This week on Legally Speaking with Michael Mulligan:
In 1976, when Canada eliminated the death penalty for murder, the compromise was a mandatory life sentence for people convicted of murder.
One of the circumstances where mandatory life sentences can result in an excessively long period of time in jail is for people who are subject to long periods of domestic abuse and eventually kill their partner.
Recently, in Alberta, a woman who was seriously abused by her husband for almost thirty years eventually shot him while he was sleeping. The abuse included ordering the wife around with a gun and threatening to kill her if she left the marriage.
Crown Counsel charged the woman with first-degree murder but eventually agreed to accept a guilty plea to manslaughter on the condition that she would agree to an 18-year jail sentence.
Because a conviction for first-degree murder requires a life sentence, with no possibility of parole for 25 years, the woman agreed.
In some cases, battered women syndrome has been recognized as a basis for self-defence, even where the abusive partner wasn’t a threat at the time of the killing. How this would be viewed by a jury on the facts of a particular case would always be uncertain.
When there is a guilty plea and agreement between the lawyers involved concerning the sentence to be imposed, a judge is required to impose the sentence unless doing so would bring the administration of justice into disrepute. This is a very high standard and is intended to encourage cases to be resolved by negotiations.
Following the sentencing, there was public backlash on the basis that the sentence was excessive, given what precipitated the killing. An online petition to reduce the sentence collected almost 24,000 signatures.
On appeal, a new lawyer acting for the woman is arguing that the petition is evidence that the sentence does bring the administration of justice into disrepute and should be reduced.
There is no mandatory minimum sentence for manslaughter.
Also on the show, following the resignation of Julie Payette as Governor General, the Chief Justice of the Supreme Court of Canada took over as Administrator, fulfilling the Governor General’s responsibilities.
Authority for the Chief Justice to take over these responsibilities is derived from the Letters Patent, 1947, issued by King George VI.
In this capacity, the Chief Justice is giving Royal Assent to bills, and would also be responsible for things such as dissolving parliament for a general election, choosing a Prime Minister to form a government, and reading the Speech from the Throne.
This second job could become awkward if the Chief Justice was later hearing a challenge to the legislation, he had delivered a Speech from the Throne about and then provided royal assent for.
Finally, a prosecution in Hong Kong for violating China’s national security law has demonstrated how the Chinese Communist Party has dissolved a justice system that was previously similar to the one we have in Canada.
The case involves a man charged with sedition and terrorism offences for riding a motorcycle while carrying a flag with a pro-democracy slogan on it.
The security law allows the government to pick which judges can hear the case, deny the man a jury trial, hold him in jail until his trial, and subject him to a maximum sentence of life in prison if convicted.
Legally Speaking June 24, 2021
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers morning, Michael, how are you doing?
Michael T. Mulligan [00:00:05] Good morning. Always good to be here. The wheels of justice just never stopped turning.
Adam Stirling [00:00:10] Indeed. So, what’s new this week?
Michael T. Mulligan [00:00:13] Well, the first case I wanted to talk about is a very interesting appeal from a sentence for manslaughter for a woman in Alberta. And the background of the case involves a woman who’s a grandmother of eight who survived three decades of abuse at the hands of her husband. And it was common ground that the abuse that she suffered was severe, being threatened with a gun on occasion, being threatened that she would be killed if she tried to leave her husband. All manner of terrible abuse that went on for many years. And eventually, after having suffered through that for nearly three decades, she shot and killed her husband while he was asleep. And she and one of her then young adult children took his body and disposed of it and reported him missing. After about six years, what happened, came out and she was charged with first degree murder. And in Canada, of course, if somebody is convicted of first-degree murder, the penalty is necessarily life in prison with no prospect of parole for 25 years. And that minimum penalty of life in prison and no parole eligibility for that period of time came in in 1976 when we did away with the death penalty. And it was sort of a quid pro quo. We get rid of the death penalty, but we’ll insert this mandatory minimum penalty. And of course, when you do that, you don’t necessarily have in mind the severely abused woman who eventually kills somebody, right?
Adam Stirling [00:02:04] Yes.
Michael T. Mulligan [00:02:05] And so what happened is the plot thickens.
Adam Stirling [00:02:09] mhmm.
Michael T. Mulligan [00:02:09] There can be a defence of referring to it as battered woman syndrome and how they can attach to the concept of self-defence.
Adam Stirling [00:02:17] Yes.
Michael T. Mulligan [00:02:18] But it’s far from certain whether that would carry the day in a jury trial, for example. Right.
Adam Stirling [00:02:26] mhmm.
Michael T. Mulligan [00:02:26] And so in this case from Alberta, her lawyer at the time was able to persuade Crown Counsel to accept a guilty plea to the offence of manslaughter rather than murder. But. The condition of the guilty plea was that both the crown and the defence would agree to ask the judge to impose an 18-year prison sentence on this woman. And so that is what occurred. And as we’ve talked about previously, when there is a joint submission for a judge to consider, the judge is required to impose what’s being asked for by both lawyers, unless the judge concludes that doing so would bring the administration of justice into disrepute, a very high threshold. And the reason that threshold is so high, to depart from a joint submission, is that otherwise cases may well just not resolve. Right.
Adam Stirling [00:03:22] yes.
Michael T. Mulligan [00:03:22] If you could have no certainty about what had been agreed to. Now, and then the other reason for it, of course, is that well not of course, but the other reason for it is that judges doing sentencings may not be aware of all of the things that might have gone into the agreement. They would be presented with some of the information, but they may not know everything. And here the Crown presented. This is a near murder, right?
Adam Stirling [00:03:47] Yes.
Michael T. Mulligan [00:03:47] And also, I think, made reference to the fact you tried to cover up what occurred and succeeded in that for a number of years. Now, what’s happened is that the public, of course, found out about what happened here. There editorials written in the paper in Alberta. And there was some quite strong public reaction against the sentence that was imposed on the grandmother of eight people thinking this was excessive. It shouldn’t have happened. She had been abused. This is much too much. And that’s produced an online petition. Now the some almost 24,000 people have signed being opposed to the sentence that she received and that is now resulted in an appeal to the Alberta Court of Appeal, which was just heard. And one of the interesting submissions that the lawyer, a different lawyer from the one that was helping this woman at trial, when she was charged with first degree murder and who agreed to the manslaughter plea. One of the arguments that her lawyer is making is the argument that to the Court of Appeal, look, the test for whether a joint submission should be agreed to is whether it would bring the administration of justice into disrepute. And if you play that out, it’s actually in the mind of a reasonable person fully informed of all of the circumstances of the case, not somebody who’s half informed or you know, on the margins. And so, the lawyer’s argument is, well, look, unlike in many cases, you’ve got, you Court of Appeal, have some direct evidence about how this sentence has impacted the view of the justice system in Alberta, because look, here’s a petition of some 24,000 people that say that the 18-year prison sentence handed to this woman was really excessive. And so, it’s a very interesting fact pattern for the Court of Appeal to consider because they are dealing with, first of all, all of the considerations that might go into a case where the crown agrees to accept a plea to a lesser offence, but in exchange for an agreement, for a substantial sentence. And how should that be reconciled with the general principles that would apply to considerations of whether to impose a sentence being asked for where it’s a joint submission? And one of the other things which has been called for is the idea that particularly in cases like this one, where you’ve got an abused woman who’s charged with murder, is that it is perhaps too coercive to tell somebody, look, we’re charging you with first degree murder. If you’re convicted, you must receive a life sentence. You may have a defence to that. For example, self-defence in the context of a battered woman syndrome might apply here.
Adam Stirling [00:06:48] hmm.
Michael T. Mulligan [00:06:48] But if you don’t succeed in that, you’re going to prison for life. And so that can create a perhaps overwhelming pressure on somebody to agree to plead guilty to something like manslaughter, even if the result would be a very long sentence. Well, I just can’t risk life in prison, you know, I guess I’ll have to take that. And so one of the things which has been suggested, at least publicly in the context of this case is that particularly, in fact patterns like this, if the crown is prepared to accept the guilty plea to manslaughter, they should not be charging the person with murder and then using that as leverage to get the person to agree to plead guilty to something like manslaughter if the Crown thinks that manslaughter is the appropriate charge, in a case like this. They should simply charge the person with manslaughter and then if the person wishes to have a trial so that a jury could decide, for example, whether battered woman syndrome was applicable in the circumstances of her case, they could make that decision. And so that the accused person wouldn’t feel that if it is not, the judge would have no alternative but to send them to prison for life. And so, the case raises all of these very interesting issues in terms of, you know, how do we deal with people who are seriously abused and then respond in that fashion? Should they be treated in some different way than we would treat somebody who committed a murder for some other reason? Or should there be some consideration given to whether there should be greater discretion in cases where somebody was convicted of murder even?
Adam Stirling [00:08:44] Yes.
Michael T. Mulligan [00:08:45] How should we approach it? Because it would appear that at least a fair chunk of the public view of this would be it’s just not fair at the end of the day, to have somebody who survives three decades of abuse and then acts in this fashion to be sentenced to either life in prison or indeed 18 years in prison, something may well be appropriate, but is this appropriate? And so, it will be interesting to watch both how the Alberta Court of Appeal deals with it in terms of the legal issues and then whether it has any effect on how future prosecutions in cases like this proceed. Do you charge the person with first degree murder and then say, look, if you’ll agree to manslaughter, you must agree to a substantial sentence, or should some other approach be taken? Because clearly, you know, circumstances like this, in my view at least, ought to be taken into account when deciding what is appropriate. And this case and cases like it or perhaps in a similar category to the other one of the other well-known Canadian cases of Latimer, that farmer who was convicted of.
Adam Stirling [00:09:56] Robert Latimer killing.
Michael T. Mulligan [00:09:58] Killing his severely disabled daughter, who was in constant and unremitting pain.
Adam Stirling [00:10:04] Yes.
Michael T. Mulligan [00:10:05] You know, should the life sentence for murder, is that the appropriate sentence for the abused woman or for the person who’s engaged in a sort of a mercy killing if described in that way? Right. Does that person need to be in prison for the rest of their life or should there be some flexibility in terms of determining what the appropriate sentence would be? And so it’ll be very interesting to see what the Court of Appeal does with this, because indeed, as lawyers arguing, there is some actual evidence before the Court of Appeal of what the public thinks of this sentence and whether indeed this would bring the administration of justice into disrepute and whether in those circumstances, a judge deciding the sentence should have interfered with it or whether they should have taken the usual approach, which would be to impose the sentence that was being asked for
Adam Stirling [00:10:56] Michael Mulligan with Mulligan Defence Lawyers will take a quick break, Legally Speaking, continues right after this.
Adam Stirling [00:11:02] Back on the air here at CFAX 1070, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers. Michael, thank you for walking us through that. A very complicated area of law and indeed a very complicated area of just human life, of people having to exist in situations like that being in awful scenarios. What’s next on the agenda?
Michael T. Mulligan [00:11:20] Well, next on the agenda is what happened after Julia, Julie Payette, the Governor General, resigned.
Adam Stirling [00:11:27] Yes.
Michael T. Mulligan [00:11:28] Who’s in charge.
Adam Stirling [00:11:29] Yes.
Michael T. Mulligan [00:11:30] And she, of course, resigned on January 21st of this year. And we don’t have a new governor general. So, who’s running the show? And the answer to that is the Chief Justice of the Supreme Court of Canada. Justice Wagner is now and has since two days after the resignation, been filling in on behalf of the Queen as the administrator. And the authority to that is interesting. It comes from the letters patent from King George VI 1947, it said. So, what happens when the Governor General is unable to fulfil the role or there isn’t one? Or indeed, if the Governor General out of the country for more than 30 days, there’s been a procedure as to who takes over. We don’t, of course, in a parliamentary democracy, have some line of succession for the Prime Minister. Right. If the Prime Minister resigned, there would be a determination as to who was going to take over that role. But it isn’t set out sort of as a line of succession like there would be in the United States for example. The President and Vice President and so on down the line, but we do have that for the queen’s representative in Canada. And so, with no Governor-General, it then falls to the Chief Justice of the Supreme Court of Canada. If the chief justice of the Supreme Court of Canada can’t do it, you would then sort of go down the line to a senior judge of the Supreme Court of Canada. And so, we always have somebody in place. Now in that role, and I should say he’s been doing both jobs since January, he’d be fulfilling a whole bunch of tasks. He’s signed since then, just short of 600 orders from cabinet. He’s giving royal assent to legislation. I think a dozen pieces of legislation he’s given royal assent to. And of course, with a potential election looming, he may wind up with some other interesting responsibilities, including choosing the Prime Minister. What happens if we wind up with a minority parliament again? So, you can have the Chief Justice of the Supreme Court of Canada determining who’s going to get a chance to try to form government.
Adam Stirling [00:13:48] Well, at least you would be familiar with the law. It’s not like you’d have to receive much legal advice for if he did, he’d certainly be able to interpret it. One would think.
Michael T. Mulligan [00:13:56] That’s true, although think about this. He would also then be doing things like reading a speech from the throne, potentially then giving royal assent to bills that were passed.
Adam Stirling [00:14:05] hmm.
Michael T. Mulligan [00:14:05] And now let’s imagine one of those bills winds up being challenged, perhaps on constitutional grounds.
Adam Stirling [00:14:11] Oh.
Michael T. Mulligan [00:14:11] Now he’s going to kind of walk down the street guy that gave the speech from the throne saying we need to, I don’t know, allow everyone to be arrested without the right to counsel. He just read that out and then give royal assent to the bill providing for that. And now he’s going to walk down the street and decide whether that, in fact, is constitutional or not.
Adam Stirling [00:14:33] hmm.
Michael T. Mulligan [00:14:33] And so I suppose you’d be stretching it a bit to make that argument. But it certainly could lead to an awkward circumstance. If you’ve got the chief justice reading out a speech from the throne, calling for something, then giving assent to the legislation and then potentially deciding whether the legislation is constitutional or not or interpreting what it means. And so, we have an interesting state of affairs and a busy Chief Justice of the Supreme Court of Canada who’s got a lot going on anyways. And so, and we may, of course, have an interesting time if there is indeed an election called. So perhaps it would be time to give some consideration to getting somebody in to take over as governor general. And hopefully we can find somebody who can treat people nicely. It doesn’t seem like too difficult or too high of a bar, but that’s the circumstance we’re in. And I should also add there’s a similar procedure if a Lieutenant Governor can’t act, the Governor General or now, in fact, the administrator has the authority to appoint somebody as a provincial administrator. And so, if, for example, the Lieutenant Governor in B.C. couldn’t carry on for some reason right now, Justice Wagner, Chief Justice Wagner could appoint an administrator in British Columbia to fulfil the roles there. One thing he might consider doing, if he hasn’t already, is that the letters patent also permits him the administrator to appoint a deputy to help. And so maybe that would avoid some of the potential awkwardness of doing things like reading a speech from the throne. You could appoint somebody as a deputy who wouldn’t then be the chief justice, potentially hearing a case involving things spoken about in the speech from the throne. And so there could be some workarounds. But I guess the thing to know for everyone is we’ve got an empty position and we’ve got a very busy Chief Justice. And perhaps it would be a wise idea to get that role filled before he’s left with making some potentially significant decisions.
Adam Stirling [00:16:47] And while Canada’s justice system is not perfect, because no system is perfect, Michael. It may also be of benefit from time to time to cast our gaze elsewhere in the world and compare our system to other systems in terms of fairness.
Michael T. Mulligan [00:17:02] That’s for sure. All right. I’ve been watching with interest what’s been going on in Hong Kong.
Adam Stirling [00:17:09] Yes.
Michael T. Mulligan [00:17:10] Since the Communist Party of trying to pass the legislation. They are dealing with national security, the sort of vaguely worded law in as they sort of subsume Hong Kong. Right.
Adam Stirling [00:17:27] Yes.
Michael T. Mulligan [00:17:27] And the reason that’s interesting to watch from the perspective of, you know, somebody else from a Commonwealth country where Hong Kong had many of the similar elements to our justice system here. Right, it did have previously an independent judiciary. Right, they had things like jury trials. They had things which you would very much recognize as a Canadian. I’m looking at how the justice system there previously functioned. And so it is, I must say, very disappointing to watch how that is being simply dissolved as it’s been subsumed by the Communist Party in China. And we’re seeing that now in the form of. One of the first trials that’s going to occur under that Chinese national security law and some of the things, the trial that’s about to start involves a man who was riding a motorcycle with a flag calling for Hong Kong’s liberation, on the flag, basically.
Adam Stirling [00:18:37] mhmm. Yes
Michael T. Mulligan [00:18:37] So, yeah, I think driving the motorcycle poorly, but he’s charged with under this national security law as a result of having the flag. And that means a few things. And they would include things like under that law, the government there gets to pick which judges are allowed to hear the case. That’s awfully disturbing.
Adam Stirling [00:19:01] Yeah, that’s that’s very, very disturbing.
Michael T. Mulligan [00:19:05] I’m not sure that’s the mark of distinction one would want is a judge being handpicked by the government to hear the case?
Adam Stirling [00:19:11] I was going to say, even if one finds oneself to be fair and impartial, if you’re always the one that gets picked on, people you know are political adversaries of the government, one might re-examine one’s own facilities for finding fair judgements.
Michael T. Mulligan [00:19:24] So that’s one thing they did. The other thing they’ve done under this legislation is that you are denied bail. You stay in jail, the motorcycle riders, been in jail now for about a year. Unless you can establish to the satisfaction of one of these hand-picked government judges that you will not endanger national security by, for example, displaying a pro-democracy flag.
Adam Stirling [00:19:47] hmm.
Michael T. Mulligan [00:19:47] And so you’ll be unlike in Canada, right. You’ve got a right to not be denied bail without just cause.
Adam Stirling [00:19:55] yes.
Michael T. Mulligan [00:19:55] That’s something that’s been taken away. Another thing which they’ve done is they’ve allowed the prosecutor to determine that the man cannot have a trial by jury. The reason for that stated reason was it was to protect the personal safety of the jurors and their relatives and to safeguard the administration of justice. On the argument, I guess that he was very dangerous with the flag or that he drove his bike in an unsafe fashion. But prosecutor there can just tell you no jury trial for you.
Adam Stirling [00:20:28] wow.
Michael T. Mulligan [00:20:28] And so he will have a trial with the hand-picked government judges. And then the other thing they’ve done is that for these offences, he’s charged him under this national security law with sedition and terrorism for riding with the flag on his motorcycle. And if he is convicted of that, he will be subject to potentially life in prison and a sentence determined by the hand-picked government judges. And so, I suppose with all of the challenges we have in this country, right. And it’s a complex place and time in which we live. One of the things I think we can be duly proud of here, if you’re looking for a positive thing to be considering on Canada Day, is when you look at the contrast to how justice systems in the rest of the world operate in comparison to what we enjoy here in Canada, it just could be it could not be more stark. And so, we, I think, with all of the challenges we have, which you’ve been talking about.
Adam Stirling [00:21:37] Yes.
Michael T. Mulligan [00:21:38] This is one of the things which is the bedrock of our country. And we should be very proud to have the system of justice that we do in Canada. It is in the world scheme of things superb and even in places which previously have enjoyed a system not too far off from what we’ve got here. You can see in Hong Kong just how quickly that can all be gone. And it is really sad to watch what’s happened there. And I must say, if you were somebody in Taiwan having a look at what’s been going on in Hong Kong.
Adam Stirling [00:22:15] Yeah.
Michael T. Mulligan [00:22:15] You would have some real cause to be concerned that because it’s pretty clear how the Communist Party in China is prepared to conduct itself in order to preserve its, you know, national security. So be careful with your flags if you’re in Hong Kong.
Adam Stirling [00:22:31] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Always enjoy these chats, Legally Speaking, every Thursday on CFAX. Thanks so much for your time until next week.
Michael T. Mulligan [00:22:40] Thanks so much. Enjoy the sunny weather. Always, always a pleasure.
Automatically Transcribed on June 24, 2021 – MULLIGAN DEFENCE LAWYERS