Victoria Lawyer Michael Mulligan, on CFAX 1070, discussing the federal government approval of the Drager Drug Test 5000 for roadside drug screening.
Recent amendments to the Criminal Code, that come into force in December, will permit police officers to make alcohol screening demands without any grounds to suspect a driver has been drinking. In addition, where police officers have reasonable grounds to suspect someone has drugs in their body, they will be permitted to demand a saliva sample for the purpose of drug screening.
The first machine that has been approved by the federal government for roadside drug screening is the Drager Drug Test 5000.
Drager has posted a video on YouTube that provides an overview of how the Drager Drug Test 5000 works: https://www.youtube.com/watch?v=J3tnMnsvQHA
Several are apparent from a review of the video which suggests the device may not be practical for roadside operation.
In order to obtain a sufficient amount of saliva for analysis, a police officer would need to swab around a suspect’s mouth for between one and four minutes while ensuring that the suspect doesn’t suck or chew on the collection device.
Once a sufficient amount of saliva is collected in a plastic collection tube, the device would then require approximately 15 minutes to perform an analysis.
The device will not operate correctly unless kept within 10 degrees of level and, according to the written description of the device, needs to be between 5 and 40 degrees Celsius during operation.
In addition to the discussions surrounding the drug testing device, two recent British Columbia Court of Appeal decisions were discussed.
In Barter v. British Columbia (Adult Forensic Psychiatric Services), the court dismissed an appeal from a decision by the British Columbia Review Board to deny an absolute discharge to a man who was found not criminally responsible for a murder he committed in August of 2010. The process for monitoring someone who is found to be not criminally responsible as a result of a mental disorder is discussed, along with the test to be applied where there is an appeal of a decision to the Court of Appeal.
Another decision of the Court of Appeal, R. v. Oler, is also discussed. This case involved a man who was acquitted at trial of an offence relating to taking his 15-year-old daughter to the United States to be married in a polygamist ceremony. The trial judge found him not guilty as there wasn’t evidence that the father did anything to remove his daughter, while he was in Canada. The trial judge relied on a general provision of the Criminal Code that requires an offence to occur in Canada. The Court of Appeal found that this general provision didn’t apply because there was a “real and substantial link” to Canada and ordered a new trial.
Listen to the show here.
Victoria lawyer Michael Mulligan commenting on challenges relating to bail decisions in a Times Colonist article by Louise Dickson. An 87 year old man, with no criminal record, died in jail after his bail hearing was adjourned.
Victoria Lawyer Michael Mulligan, on CFAX 1070, discussing the civil claim filed against Extreme Air Park Inc. on behalf of the surviving spouse and three children of Jason Greenwood. Jason Greenwood died after jumping in a foam pit at Extreme Air Park in Richmond.
The legal issues discussed include the potential effects of a liability waiver and the challenges of collecting on a judgment.
As explained in the 2009 British Columbia Supreme Court decision of Wong v. Lok’s Martial Arts Centre Inc. a liability waiver signed by a parent does not prevent the child from suing. It would seem that the implications of this decision are not well understood, as parents continue to be asked to sign liability waivers on behalf of children. In many cases, the only effect of these waivers may be to dissuade parents from seeking legal advice in the event that a child is injured.
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Victoria lawyer Michael Mulligan commenting on changes to impaired driving laws in a Times Colonist article by Louise Dickson. The changes will permit random alcohol testing and will set THC limits that may not correspond with actual impairment.
Victoria lawyer Michael Mulligan commenting in story by Tess van Straaten on CHEK News: What would, and would not, be assisted by granting pardons for marijuana possession convictions. Canadian pardons are not recognized by the United States. If the United States authorities are aware of a drug conviction, they are likely to deny entry even if the conviction has been pardoned.
Pardons would also not prevent the conviction from showing up if a vulnerable sector check was done as a result of someone wanting to work, or volunteer, with “vulnerable” people. This can include activities such as coaching a sports team.
Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – Discussing a report from the Legal Services Society on one of the impacts of inadequacy legal aid funding, as well as the BC Attorney General suing the Alberta Attorney General over Bill 12 that purports to allow the Alberta government to “turn off the taps” in response to BC opposition to the expansion of the Kinder Morgan Trans Mountain Pipeline.
In 1992 a special tax was added to legal service in British Columbia for the purpose of funding legal aid.
As a result of the BC government continuing to divert more than half of the money being collected pursuant to the spacial tax, the Legal Services Society, which provides legal aid, continues to be dramatically underfunded.
In 2016 the BC government collected $193.1 million from the special tax but only provided $72.6 million to the Legal Services Society. Of the $72.6 million, $14.7 million of this was actually a transfer from the federal government to the province of BC to help pay for legal aid.
As a result, in 2016, the BC Government collected $135.2 million more from the special tax on legal services than it spent on legal aid.
In 2018, the BC Government increased legal aid funding by only $4.8 million, but continued collecting all of the money from the special tax.
The diversion of the tax revenue, and resulting underfunding, has created three serious problems:
- The financial threshold to receive and legal aid assistance of any kind is so low that many people requiring help are both ineligible, and unable to afford to hire a lawyer. For a single person facing a criminal charge, the income cutoff is $1,580 per month. Someone with a full time, minimum wage, job would make too much money to receive legal aid.
- Many areas of law that were previously covered by legal aid have been eliminated such as poverty law, and most areas of family law. These cuts have had a disproportionate impact on women.
- Even where someone makes so little that they are eligible for help, the amount of money available to hire a lawyer is so low that it can be difficult to hire an experienced lawyer, or for any lawyer to spend the time required to deal with the legal problem.
The report from the Legal Services Society addresses the inadequacy of the amount of money available to hire lawyers to assist people. The amount of money the Legal Services Society is able to pay lawyers has increased only once since 1991 and has remained unchanged since 2006.
The report points out that while the BC Government has increased the amount is pays lawyers to advocate for the apprehension of at risk children, and to prosecute criminal cases, has increased by approximately 60% from 2006 – 2018, there has been no increase in the amount paid to defend these same cases over this same period of time.
By way of example, the report points out that the amount of money available to hire a lawyer to conduct a judicial interim release (bail) hearing in an ordinary criminal case is $100. The preparation for, and conduct of, a bail hearing can take several hours.
Where hourly fees are paid, they are ordinarily $84 – $92 per hour and are often the amount of time that is paid for is significantly less that what is actually required to solve a legal problem.
Where a lawyer, who is prepared to assist at legal aid rates, is found they often end up working for less than their hourly overhead costs and are not paid at all for many things required to adequately represent a client.
Requiring low-income people to depend on lawyers proving services on a charitable basis is not apropriate, particularly where more than half of the money being collected to pay for legal aid is not being used for its intended purpose.
Also discussed in the program is the lawsuit that the Attorney General of British Columbia commenced against the Attorney General of Alberta, challenging the constitutionality of Alberta Bill 12 which purports to permit the Alberta government to “turn off the taps” on fuel exports to British Columbia in an effort to punish British Columbia for opposition to the Kinder Morgan Trans Mountain Pipeline expansion.
The Statement of Claim, filed in the Alberta Court of Queens Bench, makes extensive reference to the various statements made by the Alberta Premier, and other government officials, with respect to the purse of the impugned legislation. These include a tweet by the Alberta Premier that this Bill 12 is intended to “impose serious economic consequences on British Columbia.”
Because inter-provincial tariff like barriers are prohibited by the Canadian Constitution, the various public statements referenced in the Statement of Claim may serve to undermine its constitutionality. Even if the purpose of the legislation might not be clear from the wording of Bill 12, the public statements referenced in the Statement of Claim make its purpose clear.
The BC Attorney General is asking the Alberta Court of Queens Bench to declare Bill 12 to be inconsistent with the Constitution of Canada and of no force and effect.
Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at 10:30am on Thursdays.
Victoria lawyer Michael Mulligan commenting on Elizabeth May being charged with criminal contempt with respect to Kinder Morgan pipeline protest. Courts are concerned with the rule of law being undermined by willful, public breaches of court orders.
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.
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