identity of young people being dealt with under the act. Publication can include online publication.

The reason for the prohibition on publishing the identify of young people is the desirability of rehabilitating young people and not permanently marking them as a result of a youthful transgression.

Threatening death or bodily harm, or counselling others to commit an offence, are also criminal offences.

Watch the story here: https://www.cheknews.ca/online-backlash-grows-cat-abused-duncan-390763/



Changes to Impaired Driving Laws for Marijuana and Alcohol – CFAX Legally Speaking

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing proposed changes to impaired driving laws for both drugs and alcohol.

Bill C-46 has passed third reading and, if it becomes law, will make a number of significant changes to impaired diving laws in Canada.

Currently, before a police officer is permitted to require a driver to blow into an alcohol screening device, they are required to have reasonable grounds to suspect that the driver have alcohol in their body. The proposed changes would permit alcohol screening tests to be required without any grounds to suspect a driver has alcohol in their body.

In some parts of the United States, where random blood alcohol testing has been authorized, courts have required police to publish in advance how and where testing will be conducted in order to guard against testing being demanded on the basis of discriminatory factors such as race.

In addition, as is currently the case for alcohol, new offences would be created if a driver has specified levels of THC in their blood. This is proving to be controversial as there is no scientific consensus with respect to what levels of THC would actually impair a person’s ability to drive.

Frequent users of marijuana could have the prohibited levels of THC in their blood for days after they last used marijuana. They would be subject to criminal prosecution if they drove during this time.

It is likely that the proposed legal changes will result in legal uncertainty with respect to both the constitutionality of random breath testing as well as THC limits that may not correspond with impairment.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at a new time: 10:30am on Thursdays

RCMP Agent Admits Killing Two People – CFAX Legally Speaking

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the evidence of an RCMP Agent who admitted to killing two people under oath.

During a Victoria drug trafficking trial, an RCMP agent admitted to killing two unrelated people. The RCMP agent, Matthew Holland, has a criminal record for offences including manslaughter, but has not been arrested or charged with respect to the two people additional people he testified that he killed.

Mr. Holland testified that one of the people he killed picked him up hitchhiking. He testified that he beat the man severely, dragged him from his car, and left him for dead somewhere along the Malahat. He testified that he did this twenty years ago.

He also admitted to beating, stomping on, and leaving a man, apparently dead, behind a bar in Courtenay.

Because Mr. Holland’s admissions occurred in court they could not be used against him in a prosecution for the offences he admitted to. Independent evidence would be required.

The decision by the RCMP to employ someone like Mr. Holland raises important questions about the need for civilian oversight of the RCMP. Mr. Holland was paid more than $100,000 by the RCMP to work for them and purchase cocaine as part of a drug investigation and has not been arrested for the crimes he has admitted committing.

Listen to the show here.

Read the transcript of Mr. Holland’s admissions here.

Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.

Expedite Accident Clearing – Michael Mulligan on CFAX Legally Speaking

 Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing a proposal by North Vancouver to amend the Motor Vehicle Act to expedite the clearing of car accidents.

Currently, Motor Vehicle Act regulations require police officers to complete an accident report when there appears to be more than $1,000 in damage.

In some circumstances, this can result in vehicles being left to block traffic on busy roads or bridges.

The District of North Vancouver has submitted a resolution for consideration by the Union of BC Municipalities to increase the threshold for mandatory accident reports to $10,000 in order to expedite the clearing of accidents.

The proposal has been met with resistance from police officers who have argued that statistical information from minor accident can assist in identifying dangerous locations.

Listen to the show here: Legally Speaking.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 107o Thursdays at 2:00pm.

An alternative to an ICBC rate hike – a deductible

Victoria Lawyer Michael Mulligan on CHEK News proposing an alternative to a 30% ICBC rate hike: adding a deductible for drivers who cause accidents. Requiring divers who cause an accident to pay a deductible, such as that which applies if you make a claim for a broken window, would save ICBC money directly and encourage safe driving without requiring substantially increased premiums for drivers who don’t cause accidents.

Harold Backer released on $50,000 bail

Victoria Lawyer Michael Mulligan comments in a story by April Lawrence on CHECK news:

Nobody was answering at the Chemainus home where Harold Backer has been ordered to stay while awaiting trial on fraud charges.

The home belongs to his mother, who told CHEK News by phone she is glad to have her son home to help her.

When asked where he disappeared to for a year and a half, she said she couldn’t tell.

Early Monday evening a scruffy and gaunt looking Backer walked out of the Victoria courthouse after more than two weeks in custody.

He was granted $50,000 bail, and was picked up by his son, refusing to answer any questions, including where he was or why he turned himself in.

It was that act, of coming forward to police, that one criminal lawyer says is likely the reason the 54-year-old was released.

“Where you have an individual who has no previous record, who turns himself in, those would be important considerations for a judge in deciding whether a person needs to be held in custody before they’ve had a trial,” said Michael Mulligan, a criminal lawyer with Mulligan, Tam Pearson in Victoria.

Backer has to abide by 14 conditions while out on bail — they include staying at the home in Chemainus and following a curfew from 11 p.m. to 6 a.m., he has to report to a bail supervisor once a week, he can’t trade any securities or work as an investment advisor and he had to surrender all travel documents including his passport.

Mulligan says for the most part, Canada’s bail system of conditions and supervision is effective.

“If you kept everyone in jail waiting for their trial that’s going to make the presumption of innocence pretty hollow sounding for someone who’s alleged to have committed an offense,” said Mulligan.

The former Olympian is being represented by a criminal lawyer from Vancouver who isn’t commenting on the case for now.

Backer is facing two charges of fraud over $5000 dollars, and is also the subject of a civil suit.

One of the alleged victims tells CHEK News the images of Backer emerging from the courthouse show he is “suffering”.

Harold Backer will return to court June 5.