Adults with Severe Mental Illness and Addictions in Elderly Care Facilities and Statement Admissibility

 

Can we really ensure the safety and dignity of elderly care facility residents when young adults with severe mental health and addiction issues are placed among them? This episode exposes the unsettling reality in Victoria and Nanaimo, where vulnerable elderly individuals share long-term care homes with younger adults facing significant challenges. We break down the legal ramifications, analyze the Resident’s Bill of Rights, and reveal shocking staff reports of drug use, violence, and inadequate staffing. The lack of enforcement mechanisms leaves elderly residents defenceless, sparking a crucial conversation about the need for alternative facilities.

Shifting gears, we also tackle the complex world of Canadian criminal law, specifically focusing on out-of-court statements. What circumstances make these statements admissible, and how reliable are they? With examples like dying declarations and res gestae, we explore the stringent criteria judges use to weigh their validity. A landmark Supreme Court of Canada case involving a pellet gun and the scrutiny of a statement’s reliability provides a riveting backdrop. Join us as we demystify common misconceptions about police statements, highlighting that true justice hinges on solid witness testimonies in court.

 

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 Sep 26, 2024

Adam Stirling [00:00:00] It’s time for the latest with Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking on CFAX with Michael Mulligan. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:08] Hey, good morning. I’m doing great. It’s always good to be here.

Adam Stirling [00:00:10] Some interesting things on the agenda. First topic I see young adults with mental health and addictions placed in long-term care homes in Victoria and Nanaimo. I know this is something that’s been in the news. What are your thoughts on this and the legal implications?

Michael T. Mulligan [00:00:24] Sure. So the background of it involves reports of, in two, long term care facilities which are intended for Seniors who have complex long term Care requirements. The government has, apparently now for some time, has been placing young adults with serious mental health and often drug addiction issues in the same facilities. And concerns about that have come to light as a result of staff reporting on troubling behaviour, including frequent drug use and weapons, alcohol, and violence with respect to staff and others. And the concerns about that ought to be obvious ones. But in terms of the sort of legal circumstance, there are some special rights and protections that are intended to apply to residents in hospitals and other care facilities. And we do have in British Columbia a thing which is entitled be Residents Bill of Rights, and it has a number of sort of rights that I think most people would agree are sensible and good things.

Adam Stirling [00:01:43] Hmm.

Michael T. Mulligan [00:01:43] They include, for example, an adult person or sort of their rights to things like safety and dignity, like an adult person has a right in care to the protection and promotion of their health, safety and dignity, including the right to be a to be treated in a manner and delivered in an environment that promotes his or her health, safety and dignity. Seems like a pretty good, pretty good thing.

Adam Stirling [00:02:11] Yeah.

Michael T. Mulligan [00:02:11] Amongst others.

Adam Stirling [00:02:12] Yeah.

Michael T. Mulligan [00:02:13] And there’s actually a legal requirement those have a legal source there, not just positive things to say. And indeed, we have in British Columbia an act called the Hospital Act. And that act actually makes it a legal requirement that that patient’s bill of rights, including those rights to safety and dignity and so on, be prominently posted in places like hospitals and long-term care facilities like the ones we’ve been talking about. But practical trouble is that when you have even if they tell you that you have a right and even if they make it a legal requirement that that be prominently posted somewhere, there isn’t much by way of an enforcement mechanism to ensure that those things are in fact going on. And that’s particularly a problem when we’re dealing with facilities like these ones, the two particular facilities, one is called the Summit, which is in Victoria on Hillside Avenue.

Adam Stirling [00:03:11] Yeah.

Michael T. Mulligan [00:03:11] And there is another similar facility I think is Dufferin place or words to that effect up in Nanaimo. And the population there, when you look at who would be in, for example, the Summit in Victoria, it’s a 320-bed facility. And the average age of people that are there is 84. And the people that are there are people that are dealing with real complex problems, dementia and so forth. And it would seem to most people, I think, obvious that combining that with young adults who are suffering from mental health and drug addictions and so on is unlikely to be a very satisfactory state of affairs. And based on the reports from staff, that clearly appears to be so. One of the staff members is reported of talking about it and speaking of it is operating like a homeless shelter with no rules or specialized staffing to deal with drugs, weapons, alcohol, and violence. And so combining those things seems like an awfully poor idea.

Adam Stirling [00:04:13] Yeah.

Michael T. Mulligan [00:04:13] The trouble is that even if that might be in violation of that patient’s bill of Rights, which is required by the Hospital act to be posted. Best of luck to the, on average, 84-year-old person dealing with dementia to try to take any step to have that enforced. And so that’s the likely explanation as to why that’s now been going on apparently for the past two years. And it’s only been a result of staff members there reporting on that completely unsatisfactory state of affairs that there’s now some movement to try to remedy the problem. And in fact, Island Health has posted a call for proposals for other facilities for people who are not seniors. But that doesn’t close until the middle of next month. And so hopefully something will occur that will have the desired effect so that the residents of those kinds of facilities described as the frail elderly aren’t being housed in the same place where young adults dealing with serious drug addiction and mental illness are being placed, no doubt that they both need care. It is not to minimize any of that. But, you know, it’s just a matter of whether it’s appropriate to have those things combined, particularly where there aren’t special controls to make sure that when you have young people who are suffering from those sort of problems aren’t interfering with the what is supposed to be a legal right to things like the dignity and safety of the elderly population that are otherwise being held there. So clearly, a problematic state of affairs is fortunate that eventually has come to light as a result of staff members speaking about it. And hopefully there’s some solution arise there soon so that the Residents Bill of Rights, which is legally required to be prominently posted, actually has some meaning apart from simply posting it on the wall and hoping for the best.

Adam Stirling [00:06:14] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking. We’ll take our first break here and return in just a moment.

[00:06:21] COMMERCIAL.

Adam Stirling [00:06:21] Back on the air here at CFAX 1070, Legally Speaking, continues with Michael Mulligan with Mulligan Defence Lawyers. Up next, shell casings from a 2001 murder conviction tested with new DNA technology. What’s happening?

Michael T. Mulligan [00:06:34] Well, there’s a lot going on here. The background of this case, it’s a busy case and it involves a man who was in 2001 convicted of murdering his then partner. And it was a shooting. And the first interesting thing about the case is that the basis for the conviction was what’s referred to as Mr. Big Operation. And we’ve spoken about those a little bit in the past. Mr. Big Operation involves a whole bunch of undercover police befriending the suspect and then eventually claiming to be part of a criminal organization where they try to lure the person into the fake organization, having them do things like transport bags of diamonds for money and do other things, make the person feel important. And then eventually they say some version of this to the person and they say, look you want to be a part of our great profitable criminal organization. We need to be able to know you, trust you, we can trust you. So we need you to confess to committing a crime. And then we managed to get the person undercover to confess to doing something. And that becomes the evidence against them. That’s how they this man was convicted back in 2001. Interestingly, those kinds of operations are prohibited in many countries, including the United States and Great Britain. We allowed them here. But since 2001, rules have tightened up in terms of when those kinds of confessions can be used, because we’ve had multiple examples of where people who we eventually find out to be innocent.

Adam Stirling [00:08:06] yeah.

Michael T. Mulligan [00:08:06] Wind up confessing because either they are afraid of the fictitious Mr. Big, or they want to be part of some group that’s befriended them.

Adam Stirling [00:08:13] yeah.

Michael T. Mulligan [00:08:13] And so we know it leads to false confessions. And so we’ve introduced some special rules about that.

Adam Stirling [00:08:18] Yeah.

Michael T. Mulligan [00:08:18] So that was the reason the man was convicted. But the other elements of this case involve these shell casings from the murder weapon. And there was evidence that these matched the particular gun. And there was also evidence that they had DNA on them. But it wasn’t possible with the technology that existed at the time and indeed, the technology the RCMP still have now to analyze that legally to figure out who’s it was. And this man, after his jury conviction, he appealed it to the B.C. Court of Appeal, unsuccessfully, exhausted his appeals. And you don’t get to just go to the Supreme Court of Canada because you really want to. They’re only dealing with cases of national importance, and this likely doesn’t cut it. And so this man was in prison for a very long time maintaining his innocence. But one of the interesting things here is that there’s a special section of the criminal code that allows a person to apply to the Federal Minister of Justice. And if the Minister of Justice can be fair, is satisfied that there is a reasonable basis to conclude that there was a miscarriage of justice, that that likely occurred. The Minister of Justice has the power to direct the matter, the case back to the Court of Appeal for another hearing, which is very unusual. Typically as like you have your appeal lost. That’s it. Right.

Adam Stirling [00:09:38] Yeah.

Michael T. Mulligan [00:09:38] And so in this case, the Minister of Justice was persuaded that there is a likely miscarriage of justice that occurred in this case. One of the primary issues was the nature of Mr. Big confession but also there’s the secondary issue with respect to the DNA found on. These shell casings. And so the case is now back in the Court of Appeal for the second time as a result of that rare provision where the Minister of Justice can order a case back there for reconsideration. And the most recent issue that the Court of Appeal was dealing with is the issue About these shell casings because they were preserved. And in fact, recently they were tested and it’s determined there is DNA on them. But the RCMP was unable to analyze it with the technology they have. And so what has just occurred was an application to ask to have the DNA samples and the shell casing links provided to BC IT. And BC IT is a more advanced type of DNA analysis. So that they believe they’re going to be able to extract DNA from the shell casings Which will be important evidence about whether somebody else might have committed the murder. If their DNA is on the shell casings used to shoot the person.

Adam Stirling [00:11:01] Yeah.

Michael T. Mulligan [00:11:02] And so that’s just what’s been ordered. And we’ll have to wait and see what the results of the analysis produce. But I thought it was an interesting case because it has those elements of that. Mr. big confession and how that has changed over time. And also the element of advancements of DNA technology which in fact now in multiple cases has been how it’s been possible to determine that those Mr. Big confessions Are, on some occasions completely Wrong. And so that’s how we’ve exonerated multiple people who have confessed pursuant to that kind of an operation. And now the law is that those kinds of confessions in a Mr. Big operation are presumptively not admissible unless the crown controls things like there being corroborative evidence that would support what the person said.

Adam Stirling [00:11:54] mm hmm.

Michael T. Mulligan [00:11:55] And the person who contrasted said, yes, I did it, and I buried the murder weapon under the oak tree, and they go dig up the dig. It up and yes, it matches. That might still be admissible. So for this man, he’s very fortunate that he’s going to have another hearing in the Court of Appeal and fortunate as well that the DNA technologies evolved. And so you can see what BC IT is able to do with the shell casings and hopefully we can have some confidence. We haven’t imprisoned an innocent person for many years.

Adam Stirling [00:12:25] Indeed, our next story, an out of court statement, improperly relied upon a conviction overturned. What’s happening?

Michael T. Mulligan [00:12:33] So this is a brand new to you, sort of the Supreme Court of Canada and the background of it. It’s important for people to know this. This is a common misunderstanding with criminal cases, is that criminal cases don’t operate based on like statements, things people write down. Right. Criminal cases operate presumptively on live witnesses showing up and testifying about what they saw or did and then being cross-examined. Right. It’s not a matter of just handing the judge a bunch of letters or things that somebody might have said outside of court and indeed, things that witnesses said outside of court are presumptively not admissible. Right. We want people in court under oath answering questions, not just handing out the statement. So this particular case involved a circumstance in a school. Where there was a charge of assault with a weapon or using an invitation weapon that might have been a pellet gun. Where one student alleged that he was threatened with the pellet gun in the bathroom and a pellet gun poked into his side. Right. And the accused was arrested along with another student, that other student, after an hour or more of questioning by the police, eventually gave a statement to the police implicating. The other student who’s charge the accused. Right. He did it. And so forth.

Adam Stirling [00:13:56] Yeah.

Michael T. Mulligan [00:13:56] And the police eventually went and found a pellet gun. Now, flash forward to the trial. At the trial, that student, the one who provided this information to the police after an hour of questioning, claimed that he didn’t recall any of those things happening. And so what the Crown tried to do or did do at trial, he said, well, we want to use the person’s statement. Right. When they said that he saw the other boy do this with the pellet gun, we want to use that. And the in Canada there are some circumstances where an out of court statement can be used in a criminal case. There are some things which are sort of enumerated common law exceptions to that general idea that the out of court statement can’t be used.

Adam Stirling [00:14:39] mmhh.

Michael T. Mulligan [00:14:39] And we’ve spoken about some of those before. They include things like a dying declaration or a person knowing that they are just about to die and the yell out, you know, Adam shot me and then they expire. That utterance might be admissible on the basis that Why are you lying about that? You know, you’re just about to die.

Adam Stirling [00:14:56] Yeah.

Michael T. Mulligan [00:14:56] Really unlikely.

Adam Stirling [00:14:58] That would be a really awful prank.

Michael T. Mulligan [00:15:00] That’s a very, very bad prank. Don’t do that. Your final gaff. But there is a principled exception, they call it that rule that you can’t use that out of court statement. But and that isn’t one of the enumerated things like the There is also another exception called….like the person who immediately asks something like, hey, that bike stolen immediately says without any thought. No, it’s not. I just bought it from Bob down there.

Adam Stirling [00:15:28] Yeah.

Michael T. Mulligan [00:15:28] Right. That might be usable as well. But there’s also a generalized exception to that. But one of the things that is required is to show that there is some circumstantial, that first of all it’s necessary to use it, right? The statement like the person’s Dead, we can’t bring them into court, or the person claims they can’t remember what happened, happened in the bathroom. Right. That might qualify because how else do we get that evidence? But in order to use it, a. Judge also has to. Find that there are some. Circumstances surrounding. What was said that would provide some evidence that it’s dependable. And so just like in the Mr. Big example, let’s say somebody said something that nobody else would know unless you were there, right?

Adam Stirling [00:16:14] Yeah.

Michael T. Mulligan [00:16:15] You know, like whatever something is confirmed in that way, which might be some circumstantial evidence of reliability. Here, what the judge relied on, the trial judge relied on was the fact that eventually there was a search, and a pellet gun found. Now, that was the basis upon which the judge said, well, that’s some evidence of reliability. If it didn’t happen this way, how could there be a pellet gun? Right.

Adam Stirling [00:16:38] Yeah.

Michael T. Mulligan [00:16:38] But that even survived on appeal. But by the time it got to the Supreme Court of Canada, the Supreme Court of Canada said that’s not really evidence that would suggest that everything this person is saying about what happened in the bathroom is reliable. Right. Because, after all, there could still be a pellet gun, even if what happened in the bathroom was nothing like what that person claimed to the police happened. Bearing in mind, of course, one of the issues with the police was like, well, who was doing this? You or the other guy, right?

Adam Stirling [00:17:07] Yeah.

Michael T. Mulligan [00:17:07] The theory was this person Was involved with it. And so somebody in that circumstance would have all kinds of motivation to, for example, lie about what happened, to try to, you know, minimize things for themself. It wasn’t me. It was Bob with the pellet gun.

Adam Stirling [00:17:21] Yeah.

Michael T. Mulligan [00:17:23] You know, I was just standing there. I was telling him to stop. And so the fact that you found the pellet gun, well, I guess is sort of consistent with something having gone on, it’s not enough to confirm what the person saying is true. It’s not like to hold back evidence or dig under the tree or something else, which would necessarily mean that the whole version that’s being given is accurate. And so. The Supreme Court of Canada here disagreed both with what the trial judge found and what the Court of Appeals found and said that in order to use this sort of a statement at trial, it’s necessary that there be evidence which would provide some circumstantial reason to conclude that it’s true and just something. In the statement which might, may match up with some physical thing is not that. Now, the other thing that’s important to know about all of this, and this goes to a Common misunderstanding when I’m dealing with people involved with criminal Cases is often Times people involved with the criminal justice system because, of course, when they’re dealing with police, they’re concerned about getting. Statements and writing police reports and doing all of these sorts of things.

Adam Stirling [00:18:41] Yeah.

Michael T. Mulligan [00:18:41] Oftentimes people think, well, that’s really what the judge is going to look at. And so people often. Have a misunderstanding of the import of those things, thinking, it’s that statement that’s going to somehow count. And people also have a mistaken belief that, for example, a person could revoke, you know, revoke their statement, or withdraw it, or do something like that, when that’s. Not the basis upon which a criminal case would operate at all. The criminal case will operate based on that person showing up as a witness, swearing to tell the truth and testifying in court. And you can see things Like a statement that the person gave to the police. Being referred to in court.

Adam Stirling [00:19:23] Yeah.

Michael T. Mulligan [00:19:23] But it’s usually only being referred to in court If, for example, what the person claims happened is not consistent with what they told the police happened.

Adam Stirling [00:19:31] I see.

Michael T. Mulligan [00:19:32] You know, like if a teller at the bank robbery says, you know, yes, I know the bank robber was six-foot two blonde hair and blue eyes and shows up a year later in court and says, yes, that’s a bank robber over there. He’s 5’5 with brown hair and brown eyes.

Adam Stirling [00:19:46] Yes, I see.

Michael T. Mulligan [00:19:47] The cross-examination. Look, you gave a statement to the police. Yes. You weren’t lying to them? No. You know this is your statement? Yes. Looks like a page two here you say that. The bank robber was six foot two with blonde hair and blue eyes, right? Correct. Yes, that’s right. So not this man over here. No, it’s not that guy. So you can see in court statements being used and they are relevant in criminal cases because they tell people, you know, what’s the witness likely to say, but they’re not themselves evidence. And so this case makes that clear and also makes Clear that when you have some witness, some witness show up, who, you know, would have a motivation to lie as this person did, and claims, no, I have no memory of what I said previously to the police. You can’t just fall back and say, well, let me just slide in a copy of what was said back then. Unless there’s some other thing you can point to conclude. Yes. This is why we can rely upon that previous statement, and more is required than something in your statement seems to accord with some piece of physical evidence. That’s just not enough to accomplish that. That’s the latest from the Supreme Court of Canada. The gun in the bathroom and why it is what said in court is what matters, not what was written down in a statement to the police.

Adam Stirling [00:21:05] Fascinating. Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday here on CFAX 1070 I learn new things every week and I’m sure many members of our audience do as well. Michael, pleasure as always.

Michael T. Mulligan [00:21:17] Thank you so much. Always great to be here.

Adam Stirling [00:21:19] All right. Take care. Talk to you next week.

Automatically Transcribed on October 4, 2024 – MULLIGAN DEFENCE LAWYERS