8.5 Years in Jail for Driving, HPV Vaccine dispute, and a Driving Appeal by 80 Year Old

 

What happens when the law collides with contentious family decisions and public safety? Join us as we sit down with Michael Mulligan, a barrister and solicitor from Mulligan Defence Lawyers, to dissect a variety of complex legal scenarios. From the stringent criteria required to appeal to the Supreme Court of Canada to a severe sentence handed down in Ontario for driving while disqualified, we explore the heavy legal consequences that can arise from repeated offences. This episode sheds light on British Columbia’s stringent driving prohibition laws, illustrating how infractions can lead to significant penalties.

Have you ever wondered how the courts handle parental disputes over medical decisions for their children? We dive into a heated legal battle in British Columbia, where separated parents clashed over their daughter’s HPV vaccination. While the mother championed the vaccine for its cancer-preventing benefits, the father opposed it, influenced by dubious online sources. Through the lens of Section 49 of the Family Law Act, Michael Mulligan discusses how the judge ultimately ruled in favour of the mother, underscoring the importance of credible evidence and the overwhelming benefits of the HPV vaccine.

Finally, we examine two pivotal cases that underscore the importance of evidence-based decision-making. Discover how a judge mandated a child’s vaccination, overriding a father’s objections rooted in internet misinformation, and the implications of this decision. We also explore a case involving an 80-year-old man who was required to retake a driving test following a cognitive assessment despite a subsequent higher score. This episode highlights the delicate balance between individual rights and societal safety, with expert insights from Michael Mulligan that you won’t want to miss.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking June 27, 2024

Adam Stirling [00:00:00] It’s time for a regular segment with Barrister and Solicitor with Mulligan Defence Lawyers. Michael Mulligan joining us for Legally Speaking. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:08] Hey. Good morning. I’m doing great. Hopefully, you’ve dug out from under the pile of emojis you’ve been receiving.

Adam Stirling [00:00:14] I’m getting some imaginative ones. I had somebody ask me if I could receive gifs. The answer is I don’t think I can yet, but the future is bright.

Michael T. Mulligan [00:00:23] That’s correct. Technology is never ending. It’s amazing. Now even emojis, right? next day gifs.

Adam Stirling [00:00:28] We actually had one where we discussed the case about the interpretation of an emoji and how it may have influenced either a contract or something akin to that. I’m just getting a glimmer of a memory. So you’re right, we’re getting dragged into the 21st century. What’s on our agenda today?

Michael T. Mulligan [00:00:43] The first case is a brand new one that, just came out this morning, along with a number of leave applications from the Supreme Court of Canada. That’s, first of all, just worth commenting on, generally, with very few exceptions. You need to get permission to go to the Supreme Court of Canada. You can’t just go there because you’re very litigious or wish to spend more money and you’re going to court. There’s an exception to that. You know, in criminal cases where there is a dissent from one judge of the Court of Appeal, like if you’re convicted, you appeal it. And one of the three judges in the Court of Appeal says, wait a minute, you shouldn’t have been convicted. You can go there as of right. But barring that small exception, and I should say, it’s apparent the Supreme Court of Canada judges don’t like that exemption, from how they often, dismiss those cases pretty quickly. You need to get permission. And so once a week, they would usually issue a bunch of, decisions, saying, here’s what not necessarily once a week, but they would issue decision saying we are going to permit or deny permission to go to the Supreme Court of Canada. And they take the general position that, you know, they’re not a court of errors. They don’t try to fix every wrong in the country. They can’t. They’re not enough of them.

Adam Stirling [00:01:55] hmm.

Michael T. Mulligan [00:01:55] They try to deal with things which would have bigger issues that would impact many people. Right. Because they just can’t sort out every individual wrongdoing. In any case, it was in that context, one of the, decisions today refusing leave caught my eye. I thought people should be aware of it.

Adam Stirling [00:02:10] Yeah.

Michael T. Mulligan [00:02:10] It’s a case involving a man who is convicted of several counts of driving while disqualified. And you might say, well, how could that ever go to the Supreme Court of Canada? And indeed, it was a sentence appeal this man was pursuing. The conviction in this case was from Ontario, and he had been convicted of five counts of driving while disqualified. The sentence he received was eight and a half years for driving while disqualified. Which is what caught my attention.

Adam Stirling [00:02:40] yeah.

Michael T. Mulligan [00:02:41] Now, I should say that driving while disqualified or prohibited, is an offence which is both an offence under the Provincial Motor Vehicle Act, including in B.C. and under the Criminal Code. And where you would wind up the charge or under which of those you’d be charged under. Would depend on the basis for the underlying prohibition. And in B.C., the law surrounding driving, while prohibited, is very strict. And it’s important for people to know about. And because driving while prohibited is a different thing from just I didn’t get my license, or it expired or whatever. It’s in a state where you’ve been actively told you cannot drive. And you drive anyways knowing that you’re not allowed to, and in B.C., for example, under the Provincial Motor Vehicle Act, it, it is the fastest way, that a person actually goes to jail, because on a second or subsequent conviction for driving while prohibited under the Provincial Motor Vehicle Act, jail is mandatory.

Adam Stirling [00:03:42] wow.

Michael T. Mulligan [00:03:42] So it is one of the few or one of the ways that ordinary sort of working people that haven’t had many problems before in their life actually wind up getting a trip to Wilkinson Road Jail.

Adam Stirling [00:03:52] Wow.

Michael T. Mulligan [00:03:53] But this particular prosecution, these were under the Criminal Code for driving while prohibited.

Adam Stirling [00:03:59] mm hmm.

Michael T. Mulligan [00:03:59] The underlying the fellow had a very bad record, which is what explains the, the sentence. He had been convicted in 2018 for a bad accident where he fled from police, went through a red light, collided with another car, and seriously hurt the person in the other car for which he received a penitentiary sentence and a driving prohibition. But he had a bad record. And I should say on this occasion, while serving that sentence at one for that bad accident, he was released on parole, living in a halfway house, he had a condition, parole condition, to not drive, as well as various different driving prohibitions. 14 of them under the Criminal Code and 8 under provincial legislation. So he’d been told on, you know, many occasions, stop driving. And, he was not listening, but yeah, a total of 22 different driving prohibitions.

Adam Stirling [00:04:55] Wow.

Michael T. Mulligan [00:04:56] And while on parole and living in a halfway house, he was spotted by the police, driving around for an hour, and was eventually pulled over by them. I guess they were watching to see how long you’d be driving for.

Adam Stirling [00:05:09] Yeah.

Michael T. Mulligan [00:05:09] And he had a, a fake license, which he had with him.

Adam Stirling [00:05:12] Wow.

Michael T. Mulligan [00:05:13] He also had a history of more than 30 convictions for driving offences, including 15 prior convictions for driving while disqualified. So a very, very bad driving record. And it was in that context that the judge imposed an eight-and-a-half-year penitentiary sentence, when he pled guilty to those occasions of driving for that hour when the police saw him.

Adam Stirling [00:05:39] Wow.

Michael T. Mulligan [00:05:39] So, you know, the, the other interesting thing is that the maximum penalty under the Criminal Code for driving while disqualified, has been increased on several occasions, and it now the maximum penalty you can get for that is now ten years in prison. Which is pretty remarkable. Now, there is a principle that, you know, the highest maximum sentence would be reserved for the worst offender in the worst circumstance. This story’s getting pretty close. So you’ve got eight and a half years.

Adam Stirling [00:06:10] Yeah.

Michael T. Mulligan [00:06:10] The judge found that on all five occasions when he drove for that hour, he was getting an eight-year sentence to be served concurrently with each other. But consecutively to the remaining. Whatever, I think it was three years of that sentence. He was still serving but was on parole for the time that he drove. So he’ll be in prison for another decade. And his various, arguments on appeal, which were dismissed by the Ontario Court of Appeal. Included arguments about principles, including a one principle that sometimes is referred to as the jump principles or the idea that, you know, if you, you know, were to evicted a second time for the seat or another time for the same offence, you’re going to get almost certainly an increased sentence. But the idea that shouldn’t be a massive increase. Like if somebody this guy the last longest sentence he’d receive for driving while disqualified looks like was two years. And so he’s arguing that eight and a half was too big a jump for two. That didn’t get any traction. He also argued that the judge hadn’t given sufficient reasons that got no traction, argued that the totality principle, which is other principles, or the overall sentence shouldn’t be excessive.

Adam Stirling [00:07:24] hmm.

Michael T. Mulligan [00:07:24] And the Court of Appeal concluded there that, no, you know, you the judge’s reasoning was reasonable. You can’t on, when you appeal a sentence, it’s not a matter of going to the Court of Appeal or Supreme Court of Canada and saying, well, what do you think of this? You’d have to show that there was some error, legal error in terms of how the decision was arrived at in the Court of Appeal found there was nothing of that kind. And so the Court of Appeal upheld the eight-and-a-half-year sentence. And, this morning, the Supreme Court of Canada refused leave. So that’s, I think, for my, in my experience about the longest sentence I’ve ever seen for driving while disqualified. They felt that there was nothing particularly dangerous about the driving on the occasion he was observed, he wasn’t driving, wasn’t speeding, didn’t cause any accidents. But he’d been told 22 times, stop doing this. And he just wouldn’t. And so he’ll be in the penitentiary for a very long time thinking about what he did. But the other takeaway for people even if you’re not at, 22 driving prohibitions. The consequences, even for a single conviction, are serious. You wind up with an additional one-year driving prohibition as a minimum, and on a second or subsequent, you automatically go to jail. So just be aware of that. It’s not like leaving your license at home. It’s treated much more seriously.

Adam Stirling [00:08:51] Yeah.

Michael T. Mulligan [00:08:51] And so that’s the latest from the Supreme Court of Canada.

Adam Stirling [00:08:53] All right. We’ll take our break there. Michael Mulligan with Mulligan. Defence Lawyers, Legally Speaking, continues right after this.

[00:08:59] COMMERCIAL.

Adam Stirling [00:08:59] All right. We’re back on the air here at CFAX 1070, Legally Speaking, with Michael Mulligan for Mulligan Defence Lawyers fascinating leave to appeal to the Supreme Court of Canada refused for a sentence of eight and a half years for driving while disqualified. Although, Michael, as you helpfully elaborated before the break, it was not just 1 or 2 or 10 or 20 issues. It was many repeatedly, to the point where at least we know the guy can’t keep driving a car if he’s in a jail cell. If that’s our only remedy, then that’s our only remedy. What’s next on our list?

Michael T. Mulligan [00:09:30] Next on the list is a B.C. case. It’s a case involving a dispute between parents, separated, parents of two children about whether the elder of the two was a 12-year-old girl should receive vaccination at school for HPV. And the purpose of the HPV vaccination would be to prevent, ultimately, various forms of cancer, including cervical cancer. And this application arose. This is something to know about as well. In B.C. we have a thing called the Family Law Act. You know and section 49 of the Family Law Act permits an application to a judge for the judge to direct what should happen with respect to an issue involving a child where parents can’t agree on it. And in this particular case, the father of the 12-year-old girl was not wanting her to receive the HPV vaccine at school. And the mother wanted the child to receive the vaccine. And so that was the basis that the application was made. And all that kind of an application. The judge has an obligation to make a decision which would be in the best interests of the child. That’s the NorthStar guiding principle of how we make decisions involving children.

Adam Stirling [00:10:56] Yes.

Michael T. Mulligan [00:10:57] And the Family Law Act sets out a whole list of things for a judge to think about when determining what would be in a child’s best interest. The first of which is the child’s health and emotional well-being. And includes various other things, including the child’s views. Unless it would be inappropriate to consider them. You know, the history of childcare. On and on it goes. And so the case started, when notice came home from school about the plan to vaccinate all the children. The father who had apparently been spending a little too much time perhaps on the internet sent the mother notice he didn’t want that to happen. Sent a notice to the school saying, don’t do this and sent the mother in support of his position, a number of TikTok videos. I’m not sure whether TikTok videos are the best place in the world to get your medical information.

Adam Stirling [00:11:50] ahh.

Michael T. Mulligan [00:11:50] But, indeed that is what, the father said to the mother.

Adam Stirling [00:11:54] Indeed.

Michael T. Mulligan [00:11:54] Now, the other thing it was interesting about it is that, came out in the course of the litigation, that the TikTok videos had been, and other videos had been shown to the child and on the description of the mother, the videos were very disturbing. And in her view were not appropriate, for, a child, because they were talking about things like how a vaccine could kill you, and how people were committing suicide.

Adam Stirling [00:12:24] Oh.

Michael T. Mulligan [00:12:25] Very problematic. Information for the 12-year-old. And so then the case didn’t get litigated on the basis of TikTok videos. In fact, interestingly, both parties provided all sorts of information about why in their opposing views, either the HPV vaccine was a, deadly risk, or an excellent idea that would prevent cancer. And so one of the things which is you know I think a really positive thing about having a legal system as we do is it results in a rational, reasoned analysis of these things, right. Rather than a decision based on what you might be, you know, trending on Twitter or what might be in your feed on TikTok. And so the father who didn’t want this to be done provided information. He went out and got information to support his position, which the judge carefully analyzed. It included things like court decisions from the U.S. where people were suing, claiming that there was some, effect of the vaccine. And then a bunch of medical information provided by the mother. And the judge carefully reviewed all of that, and concluded that the material that the father had relied upon, just didn’t support the proposition that this was some kind of a serious risk to people, that in some cases things like, court cases that haven’t been resolved isn’t evidence of what they claim being pointed out, that one of the, people that the, judge or the father had found online information posted from was a doctor who was educated in China, whose positions, when you bear down on the basis for the did not appear to be well-founded. And ultimately the judge concluded that you know information provided by the mother concerning the benefits of this vaccine and how the benefits vastly outweigh the risks, was much more reliable. And the judge carefully analyzed all of that. Now, the other thing to be pointed out here, and it becomes apparent, in the decision, when the judge carefully analyses all of the, information that’s put before her, is that many things in life involve not zero risk. Right.

Adam Stirling [00:14:53] Yeah.

Michael T. Mulligan [00:14:54] You know, it’s like if you go and see your doctor and you say the doctor says, oh, my goodness, your appendix has burst. If you ask the doctor, you know. Is there any risk when you take out my appendix? Well, the response will be well yes. You could have an adverse reaction to the anesthetic or, you know, I could drop leave a sponge and you end up taking it out. Things happen. Right.

Adam Stirling [00:15:12] yeah.

Michael T. Mulligan [00:15:12] There’s no there’s very few things in life that are absolutely risk free. But much like the decision about. Do you want the operation to get your burst appendix out? What you need to weigh up are the theoretical risks. Yes. The doctor could mess up. Yes, you could leave a sponge, you know. Yes. All those things could happen. But the risk of not getting your appendix out is, you know, could be almost certain death.

Adam Stirling [00:15:35] Yea.

Michael T. Mulligan [00:15:35] and so what is required rationally to make a decision about things like should I receive a vaccination against something. And as the judge pointed out, the medical information was that without a vaccine, something like 75% of people who are sexually active will at some point wind up with an infection, an H infection.

Adam Stirling [00:15:57] 75 %

Michael T. Mulligan [00:15:58] 75%. And for most of them, nothing comes of it.

Adam Stirling [00:16:02] All right. Yeah.

Michael T. Mulligan [00:16:03] You know, it goes away, but, for some of those people, it’ll produce, you know, warts and some of those will turn into cancers of various times. And they can kill you. And so, while you know, it is true that much like anything, there can be some risk to something. You know, you get an infection from the needle.

Adam Stirling [00:16:26] yeah.

Michael T. Mulligan [00:16:26] Or there’s some odd thing that anything can happen. Right. But when the judge beard down and rationally assessed it, it was absolutely clear, that. Well, there’s not zero risk to anything in this case the interests of the child were very strongly in favour of getting vaccinated. And the vaccinations, the other evidence was more effective. If they are provided before a child becomes older and sexually active. And so that’s why waiting and seeing as the father argues which only wait and see what happens in the US, the judge concluded, no, that’s just not in the child’s best interest. And so as a result of all of that, the judge made her decision, and concluded that indeed, it was in the best interest of the child, ordered that the, mothers wishes to have the child vaccinated, would prevail. And further, ordered, that the, father, stop showing the child things like TikTok videos and other things online, that were causing the child to become extremely frightened about the prospect of this without any foundation. The other takeaway, I must say, reading that it’s just an example of the internet in the world is a very, very big place, right?

Adam Stirling [00:17:43] yes, yeah.

Michael T. Mulligan [00:17:43] And if you come to if you’re persuaded or something based on some TikTok video, you read or watched, and then you go to seek out anything that might support that view, you will find it.

Adam Stirling [00:17:55] Yeah.

Michael T. Mulligan [00:17:55] Right. The internet is just so big. Any view, no matter how marginal or lacking in merit, if you go to seek out other people that, will agree with your position, that is without merit, you’ll find it.

Adam Stirling [00:18:10] Yes.

Michael T. Mulligan [00:18:11] And, you know I have no doubt that the father here was genuinely concerned. And no doubt there were things that you could find if you look for it, like through the litigation, people claiming things happened or, you know, this Chinese educated doctor who come to some perhaps unfounded position, you’ll find it, and if you combine the fact that you can find support for almost any crazy idea somewhere on the internet with or without doing a proper logical, rational analysis like the judge did, trying to analyze something like what is the risk? Everything of some risk, against the benefit. You’ll come to a decision which may be very much contrary to your own interests, or in this case, the interests of the child. And so, the child here will get her vaccination. And, we can rest assured that there’s been a careful, rational analysis, about, why that is genuinely in her best interest.

Adam Stirling [00:19:07] Michael Mulligan, we’ve got 3.5 minutes left. How shall we spend them?

Michael T. Mulligan [00:19:11] Sure. I think the last one. Another thing people worth knowing about. It’s a, decision, by way of a judicial review and an appeal to the B.C. Court of Appeal from a man who was 80 years of age. And in B.C., when you’re 80, the superintendent of motor vehicles, who is responsible for, issuing and revoking driver’s licenses, required or sent him a letter requesting that he go and provide medical information to confirm that he was still safe to drive. That’s a routine thing. And the man went to his doctor. Did that doctor who sent in a report, and the report concluded a sort of an in-office quickie that sounds like assessment of his mental capacity and cognitive assessment, cognitive function. And that came back 23 out of 30, but it was unclear what exactly that would mean. The doctor offered the opinion that he was safe to drive and there was no problem. The superintendent of Motor Vehicles concluded. No, there’s some evidence here of a cognitive change and directed him to go and do a driving test. He did the driving test and unfortunately failed it. The man then went and went back to his doctor, who repeated the test, and the test came back. This time it was 29 out of 30. So he sent that into the superintendent and said, hey, you know, I don’t have any cognitive problem. I want my driver’s license back. The superintendent eventually responded with, okay, fine. Go do another road test then. And so that was the basis of the, judicial review. And the man was arguing, hey, because the second cognitive test came back saying, I’ve been great shape. I don’t have any cognitive issues. That was the whole basis for you ordering me to do the road test. Therefore, I shouldn’t have to do the road test. I should just get my license back. And so that was the issue that went to judicial review and eventually to the Court of Appeal, who just rendered a decision about that. And the Court of Appeal pointed out that the trial to the judge that initially dismissed the man’s application for a review didn’t quite get it right in terms of how they analyzed it. The proper analysis should not have been, should have been whether the original decision to send him for a road test was an unreasonable one. And the Court of Appeal concluded that no, it wasn’t. Even though ultimately there was a second cognitive test done after the road test saying, look like the man did swimmingly on that.

Adam Stirling [00:21:42] hmm.

Michael T. Mulligan [00:21:42] When the Superintendent sent him to the road test, there was a reasonable basis to do that. They were concerned that he might have an issue about safe driving.

Adam Stirling [00:21:49] Yes.

Michael T. Mulligan [00:21:50] And even though when the second test came back saying no, cognitively it’s fine. By that point, he’d failed the road test. And so that didn’t undermine the decision. And so the Court of Appeal said, look, this was fine. It was reasonable. Even now, even though it is now clear the man doesn’t have any cognitive issue, if he wishes to get his driving license back, he’s going to need to go and do another road test. And what underlies all of that is in BC you have no right to drive. It’s a privilege, not a right. And ultimately, the obligation there in the Superintendent is to make sure people are safe to drive. And so that’s going to be sort of a NorthStar for how those decisions are made. And even though the man had an interesting argument, probably, and looks like he was self-representative, which is probably self-represented, probably further evidence he doesn’t have any cognitive issue. He did a very competent job and an interesting issue. If he wants to drive again, he’ll need to go back and repeat the driving test. So that’s the latest from the Court of Appeal.

Adam Stirling [00:22:47] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, every Thursday here on the program, pleasure is always.

Automatically Transcribed on July 10, 2024 – MULLIGAN DEFENCE LAWYERS