$20,000 award for an unlawful arrest for not holding a handrail, what can breach your ICBC coverage, and Law Society rules for lawyers making public statements
Police officers in Montreal believed that a warning picture on an escalator, suggesting that people hold the handrail, made this a legal requirement. The police officers ordered a woman to hold onto the handrail and, when she refused, they arrested her, placed her in handcuffs, searched her purse, and issued her a ticket for not holding onto the handrail.
After being acquitted of the non-existent offence of failing to hold onto the handrail, the woman sued the police officers.
The woman was unsuccessful both at trial and on appeal to the Quebec Court of Appeal. Both of these courts held that the woman was the author of her own misfortunate and that she should have just obeyed the police officers. The Supreme Court of Canada, however, disagreed and awarded the woman $20,000 plus court costs, as a result of her unlawful arrest.
The Supreme Court of Canada concluded that people should not have to put up with being unlawfully arrested, and such actions should not be trivialized.
Also discussed are various ways people can breach the terms of their ICBC insurance coverage. The Insurance (Vehicle) Act and corresponding regulations set out the terms of ICBC insurance coverage, much like an insurance contract would in the case of private insurance.
Part 5 of the Insurance (Vehicle) Act regulations set out numerous ways in which you can breach the terms of your ICBC insurance. If you are in breach you effectively have no insurance and can be personally responsible for paying for any loss or damage you cause.
Some of the ways you can breach your ICBC insurance coverage are relatively clear: a conviction for a Criminal Code driving offence, or driving while prohibited, for example.
Other ways you can end up in breach include more ambiguous and include activates such as operating a vehicle “for an illicit or prohibited trade or transportation” or “if the insured is not authorized and qualified by law to operate the vehicle”. These may be relevant in the context of ride-sharing regulations.
Finally, a Law Society citation for a lawyer who conducted a press conference is discussed. The Law Society rules respecting the need to keep client information confidential, and circumstances in which a lawyer is permitted to provide information to the media are discussed.
Legally Speaking is live on CFAX 1070 every Thursday at 10:30
Adam Stirling [00:00:00] Legally speaking, on CFAX 1070, joined by Michael Mulligan from Mulligan Defence Lawyers. Michael, good morning. Pleasure, as always.
Michael T. Mulligan [00:00:06] It’s great to be here.
Adam Stirling [00:00:07] Some very interesting stories on our docket for this week, including a $20,000 reward for a woman who was arrested illegally for not holding onto an escalator handrail. Am I reading that right?
Michael T. Mulligan [00:00:20] You’re reading that right. So, this poor woman back in 2009 was trying to take a subway in Montreal and she was taking an escalator down, a sort of picture of the Donald Trump presidential campaign announcement. So, she’s going down the escalator in the Montreal subway and a police officer, Constable Camacho, yells at her to hold on to the handrail. And his motivation for this, it would appear, is that there is a sign which, interestingly, the Supreme Court of Canada, I guess we’re now in the age of multimedia, they’ve actually included a copy of the sign at the end of their three reasons for judgment. And it’s this sort of helpful… attention in French helpful attention, signs showing a person holding the handrail and holding the hand of a child. And so, the officer commands that she hold onto the handrail. She ignores him. He yells at her again to hold onto the handrail. And then she gets to the bottom of the escalator and the police officer comes over to her and tells her that she is under arrest. He takes her into a holding room, puts handcuffs on her behind her back.
Adam Stirling [00:01:33] Wow.
Michael T. Mulligan [00:01:33] At one point, if you read the French translation, he then said he wanted to search her purse as she did the officers demanding identification. The woman who’s saying things to the effect of, you can’t arrest me, and I don’t have to do that. And the officer at one point stepped on her foot, took her bag from her, rummaged through her bag to find identification, and then issued her a ticket for not holding the handrail. And here’s the thing; there’s no law requiring you, not surprisingly, to hold the handrail. It’s helpful, pictorial suggestion of a threat of a safety tip.
Adam Stirling [00:02:09] How does one issue a citation for an offence that is not an offence?
Michael T. Mulligan [00:02:12] Well, he wrote out a ticket alleging that she had failed to hold the handrail and gave it to her and off to court the thing went. And one of the issues that arose, because there was this ticket, and then a suggestion or an allegation that she was obstructing the police officer by not holding on to this handrail she was directed to and not providing her identification. Now, one of the legal issues that arose in the predecessor to this case, this is one dealing with her civil claim against the police officer in the city.
Adam Stirling [00:02:44] Yes.
Michael T. Mulligan [00:02:45] Was the issue of whether the police have the authority to arrest somebody for a non-existent offence, because the language in the criminal code speaks about a police officer having reasonable grounds to believe that somebody has committed an offence. That’s what’s required to arrest somebody.
Adam Stirling [00:03:02] Yes.
Michael T. Mulligan [00:03:03] And it’s well accepted that as long as their grounds are reasonable, they could be wrong. Like, for example, if somebody says to the police officer, that’s the man that robbed the bank, there he goes over there. The police officer could run over and arrest the person.
Adam Stirling [00:03:16] Wow don’t want them to get away.
Michael T. Mulligan [00:03:17] Sorry, I you got the wrong guy. The other guy went around the corner. The police officer is not liable for anything. But what about the circumstance where the reasonable gr… Mistake and reasonable grounds are with respect to whether this is an offence at all? And ultimately, equally, you know, you can’t be completely mistaken about whether it’s an offence or not. And with respect to Constable Camacho, the evidence came out that the police training in Montreal there included some training, apparently that disobeying a sign would constitute an offence. Training was just wrong. The Supreme Court of Canada pointed out that some of these signs were things for which there was an actual legal requirement to do them, probably things like, you know, pay your fee to get on the…
Adam Stirling [00:04:07] Yep.
Michael T. Mulligan [00:04:08] …Subway, this sort of thing. Amusingly, the Supreme Court of Canada talked about the fact that there were some helpful hints that a reasonable person might have used to figure out whether this was actually an offence, including, this I thought was amusing, some of the signs which actually were legal requirements, like things like paying your fee to get on the subway. That included a picture of a gavel although judges in Canada don’t use gavels, but nonetheless, it would appear that the training of the police officer or police officers there was really totally inadequate because Constable Camacho thought that all of these pictorial signs created offences. And so, he was busily enforcing them and arresting people and ticketing people for doing it.
Adam Stirling [00:04:49] I find it curious that a province that defends its own culture from unreasonable intrusions from Americans or even Anglophone Canada, as closely as a culture in Quebec does, would use a gavel as a symbol for what is a law when, in fact, Canadian justice is not used gavels.
Michael T. Mulligan [00:05:05] Yes, that was not very well thought out. But nonetheless, the Supreme Court of Canada thought that might have been a helpful hint to the police officer that some of the other helpful suggestions posted around the subway station didn’t make them legal requirements. So, the case, which got to see decided by the Supreme Court of Canada just last week was the civil claim. This woman who was wrongfully arrested, after eventually being acquitted of the bylaw infractions and the allegation that she was obstructing the police officer and trying to enforce the nonexistent law, sued. And for the first two levels of court, she was unsuccessful. The Trial Judge and the Quebec Court of Appeal refused her claim, saying that, look, she was the author of her own misfortune. She should have just followed the orders of this poorly trained police officer and turned over I.D. and stopped and allowed the search of her bag and so forth. But the Supreme Court of Canada roundly disagreed with that conclusion. And the case, I think, is an important one going forward because it has some important language in it about what should reasonably be expected and how we should deal with things like this. And the Supreme Court of Canada says that, look, in a free and democratic society, no one should accept or even expect to be subject to unjustified state intrusion. Interference with freedom of movement, just like an invasion of privacy, must not be trivialized. The Supreme Court of Canada awarded $20,000 in damages to this woman for her wrongful unlawful arrest, as well as court costs all the way through the proceeding, the trial to the Court of Appeal and all the way after the Supreme Court of Canada, and I expect that’s going to amount to much more than $20,000.
Adam Stirling [00:06:56] Indeed.
Michael T. Mulligan [00:06:56] The takeaway here is I think those important messages from the court and they talk about things like they see this: an unlawful arrest, even for a short time, cannot be considered one of the ordinary annoyances, anxieties or fears of people living in society must accept. You just don’t need to put up with that. And they also make the point that a well-informed person who’s being ordered to do things by the police can doesn’t have to simply accept all of those things and have their bag gone through and foot stood on and be handcuffed in all of this. You need not just put up with all of that. You’re permitted not to follow unlawful orders by the police.
Adam Stirling [00:07:39] Now, as an ordinary person who’s not a lawyer and maybe unsure of what is and is not a lawful order, I’d be very hesitant to refuse to follow an order. What happens if I’m wrong?
Michael T. Mulligan [00:07:51] Well, you’re going to have your foot stood on. You can be put in handcuffs behind your back. You may be, all kinds of things must happen, might happen to you, which is what happened to this woman. I mean, in the moment, if you remember that the police have guns and nightsticks and handcuffs of pepper spray and tasers and all of this. And, you know, eventually this might be sorted out a decade later and you might wind up with a $20,000 award in court after much effort, but you better be sure and well informed that, in fact, this isn’t one of the signs which had the little gavel at the bottom of it and..
Adam Stirling [00:08:25] still can’t believe they did that…
Michael T. Mulligan [00:08:26] Actually related to an offence.
Adam Stirling [00:08:26] I can’t believe they did that…
Michael T. Mulligan [00:08:27] So they did the probably the practical takeaway, I suspect, is going to be some better training for police. And also I expect that wherever there are cases in the future of things like, you know, unlawful arrests or, you know, arrests for things that aren’t offences and so on, I expect this case is going to be pointed to when people bring those matters to court saying, look, don’t trivialize this, you don’t have to put up with being unlawfully arrested and you’re going to get some damages that are simply trivial with the hope being that we don’t have to put up with being, no, it’s not an ordinary annoyance that you need to put up with getting arrested on your way down the subway escalator.
Adam Stirling [00:09:11] I was monitoring an appearance that you made on the CFAX Morning Show earlier this week with Al Ferraby talking about a case and specifically insurance coverage for ICBC. I think many people might be under the mistaken impression that regardless of their conduct, they are still insured while behind the wheel if they are holders of a policy. Not so.
Michael T. Mulligan [00:09:30] Not so. And I think this is something which is very important for people to know just in their day to day dealings and their behaviour. But it also, I think, may help explain the case that we were talking about earlier this week involving the tragic accident with the young girl who was hit in the crosswalk, seriously injured. And the one of the issues or one of the implications of that case, which may explain why the matter is for trial, and I think something is just important people know about; is the concept of a person being in breach of their insurance coverage. The way it works is that in BC, because we have a government monopoly insurance company, the conditions of your insurance are actually set out in a motor vehicle insurance act and then regulations. It’s sort of the equivalent of, you know, the policy for your house insurance, right. If you get your house insurance policy. You have this big, thick thing that’s 40 pages long. If you flip through it, it’s various, you know, efforts by the insurance company to limit their liability, few of those 40 pages are for your benefit. And so, we have the equivalent thing for ICBC insurance in that Insurance Motor Vehicles Act and the associated regulations. In the regulations under section 55 of those regulations, that’s entitled Breach of Conditions. And what that is, is it goes on for several pages setting out in what circumstances your insurance coverage that you paid for is no longer valid. Essentially, if you do the things listed here or you are convicted of various things that are listed here, you don’t have insurance anymore. You will be personally responsible for any loss suffered. It may be that ICBC pays out the other party and then comes after you to recover all of that. So, you may be on the hook for the rest of your life, if you breach the terms of your insurance policy. The various things that can lead to a breach of your insurance policy include things like, involving yourself in a race or a speed test. So, let’s say two people at a light accelerate off somebody hit somebody or goes off the road. You’re not covered. You’re also in breach if you were attempting to evade the police. That’s probably not a great surprise. But if you try to evade the police, you may also be in breach. By the way, there were also some recent changes to the British Columbia civil forfeiture legislation, which are contemplated to allow them to forfeit vehicles of people that do that. Like if you don’t stop for the police, in addition to having no insurance coverage, you may also find that your car is being forfeited to the province. So, bear that in mind, don’t flee the police. Other things that’ll put you in breach; if you’re involved in an illicit or prohibited trade or transportation, there is an interesting one.
Adam Stirling [00:12:37] No that is interesting.
Michael T. Mulligan [00:12:38] You might want to think very carefully about that in the context of things like ride sharing, insurance requirements for that, licensing requirements, you better think very carefully about it. Another one if an insurer is not authorized or qualified by law to operate the vehicle. Think very carefully about that in that context as well.
Adam Stirling [00:12:57] Yes.
Michael T. Mulligan [00:12:57] And then in the context of the case, which has gotten some a fair bit of attention in Victoria, that tragic case of the child in the crosswalk.
Adam Stirling [00:13:06] Yes.
Michael T. Mulligan [00:13:07] You are also in breach of your policy if you were convicted of a motor vehicle related criminal code offence. And the particular local case, the charge is dangerous driving causing bodily harm. And so if there is a conviction for that, it means that the driver has no insurance and will be personally responsible for all of the costs of caring for that, for the child in the future, which could be very significant and would be essentialism of a lifetime obligation to be paying for those things. You can also be in breach if you do things like if you drive your vehicle while, you’re prohibited from driving your vehicle. That’s also a breach. And you can be in another thing, which is one headache worth knowing about for people, but you’re also not covered for intentional acts of violence. Interestingly, committed while, sane by means of a motor vehicle. So that would mean, for example, if you intentionally hit somebody, like if you take your car and rammed somebody, get into a road rage thing and hit somebody, you are not covered. And sure, in that one, I think it would be a matter of general principle as well. Insurance is to cover accidents, not intentional acts of violence. Sort of like you can get fire insurance for your house, but it doesn’t cover you if you go out and intentionally burn your own house down.
Adam Stirling [00:14:24] The caveat that it has to be intentional and done while saying is a superfluous because I didn’t think someone who lacked capacity could intentionally do anything. Am I wrong?
Michael T. Mulligan [00:14:33] Well, I mean, I think you could have a state of affairs where somebody, for example, thinks they’re being, I don’t know, chased by a dragon. And so, they are intentionally trying to, you know.
Adam Stirling [00:14:43] Oh okay, I see.
Michael T. Mulligan [00:14:43] Run into the dragon. Yeah, I get that. But, you know, there was no dragon and it was a 1978 Pinto or something and in that circumstance, you’re probably still OK. I think we’d all agree. But the takeaway from all of this and I think it comes as a total surprise to most people who weren’t spending their days flipping through the Insurance (Vehicle) Act Regulations. Is that when you buy your ICBC insurance, that does not mean that you are covered no matter what. If you’re prohibited, if you commit a criminal offence, if you’re found to have is the dangerous driving, one is an interesting one, right? These dangerous driving is defined under the criminal code as a marked departure from the standard of care of a reasonably prudent driver. That’s how that’s defined. So, what it really means is that if you engage in that sort of type of driving, that’s a marked departure. Right. Maybe somebody is, you know, texting, speeding, doing this sort of thing. You may find that if you have an accident, you are personally on the hook for it. And so, I think that’s an important thing for people to know. Another one is this, in addition to a circumstance where somebody is convicted of impaired driving, even if you’re not charged or convicted. If the ICBC could simply establish that you were intoxicated, by drugs or alcohol, to such an extent that you were incapable of proper control of your vehicle, you’re also in breach. So, there are several pages of circumstances, some clear, some open to, I think, more interpretations, some of those things like, you know, not authorized to or qualified to operate or an illicit or prohibited trade or transportation. And you should be broadly aware of these things, because if you engage in any of that sort of conduct, you’re putting yourself at really serious financial jeopardy because you have no insurance.
Adam Stirling [00:16:42] All right. Let’s take a break. Legally speaking continues in just a moment on CFAX 1070.
Announcer [00:16:50] COMMERCIAL…. It’s Adam Sterling on CFAX 1070.
Adam Stirling [00:16:53] And is Legally Speaking with Michael Mulligan for Mulligan Defence Lawyers. As we go into the third story of the week, the Law Society, Michael, has very careful prescriptions and regulations on how lawyers, such as yourself, may or may not conduct themselves as they undertake business and communicate with the public. Communication with the public at issue in this next story.
Michael T. Mulligan [00:17:15] Yeah, this is going to be a very interesting one to watch how it plays out and what was announced was a citation for a lawyer. So, it doesn’t mean that they’ve concluded that the lawyer’s done something wrong, but the lawyers alleged to have done something wrong. So, what it’s likely to produce will be a hearing to sort out whether that so or not. But the, the nature of the citation is an interesting one. And it arises out of an interview that a lawyer gave, to the media, and the citation by the Law Society alleges that the lawyer disclosed confidential information of a former client that was contained in a Crown disclosure package, subject to contrary to a bunch of alleged rules and then this language of then implied undertaking. So, let’s break down what’s going on here.
Adam Stirling [00:18:04] OK.
Michael T. Mulligan [00:18:05] So first of all, the allegation here is that the lawyer disclosed information of a former client, and in that regard, lawyers have a bunch of rules surrounding keeping client information confidential. Right. Not surprising to most people. And the rules say that: “A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of a professional relationship and must not divulge any such information” except, and then a list of various exceptions, things like it being authorized by the client, required by a court, requested by the law society, they exempt themselves or otherwise permitted by the rule. And that obligation, to keep information confidential, extends to former clients. So, a lawyer is not permitted to go out and reveal information about somebody, even if they are no longer a client of the lawyer. And here the allegation is that the lawyer disclosed information about, interestingly, a former client. Now, this is, I think, something people should know about. There is an exception to that duty to keep information confidential. And here’s what that is: A lawyer may, so it’s optional, is up to the lawyer, “may disclose confidential information, but must not disclose more information that is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.” So, what that means, for example, is that if you went and saw a lawyer and said, look, I’m going to go kill my wife tonight, I’m doing it at 8:00. Here’s the gun. You know, I’ll be calling you at 9:30. You the lawyer in that circumstance would be permitted to, to the extent necessary, disclose information to ensure that the person isn’t killed. So, the solicitor client confidentiality isn’t limitless?
Adam Stirling [00:20:12] No.
Michael T. Mulligan [00:20:13] It is close to its limit…. It is as close to that as one could imagine. But there are exceptions, including that one that would permit a lawyer to disclose some information to save somebodies life if you know that that’s necessary. The other sections that the Law Society cited here in this plantation deal with the circumstances in which a lawyer is permitted to communicate with the public. And I must say, I’m happy that that’s permitted, or I might be in trouble right now.
Adam Stirling [00:20:46] Indeed
Michael T. Mulligan [00:20:48] And here’s the language used by the Law Society rules in that regard. It says that: “Provided that there is no infringement of the lawyer’s obligation to the client, the profession, the courts or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.” So, there are a whole bunch of things bound up in that in terms of what weight be permitted and not permitted. There are some express prohibitions on providing information that would interfere with the fair a fair trial or hearing. And so, for example, it would be improper for a lawyer to go out and make statements that might interfere with a jury trial, for example. Right. If somebody was to come out and make statements about things that occurred when the jury wasn’t in the room or things that weren’t in evidence trying to interfere with them. That would be a problem.
Adam Stirling [00:21:41] So I know the language is a substantial likelihood of materially prejudicing a party’s right to a fair trial. What is materially mean? Does that mean it flips the result or…?
Michael T. Mulligan [00:21:50] I think it would be sort of in a substantial way, not sort of anything that one could imagine. But it would have to be in some meaningful way.
Adam Stirling [00:21:58] Okay.
Michael T. Mulligan [00:21:58] The other language, which is interesting in the citation, refers to this implied undertaking. What’s that? That comes out of a case from B.C. back in 2011 and it was that legislative B.C. rail legislative raid case people will remember. And in that case, there was a whole bunch of disclosure material given to the accused to allow them to defend themselves. And ultimately there was an order made that the that material be returned at the end of the proceedings because they want the accused wished to keep it, to use it for other purposes. I guess civil litigation or other things. And the court found that there was this implied undertaking like an obligation to only use the material for the purpose of making full answer in defence to the criminal charge and not for some other purpose.
Adam Stirling [00:22:48] Interesting. We’re out of time. We have to wrap things up for this week.
Michael T. Mulligan [00:22:52] There it is. Well, I’m just going to take some comfort in the express permission to make public statements and things. And bear in mind that there are some limits on what a lawyer is permitted to say.
Adam Stirling [00:23:02] And we are very fortunate to benefit from your ability to do so every week on Thursday here at CFAX 1070. Michael Mulligan, again, thank you, as always. Thank you. Michael Mulligan, during the second half of our second hour, every Thursday on CFAX 1070.
Automatically Transcribed on December 5, 2019 – MULLIGAN DEFENCE LAWYERS