The week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has found that making people ineligible to even apply for parole for 150 years is cruel and unusual punishment.
In 1967 Canada repealed the Criminal Code provisions that allowed people convicted of murder to be put to death by hanging, except in the case of on-duty police officers and prison guards. These last exceptions were finally repealed in 1976.
The death penalty provisions for murder were replaced by mandatory sentences of life in prison.
As life sentences for murder remain mandatory, the only issue for a judge to decide is the parole ineligibility period.
Being eligible to apply for parole does not mean that someone would be successful in getting parole. The primary issue when someone applies for parole is the safety of the community, and if a prisoner remains a danger, they may never actually receive parole. The ineligibility period simply means that a prisoner could not even ask for parole.
For second-degree murder, parole eligibility can be set at between 10 and 25 years. For first-degree murder, it is 25 years.
Several years ago, parliament amended the Criminal Code to permit consecutive 25-year parole ineligibility periods when someone is convicted of the first-degree murder of more than one person.
The Supreme Court of Canada concluded that prohibiting a prisoner from even applying for parole for longer than anyone might live is cruel and unusual punishment.
Similar decisions were reached in Germany, France, and Italy in previous court cases in those countries.
The Supreme Court of Canada concluded that a jail sentence with no possibility of release is degrading in nature and presumes that the offender is beyond redemption. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation even in cases where the prospect of this is very low.
The court found that the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences and that beyond and certain threshold, these objectives lose all their functional value, especially when the sentence far exceeds the human life expectancy.
Also, on the show, a series of class action cases involving fees charged to merchants for accepting payment by credit card is discussed.
The class action claims had been based on various arguments including Competition Act provisions, civil conspiracy to injure and unjust enrichment.
Ultimately, after more than a decade of work, a settlement was reached and approved by courts in the various Canadian jurisdictions that were involved.
$131 million is available for distribution to businesses that accepted credit card payments any time between March 23, 2001, and September 2, 2021.
To receive funds from the settlement a business needs to file a claim prior to September 30, 2022.
Claims can be filed online at: https://www.creditcardsettlements.ca
An automated transcript of the show:
Legally Speaking June 2, 2022
Adam Stirling [00:00:00] It’s time to speak with Michael Mulligan from Mulligan Defence Lawyers. Michael, how are we doing?
Michael T. Mulligan [00:00:04] I’m doing great. Always good to be here.
Adam Stirling [00:00:06] The justice system is a machine, and it’s important for all members of the public to understand the specific workings of that machine. So that agree or disagree, we can better understand how it arrives at the certain outcomes at which it does arrive. Take, for example, our first story today. I’m reading consecutive parole eligibility for multiple murders. This one made headlines. It blew it got blown clear across the Internet. I saw a lot of misunderstandings. Help us understand what it was about.
Michael T. Mulligan [00:00:34] Yeah. So, the background of this, of course, starts with what is the penalty for murder? Right, that first thing to understand. And in Canada, if somebody is convicted of murder of any kind, the punishment for that is always life in prison. That’s the first thing, which there’s often just this misunderstanding about. The punishment for murder in Canada is life. And that came as part of the compromise to get rid of the death penalty back in 1967. Right.
Adam Stirling [00:01:05] hmm.
Michael T. Mulligan [00:01:05] Prior to that, we had the death penalty. Canada hung hundreds of people over the years.
Adam Stirling [00:01:09] Wow.
Michael T. Mulligan [00:01:10] In Victoria, we would hang people at the old courthouse down in Bastion Square.
Adam Stirling [00:01:14] Yeah.
Michael T. Mulligan [00:01:15] And so the part of the compromise to get rid of the death penalty was to impose mandatory life in prison for anyone convicted of murder. Interestingly, in Canada, the last statute that got amended to get rid of the death penalty didn’t occur until 1999, when the National Defence Act was amended. Up until that point, at least on the books, there was a if a person is traitorously engaged in cowardice, desertion or unlawful surrender or spying for the enemy. If you convicted of those things, the traitor, the penalty was mandatory death.
Adam Stirling [00:01:53] Wow. Mandatory death.
Michael T. Mulligan [00:01:56] mandatory death? Don’t spy for the enemy. Not going to go well.
Adam Stirling [00:02:00] All right.
Michael T. Mulligan [00:02:01] So that’s when we finally got rid of the last statutory provision in Canada to hang people. And so, what sometimes get talked about, people talked about, sometimes mistakenly, this period of parole ineligibility, which is completely distinct from the fact that you’re sentenced to life in prison. Parole ineligibility is simply the period of time when you can’t even ask for parole. Right. Being eligible for parole simply means, you know, you go kindly with your cup our and ask. It does not mean you will get it. And the principal consideration on parole is safety of the public. And so, if you are dangerous, you’re just not getting it.
Adam Stirling [00:02:43] Yeah.
Michael T. Mulligan [00:02:44] But we’ve got we’ve introduced this concept of you can’t even ask for a period of time and sometimes that wrongly gets completed with that’s how long the sentence is, which is just not so. And so, in Canada, if you’re convicted of second-degree murder, the parole ineligibility period you cannot ask is set between 10 and 25 years.
Adam Stirling [00:03:05] mm-hmm.
Michael T. Mulligan [00:03:05] And for first degree murder, it is 25 years. But what happened a few years ago is that I guess scratching your head about what could be tougher than life in prison and maybe the idea of consecutive life sentences, which some U.S. states have ridiculously opposed. Didn’t sound tough enough. Or maybe sounded ridiculous. The came up with this idea of, you know, first degree murder cases where more than one person was killed, permitting a judge to impose consecutive parole ineligibility. So, if two people are killed, you can’t even ask for 50 years or three people 75 years, or we’ll go up to 100 or whatever it might be. And so, the case that was just decided and was reported on, reasonably widely, was the case involving an awful circumstance in Canada, where a man in Quebec shot and killed six people at a mosque in Quebec a number of years ago. People probably remember that.
Adam Stirling [00:04:08] Yeah.
Michael T. Mulligan [00:04:08] Back in 2017.
Adam Stirling [00:04:09] Yeah.
Michael T. Mulligan [00:04:10] You know, we should bear that in mind, you know? I guess, when we look at the tragedies going on in the United States recently, Canada is not without those rare, happily, tragic events. And so, this man pled guilty to six counts of first-degree murder, as well as various other counts for people that were injured. And the crown sought to apply this reasonably new provision asking for consecutive parole ineligibility, because we can’t give him any more than life. He’s only got one to live.
Adam Stirling [00:04:43] Yeah.
Michael T. Mulligan [00:04:45] And he argued at the time, at trial or the sentencing judge, that the sentence would be cruel and unusual. Right. Having this would have amounted for him, 150 years of parole ineligibility, you can’t ask for 150 years. The trial judge found that that would be contrary to section 12, that’s to say, cruel and unusual.
Adam Stirling [00:05:08] Yes.
Michael T. Mulligan [00:05:08] And the trial judge decided to try to read down or interpret the section to allow him to impose a 40-year parole ineligibility period.
Adam Stirling [00:05:19] huh.
Michael T. Mulligan [00:05:19] So that’s what the trial judge did. And so, then the case went to the Court of Appeal in Quebec. The man appealed the 40-year ineligibility, and the Court of Appeal said, yes, this was unconstitutional, these multiple consecutive ineligibility periods. But the trial judge shouldn’t have kind of read that thing down and imposed 40 years. And so that’s what then went up to the Supreme Court of Canada and the Supreme Court of Canada agreed with the Quebec Court of Appeal in the sense that they found that it was not appropriate for the judge to try to read this section in a way that would allow 40 years rather than 150 years.
Adam Stirling [00:06:02] yeah.
Michael T. Mulligan [00:06:02] To try to make it constitutionally permissible. And the point there that the Supreme Court of Canada made is that that concept of trying to read down or interpret a section in a way that could survive a constitutional challenge might be appropriate, where there is some ambiguity or where parliament might have intended that you’re presuming they want to do something lawful, right, for example. But not appropriate, where clearly the intent was to do what you know, they wanted 150 years. That seems to be what parliament intended. So, they can’t be read down in that way or reinterpreted. And so, then the Supreme Court of Canada had to deal with what the section actually provided for, which would be effectively, in this case, 150 years of not asking for parole. And so, they had to answer the question, is that kind of a sentence, cruel and unusual; contrary to the provisions of Section 12 of the charter? And the Supreme Court of Canada’s unanimous answer to that question was, yes, that is unconstitutional. And the way they approach it is they look, they look, first of all, when there’s a Section 12 analysis of whether it’s cruel and unusual, is the sentence grossly disproportionate? Right. And then there’s the second prong to the analysis, which would be, is a class of punishment, cruel and unusual, which the state or government just can’t ever be permitted to use. And on that basis, the Supreme Court of Canada found that this provision, which would allow for parole ineligibility, extending all beyond the possible lifespan of any human being.
Adam Stirling [00:07:41] mm-hmm.
Michael T. Mulligan [00:07:41] Effectively telling somebody you have no hope of rehabilitation, no prospect of that, and you will die in prison. Right. They found it to be sort of analogous to what you do psychologically to somebody when you put them on death row and say, you know, well, we’re going to hang you in ten years, but, you know, hang out here and think about it.
Adam Stirling [00:07:58] Yeah.
Michael T. Mulligan [00:07:58] When we get around you. And so, they looked at things like, well, what have other sophisticated countries done? And they looked at the number where that had been analyzed. You know, places like Germany and France and Italy and various other places, all of whom had found sentences of life in prison with no hope of parole to be unconstitutional, cruel, and unusual. They looked at an international law, another as another place first or where that had been considered. And they were looking at it from the point of view, not so much about the individual in this case, who is I think they described it as, you know, the concern is not about the particular vile individual, who engaged in that kind of conduct, but they were looking at sort of a higher level of, you know, when as a type of punishment is sort of just inappropriate and the state shouldn’t be allowed to do that to people. Right. And so, the suit had a discussion about, in addition to looking at what other countries had done, sort of some of the core values that we have as a society, including the concept of the possibility, at least, of rehabilitation. And these are the like even where they may be in an individual case of minimal importance. Right. You know, some person who’s engaged in you’ll be described, vile criminals, maybe a really low chance of that’s ever going to happen. But it not be appropriate that the state be allowed to tell somebody, you are going to prison, you will never get out, you are only getting out when you die. Don’t bother with any efforts to reform yourself or anything else because you will stay here until you’re dead. Yeah. And they found that not to be permissible. And so, the decision is not about, you know, what do we think of this individual? Clearly, the act was vile, he pled guilty, there’s no doubt he did it. And he’s sentenced to life in prison.
Adam Stirling [00:09:57] Yes.
Michael T. Mulligan [00:09:57] And there is a category of people who. Realistically, they are just not going to get parole. Right. You look at somebody like Pickton, for example, you’re a serial killer. You are never getting out. And so, you know, another way to look at this and it sort of ties in with the death penalty analysis in some places, it’s not so much about, you know, what do we think about this person who’s engaged in this terrible thing? It’s much more about things like, you know, what are our core values and what is permissible and how do we, you know, what is the state permitted to do to people? And what is so extreme that it is amounting to this concept of cruel and unusual punishment. And so, the Supreme Court of Canada has joined another number of other countries who have come to the same conclusion that even though for a particular person, their realistic chance of ever getting out may be close to zero, we are, it’s not appropriate or permissible to impose sentences where we are telling somebody your chances zero and you will be buried here. And so that’s the analysis that was done. It was a unanimous decision from the Supreme Court of Canada. And so that provision that would allow for consecutive parole ineligibility has been found to be unconstitutional. It can’t just be read down. And so, bear in mind, of course, the sentence is life.
Adam Stirling [00:11:21] Yeah.
Michael T. Mulligan [00:11:21] This person is likely never going anywhere. But it’s more of a comment on, you know, what are our core values and one of the core Canadian values, there is just that prospect of human dignity and the idea that there is some chance that somebody is going to be able to repent and reform themselves and to close that door entirely is not permissible. And so that’s what we got from the Supreme Court of Canada.
Adam Stirling [00:11:47] I’m curious, you said it was section 12 of the charter. That is the prohibition on cruel and unusual treatment, because I saw some talk about using Section 33, the notwithstanding clause. Some folks think that applies to the whole charter. It does. And in section two or Section 7 or 15. But that would include 12, wouldn’t it?
Michael T. Mulligan [00:12:03] Well, I would hope that that would not be even in the cards of consideration.
Adam Stirling [00:12:08] Yeah.
Michael T. Mulligan [00:12:08] Right. You know, it would be like, you know, you’ve had this detailed analysis of what’s being done around the world, clear explanation for why this would be just inhumane, lacking in dignity, concreted core Canadian values. That the idea that somehow we’re going to bypass all of that because we’re really angry or something, where it’s politically expedient, just to my mind, doesn’t pass muster.
Adam Stirling [00:12:34] Yeah.
Michael T. Mulligan [00:12:34] And the critical thing that people need to understand is, again, the sentence is life in prison. Right. For this particular individual or other people engaged in, you know, serial killers and extremely dangerous people. They’re not going anywhere. Right.
Adam Stirling [00:12:50] Yeah.
Michael T. Mulligan [00:12:50] It’s not it’s not a matter of, well, we need to really protect ourselves or the just mistaken impression that somehow this person is going to get out after 25 years. All this means is he may come cup in hand ask the parole. Ask for parole. Good luck. Right. Yeah. You could ask whatever you want to. All that means is the period of time for which you can’t ask. That’s really the way to look at it. And the key principle there in parole was always the safety of the public. And if you’ve got somebody who’s engaged in, you know, killing more than one-person, good luck to you.
Adam Stirling [00:13:24] Yeah.
Michael T. Mulligan [00:13:24] Very, very high probability, that’s just never happening. All the Supreme Court of Canada here is saying is that it is contrary and incompatible with the sort of basic principles of human dignity to tell somebody you may never ask, no matter what you do or no matter what the circumstances. Don’t bother asking. We’re burying you over there. Right?
Michael T. Mulligan [00:13:43] Yeah.
Adam Stirling [00:13:43] No I see it. I see it. That makes a lot of sense. Thank you, Michael.
Michael T. Mulligan [00:13:46] It’s not saying this guy is okay or this is okay. Right. And we need to be concerned about safety. It’s just a comment on, yeah, sort of the core principles of human dignity. And we don’t want to say to somebody, it’s hopeless. Forget it. Don’t ever come cup in hand. That creates other problems, of course. Practical problems, right. If you’re the prison guard or prison administrator, do you really want somebody for whom there is nothing more we can do to this person? That may not be a very good circumstance. So, I think the decision makes sense. It does require some bearing down on if somebody looks at that headline, you think, oh my God, this is a terrible individual. Why would you do anything for this person? That’s not what it’s about. It’s not about countenancing what this person is doing or reducing what is likely to happen to this person. It’s a comment on our core values and how we approach these things, and that’s really how the decision needs to be analyzed.
Adam Stirling [00:14:41] All right. Let’s take our break. Michael Mulligan with Mulligan Defence Lawyers will continue analyzing the latest in current affairs in the legal world right after this.
Adam Stirling [00:14:49] And we’re all listening to Michael Mulligan for Mulligan Defence Lawyers as he helps us better understand the latest news and developments in the legal world. What’s next on the agenda for us today, Michael?
Michael T. Mulligan [00:14:59] So next on the agenda is a settlement of a very substantial series of class action claims that we’re all across Canada and where there were parallel claims in the United States dealing with the interchange fees charged to merchants for accepting credit cards. And the way those work, if people are familiar with them, is when you go and use a credit card at a merchant, the there is an amount of money which is deducted from what’s actually paid to the merchant. It could be one and a half or 2%, whatever it might be, depending on the agreement the merchant has with the company doing the processing.
Adam Stirling [00:15:42] mm-hmm.
Michael T. Mulligan [00:15:42] And so there was a series of class action claims that were started all across the country that have been percolating along now for more than a decade, alleging breaches of the Competition Act, civil conspiracy to injure unjust, unjust enrichment and various other things, suing a whole host of parties, including all the major banks in Canada. Because the way it works is you get these networks like the Visa network and MasterCard network, but then you’ve got banks who will both issue credit cards and will do the transactions for the merchant who’s accepting their credit card. And so, there’s been a settlement of these class actions. And it was clearly, a very complicated case, that went on for a really long period of time. But there’s now been a settlement and there’s been approval of the settlement, and there’s been approval of the means of distributing the funds. And it’s a substantial amount of money. The settlement is in the range of $131 million in Canada. And it’s important that people know about this because there is a deadline to apply for it and you must apply for it. The deadline to apply is September 30th of this year. Okay.
Adam Stirling [00:17:04] Hmm.
Michael T. Mulligan [00:17:05] And the persons or businesses that would be eligible would be any business which has accepted payments by credit card between March 23rd of 2001 and September 2nd of 2021. So, a 20-year period of time. And the way the settlement works is for businesses that are small, businesses that have, that have average revenue of less than $1,000,000, they can apply without providing any documentation other than an attestation that they accepted credit cards for that period of time. And you can indicate which year somebody did, and they will be paid out $30 per year. So, for a small business that’s been around and operating for that period of time, accepting credit cards, it amounts to $600. But you have to fill out the application form to get it for businesses that are medium sized, up to $5 million a year in average revenue, then you have to provide a little bit of documentation to show that you had a merchant agreement during that period of time, and they would be paid out $250 per year. So that’s $5,000 of a business like a restaurant or something operated for that period of time. And then large businesses, if they had more than that in revenue, over $20 million a year, they would be required to provide detailed documentation about how much they paid in these interchange fees, and then the amount they would receive would be calculated based on that. But the idea is to simplify the process for small businesses. So, you don’t expect somebody to try to find your credit card statement from March of 2001. Yes, good luck with that. So, the critical information is that people need to know that if you’re potentially eligible for this, if you have a small business, you should go to the website to fill out your application before September 30th so that you can participate in this. The website is a www.creditcardsettlements (plural).ca – www.creditcardsettlements.ca. And you can go there, you can fill out the form. It takes only a few minutes. And the if you had the business and you accepted credit cards during that period of time, you’ll likely wind up with a check in the mail. But don’t miss the deadline. And I think this is worth talking about and people knowing about it, because, of course, so many things these days, people are suspicious about there’s so many fraudulent things or things that seem too good to be true or reasonable to be a part of this agreement, posting ads on Facebook and in magazines and newspapers and having trade associations and so on to notify people. But naturally, people are suspicious about are things real? That sounds too good to be true, but I can tell you this is legitimate. There’s been a large settlement. And if you were somebody who accepted credit cards during that period of time, make sure you go and fill that out and you’ll be able to participate in the settlement.
Adam Stirling [00:20:20] All right. We’ve got just under 2 minutes remaining.
Michael T. Mulligan [00:20:24] Well, maybe just briefly, there is a case from the Court of Appeal that’s an example of how prolific offenders are, in fact, dealt with in BC. And they it demonstrates the tension between trying to reduce the number of indigenous people in prison and dealing with people in that category. And it’s a man who had is a prolific offender who pled guilty to being in possession of stolen, a stolen van and contents, and driving while prohibited. But he had a bad record of 117 prior convictions.
Adam Stirling [00:20:55] Wow.
Michael T. Mulligan [00:20:55] 53 years of age.
Adam Stirling [00:20:56] Wow.
Michael T. Mulligan [00:20:57] Metis man. So, he was sentenced to two years in prison, and he appealed that sentence. And his appeal to the B.C. Court of Appeal was just denied. And so, it is an example of the fact that where you have somebody with that kind of a record, even if what they’ve done is, you know, possessing a stolen van, van tools and a water meter. Right. And driving when he’s not supposed to. The system does respond with jail sentences of that kind.
Adam Stirling [00:21:28] Good.
Michael T. Mulligan [00:21:28] The flip side of it, of course, is that, you know, we see all of these statistics about the overrepresentation of indigenous people in prison.
Adam Stirling [00:21:36] Yeah.
Michael T. Mulligan [00:21:37] And so here this man will be in prison for a period of two years. We won’t need to worry about any stolen vans, but we’ll have to see what what we get back two years from now. He has apparently congestive heart failure and a drug addiction. So, it’ll be interesting to see how it plays out. But I thought people should know about that because it’s an example of what actually happens. And that, as I said, that tension between, trying not to lock up an excessive number of indigenous people.
Adam Stirling [00:22:07] Yeah.
Michael T. Mulligan [00:22:07] Well, the same time responding to what do you do with somebody who at 53 just keeps engaging in property crime and the response is a two-year prison sentence.
Adam Stirling [00:22:16] Michael, thank you as always, for helping us better understand the intricacies of these issues. It’s always appreciate.
Michael T. Mulligan [00:22:22] Thank you so much. Stay safe.
Adam Stirling [00:22:23] All right. Have a great week. We’ll talk to you next week.
Automatically Transcribed on June 3, 2022 – MULLIGAN DEFENCE LAWYERS