This week on Legally Speaking with Michael Mulligan:
The BC Court of Appeal, BC Supreme Court, and BC Provincial Court issued a joint release advising that all judges and judicial officers, in all the courts in BC, have received two doses of vaccine for COVID-19.
The courts further advised that, as of November 22, all court staff and all contractors accessing the secure (non-public) areas of courthouses thought BC will all be required to have received two doses of COVID-19 vaccine.
Because attendance at court is often not voluntary it is particularly important the judges and court staff be vaccinated to reduce the risk that members of the public will not be infected with COVID-19 when attending court.
In addition, a judge presiding over a 25-day murder trial decided to make it a requirement that prospective jurors be vaccinated to be eligible to serve to reduce the chance of a mistrial being caused by a COVID-19 outbreak.
Also, on the show, a new program organized by Pro Bono BC: free family law mediation. Senior family law lawyers, and other family law mediators, are providing free assistance for families of up to 3 people with an annual income of less than $65,000 and for families of 4 or more with an annual income of less than $85,000.
Other pro-bono services, in Victoria, are provided at the Law Centre. This program is provided by the University of Victoria and is located at the courthouse. Law students provide a range of services for people who are ineligible for legal aid with supervision from experienced instructors and lawyers in the community.
Finally, several first nations people who were convicted of criminal contempt for blocking roads to protest the construction of the Trans Mountain Pipeline were denied funding for their conviction appeal.
The BC Court of Appeal judge hearing the application concluded that the conviction appeal, premised on poorly defined claims that the appellants were following first nations law, had little merit.
Despite evidence that there was funding available from a go-fund-me campaign, the appellants were successful in having counsel appointed to argue their sentence appeal.
The Criminal Code has provisions that require judges to consider sentencing options other than jail, with special consideration for first nations offenders.
An automated transcript of the show:
Legally Speaking Oct 14, 2021
Adam Stirling [00:00:00] It’s time for Legally Speaking on CFAX 1070, joined, as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, who is has a better participation and attendance rate on Thursdays than I do these days. Michael, good morning. How are you?
Michael T. Mulligan [00:00:15] I’m doing great. Always good to be here.
Adam Stirling [00:00:17] Yeah, I was. I was ill last week for a couple of days, so I unfortunately missed things. But thank you as always for being here and being reliable.
Michael T. Mulligan [00:00:25] It’s always great to be back together and good news that you didn’t turn out to have COVID. So, it was it was great.
Adam Stirling [00:00:31] Absolutely! No, it was. It was a little scary for a little bit. I wanted to ask you about COVID and vaccination and whatnot because we’ve had some open line callers and I’m getting some emails and some text messages of people asking about the legality of workplaces requiring immunization as a condition of continued employment. In absence of that immunization being confirmed, a person either being put on unpaid leave or perhaps some other remedy being employed. I always hear, oh they’ll get sued, the employer is violating their rights, it’ll go to court. I said on the show yesterday, I said, well, the Supreme Court of Canada and all nine justices are double vaccinated. One is required to be immunized to be in the court as a physical space. Now I know I don’t think you can actually, you know, argue that in a legal sense. But as an ordinary person, I would expect the customs and practices adopted by Canada’s courts to be, if nothing else, in accordance with Canada’s laws and regulations, including, of course, the charter. So, I look at the court doing that, and I assume that they would have checked that it would be legal or not legal before engaging in that activity. What is the story with all that?
Michael T. Mulligan [00:01:36] Well, first of all, you’re quite right in terms of through the special nature of courthouses in that a lot of people going there aren’t there because they want to be there, right?
Adam Stirling [00:01:45] Yes.
Michael T. Mulligan [00:01:45] They’re there because they have been charged with an offence. So, you just have to show up in court or you’ve been summoned for jury duty, or you’ve been called as a witness. None of it is voluntary. You can’t just say, “Hey, I choose to stay out of the busy bar or something”. It’s just not how it works. And so, it’s particularly important that the courthouses continue their effort to be particularly vigilant, and they have been doing a number of things like having sheriffs screen everyone coming in to make sure they don’t have symptoms or things of that sort and mask wearing is required. But there was a very interesting announcement that just came out signed by the Chief Justice of B.C. Court of Appeal, the Chief Justice of the B.C. Supreme Court, and the chief judge of the B.C. Provincial Court. Essentially all of the courts together, and the announcement was that all of the judges and all of the other judicial officials in all of the courts in the province have all received their full vaccination for COVID 19. And so that’s an interesting announcement to every judge of the province, all levels of court, all of them have been vaccinated.
Adam Stirling [00:02:54] Wow.
Michael T. Mulligan [00:02:54] So you’re not going to get infected by the person who who’s there hearing your case or at least a lower likelihood of that. Of course, nothing’s perfect,.
Adam Stirling [00:03:01] mm -hmm.
Michael T. Mulligan [00:03:01] But I’ll do what we can do.
Adam Stirling [00:03:02] Yes.
Michael T. Mulligan [00:03:03] And as well, all the judges announced the administrative judges announced that as of November 22nd, and that’s in keeping with the provincial requirement for regular provincial employees, that all judicial, all court staff and all service providers that will have any access to the non-public areas in courthouses will all be required to have received their full series of COVID 19 vaccinations, also by November 22nd. And so, the court is imposed not only have all of the judicial officials already been vaccinated, they are making that mandatory for all of the people who would work in the courthouse. You know, that would be everything from you would have judges, secretaries or other service providers or other people that would be working in the secure facilities at courthouses, or all of them will need to be vaccinated by November 22nd. In keeping with what has been required of the B.C. Public Service. And so that will mean as well, things like court registry staff will all be vaccinated. So, if you’re going there to file something, the person you’re dealing with is going to be vaccinated. Sheriffs will be vaccinated, thank goodness.
Adam Stirling [00:04:15] Yes.
Michael T. Mulligan [00:04:15] Some of the sheriffs early on were a number of them wound up getting infected because they were, of course, in close quarters dealing with people who were, for example, in custody in the courthouse.
Adam Stirling [00:04:27] Yes.
Michael T. Mulligan [00:04:28] And so there were more than one outbreak on Vancouver Island where that affected sheriffs I should say as well. They’ve been putting in some pretty careful procedures at the jails. Again, trying to continue to keep people safe there because if there ever was an example of an involuntary place, you might get in close quarters. It’s jail.
Adam Stirling [00:04:49] Yes.
Michael T. Mulligan [00:04:50] And so I suppose a few things we can draw from this. First of all, it seems to be if you’re looking for some appeal to authority in terms of vaccination. All of the judges in the province, every one of them has been double vaccinated and they are imposing the same requirement on staff in areas they are directly responsible for that the provincial government is imposing on B.C. Public Servants. And so, it’s a crystal clear, resounding message from all of the levels of court in British Columbia about the importance of vaccination.
Adam Stirling [00:05:25] Indeed. Thank you for that. What else is on our agenda for today?
Michael T. Mulligan [00:05:30] Well, a related topic from court and this has been an interesting one is what do you do about prospective jurors in jury trials.
Adam Stirling [00:05:39] Oh yeah.
Michael T. Mulligan [00:05:40] We’re now doing our best to try to get serious jury trials running again. They put in plastic barriers they’ve been using two courtrooms in some circumstances so that the jurors can deliberate and be a little spaced out. And so one of the issues that’s arisen on more than one occasion with the differing results at different times has been, should you require prospective jurors to be vaccinated because even though you might put in plastic barriers and try to separate people a little bit, of course, this would be another example of having you be potentially required and doing your civic duty to serve on a jury, put in reasonably close and long term contact with 11 other strangers.
Adam Stirling [00:06:22] Yes.
Michael T. Mulligan [00:06:23] And so there was a recent decision out of Vancouver. It was a fact pattern was it was a jury selection for a murder trial, which is expected to last 25 days in court so an extended time period. And one of the judge’s considerations was that the judge wanted to, in addition to keeping people safe in a general way, wanted to avoid the possibility of a mistrial partway through the process if there was a COVID 19 outbreak amongst jurors or court participants. You can imagine how that would completely derail the serious trial.
Adam Stirling [00:06:59] Yes.
Michael T. Mulligan [00:07:00] And so taking that into consideration, the judge directed that there be a requirement that all people who might serve on the jury receive two doses of vaccine. People would be asked to assure, ensure that they’d be had been vaccinated, and anyone who didn’t confirm that or wasn’t prepared to answer would not be eligible to serve on the jury. So, the judge wasn’t ordering the 12 people to go down and get vaccinated if they weren’t vaccinated. But it would put a requirement on people, they would ask prospective jurors if they had been vaccinated and if they didn’t confirm they were or wouldn’t answer that question, they wouldn’t be able to serve on at least that jury. They might wind up on maybe a case that was short or something of that sort. So that’s the interesting thing. Not all cases of judges have come to the same conclusion.
Adam Stirling [00:07:49] Yes.
Michael T. Mulligan [00:07:50] I think probably taking into account, you know, local rates or you know how long the case was going to be or those kinds of things. But certainly, in a case like this where it was a longer period of time, the judge concluded that in the current circumstance, that was an appropriate requirement.
Adam Stirling [00:08:06] Very interesting watching how the courts deal with this.
Michael T. Mulligan [00:08:10] It is, it is interesting. And you know, as you said, it’s, I think, quite appropriately they be putting in an extra layer of caution because people just don’t have a choice. You can’t just say, sorry, you know, I’ve got a medical condition. I really don’t want to be there and particularly susceptible. It’s you better show up, you know, the police are going to come and arrest you and bring you to the courthouse. And so, in that environment, right, I think we all have to be just a little extra diligent to make sure, you know, we’re not putting people at additional risk by the judicial officials or court clerk or sheriff or somebody, you know, being more likely to infect somebody. So, I think it’s really good to see that they’re continuing to put all of these efforts into making sure people are safe when they go to the courthouse.
Adam Stirling [00:08:55] I find it as an ordinary person, very reassuring that I can look to the courts and I can see that, that reasoned judgement prevail with respect to vaccination. Because unfortunately, and maybe it’s not so much the case here in Canada, but in some other jurisdictions in the world. The topic of immunization has been presented is much more of a live, almost political, there is no true answer, both sides are right, both sides are wrong issue and that simply is not the case, according to medical science. It reassures me to see the judiciary coming down on the side of medical science.
Michael T. Mulligan [00:09:27] I think that’s right. And also, the important thing to remember is that it’s one of those things, which isn’t simply something that would impact on the person who makes a decision. You’re having an impact on other people in the community. And I think that’s really what’s being recognized here by the court and others, right? It’s not sort of, it’s not an announcement saying, you know, hey, we’re just happy to tell you we’ve all made ourselves safe up here at the courthouse. Really, the purpose of this is to tell people, we’re doing everything we can to make sure that you are going to be. You are safe when you come here, because by getting vaccinated, it reduces, of course, the risk that you’re going to pass along the virus to others. And so that’s really what the court’s doing here very well.
Adam Stirling [00:10:12] Michael Mulligan with Legally Speaking on CFAX 1070 sounds a good spot for our first break. We’ll be right back.
[00:10:24] COMMERCIAL. It’s Adam Sterling on CFAX 1070.
Adam Stirling [00:10:27] Back to, Legally Speaking, Michael Mulligan for Mulligan Defence Lawyers, we move on to the next topic, Michael. I just I want to note that the inference I drew from looking at the court as a model as to whether or not all private businesses had a right to impose a vaccination requirement as a condition of employment, I suppose the compulsory nature of attending court, which is what you’ve mentioned, would not necessarily hold for all private businesses. So, I don’t quite have an airtight argument in this. Is there a common understanding the legal community with respect to the legality of vaccination requirements for employees at private businesses?
Michael T. Mulligan [00:11:03] It’s pretty hard to get a common understanding in the legal community for anything.
Adam Stirling [00:11:07] Fair enough.
Michael T. Mulligan [00:11:08] Other than, perhaps, the Earth is round, but I suppose it would say you’re going to be in pretty solid company if you were making it a requirement that employees be vaccinated. When you see that the provincial government is requiring that of all of its employees and the courts are requiring it of all of the employees who are working at courthouses so well, there may be some distinguishing points to be made about those different entities. You are certainly going to be in pretty good company if you were to develop a similar policy, I think, for the private business.
Adam Stirling [00:11:43] Fair enough. Our next topic, you and I have talked about the importance of access to justice any number of times in the past, and I commend you and other members of the legal profession for doing everything possible to make the justice system more available to those who need it most. We’ve talked about the very sensitive nature of family law in the past. That means family law practitioners by extension, do not have easy jobs dealing with these matters that can have profound implications on the personal lives of people involved in litigation. What are we seeing here in terms of volunteering opportunities?
Michael T. Mulligan [00:12:16] Yeah, this is, I think, really good to see. I mean, the legal aid system in British Columbia, particularly as it related to family law, was really dramatically cut a number of years ago. And so, people are often, I think, shocked when they realize that there just isn’t the kind of help there they might need if they wind up in a serious family law dispute. And so, people should be aware of it when the people do know about this. In B.C., we have an organization called Access Pro Bono that helps organize lawyers to do volunteer work for people who can’t afford to hire a lawyer. And they’ve just announced a new program they have there. But I think may be of interest to people who are going through family law challenges, and that program is a program that is providing now free mediation services, which would be usually provided by like senior family lawyers or even sometimes retired family lawyers, that would be a common profile. And the services will be available without charge to people for families of one to three who make less than $60,000 a year, or families with four or more members who be collectively less than $84,000 a year. And the services will include a free mediator who would conduct a mediation that usually take somewhere between two and four hours and the provision of independent legal advice to each party before and after the mediation, so that they make sure that they all of their legal interests have been considered. And the idea there would be to try and mediate family law disputes, which in some cases can turn out to be pretty intractable and very expensive propositions for people.
Adam Stirling [00:14:05] Yes.
Michael T. Mulligan [00:14:06] And so I think everyone should be aware of that. If you can, if you Google, Access Pro Bono, you’d be able to look at the various services they provide, including this new one. So, I think that’s worth knowing about. And I also thought it was worth mentioning at the same time in Victoria, we are very fortunate to have a program which isn’t available in anywhere else in the province, which is the Law Centre clinical program.
Adam Stirling [00:14:31] Mm-Hmm.
Michael T. Mulligan [00:14:32] And that’s a program which is run by the University of Victoria, and it’s run actually out of the courthouse downtown where the land registry used to be. And the program operates with a team of law students each term, who were supervised by staff lawyers and as well have lawyers in the community that participate in the program.
Adam Stirling [00:14:54] Mm-Hmm.
Michael T. Mulligan [00:14:54] And that program provides legal assistance to people who are, would be financially eligible for legal aid so they can’t afford to hire a lawyer. But their problem isn’t covered by legal aid any longer. And so, it will help people with their criminal cases where they are not facing a likelihood of going to jail. They would get no legal aid assistance, no matter how poor a person might be. They would help with civil disputes, family issues. And so, I think that is a really important resource people should be aware of are now back operating with protective measures in place in person. So, if somebody needed to arrange a meeting, I think they’re trying to do things remotely where they can, but the students are now physically back at the courthouse. And if somebody is looking for help with that, their website is: thelawcentre.ca. And so you could Google that or look that up if you were needing legal help in Victoria and we’re having a unable to afford it and couldn’t get any assistance from legal aid, people should be aware that there’s a an option there that may be able to help but a really good program.
Adam Stirling [00:16:01] The Law Centre, all one word, dot ca. Fabulous resource. Thank you so much, Michael. You and I have discussed the phenomenon and it seems to be increasing, at least from my point of view, as a as an observer of political discourse of alleged contenders and others who defy the orders of courts in the furtherance of environmental objectives, often basically going through the process and simply refusing to obey the courts. And you’ve educated us in the past with respect to how courts do things. They’re not going to drop the hammer on anybody right away, but they will ensure, eventually, that court orders are followed with increasing levels of sanctions or other penalties and whatnot until they get compliance. I see once again the Trans Mountain Pipeline on the agenda for today. What’s going on?
Michael T. Mulligan [00:16:49] Yes, indeed. And so, this was an appeal by a group of five people who were convicted of criminal contempt arising from protest activity related to that pipeline. And in particular, I think the individuals on this appeal were people who were blocking access to the marine terminal in Vancouver in an effort to try to draw attention to their complaints about the pipeline.
Adam Stirling [00:17:18] hmm.
Michael T. Mulligan [00:17:18] And this group of five people was tried for criminal contempt, and they were convicted. The judge hearing the case concluded that all of the essential elements of criminal contempt had been proven that they disobeyed the injunction in a public way, with knowledge that their disobedience would tend to diminish the authority of the court. And so, they were all five of them convicted, and they were all sentenced to various lengths of time in prison. They were periods of time, 28 days for some of them, I think slightly longer for others. And so, they were sentenced to jail, and this group of five individuals has appealed both their conviction and the sentence that they imposed that were imposed on them. And the unique elements of the appeal include the fact that all five individuals are Indigenous and their arguments both on the conviction appeal and the sentence appeal, relate to the fact that they are all Indigenous people.
Adam Stirling [00:18:23] Hmm.
Michael T. Mulligan [00:18:24] And the particular decision made by the Court of Appeal here, just recently, was a decision about whether they should receive funding to pay for lawyers to help them with their appeal. And one of the unique things about the Criminal Code as it relates to appeals, as opposed to trials, is that for a trial, a judge doesn’t have any direct authority to order a lawyer appointed to help somebody, even if they’re impoverished and can’t afford a lawyer and really need one. There is some constitutional authority in some circumstances to stay the proceedings and say the Crown can’t proceed unless the government provides a lawyer to ensure the trial’s fair. But that’s pushing out a bit of a rope, and it’s got a high burden.
Adam Stirling [00:19:08] Yeah.
Michael T. Mulligan [00:19:09] Whereas in the Court of Appeal, there’s a special section at Section 684 that allows the Court of Appeal to appoint a lawyer to assist somebody with their arguments. And there’s a test for that. ordinarily, first of all, you’d have to, the judge would have to conclude that the person didn’t have sufficient means to obtain legal assistance on their own. And then they must conclude that appointing a lawyer would be in the interests of justice; and the interests of justice test would include a number of things, including: the points to be argued, complexity of the case, the general importance of it, the nature of the penalties and the merits of the appeal. And so, the judge of the Court of Appeal is tasked with deciding whether to grant this application for these five individuals and that was made. We’ve talked, you’ve talked about the issue of Go Fund Me pages.
Adam Stirling [00:20:04] Yes, yes.
Michael T. Mulligan [00:20:05] That’s factored into it because in this particular case, there were to Go Fund Me accounts which had raised money. One had raised $14,750 to support these people while they were in jail, and they had received that money equally. And there was a second account of $22,318 to fund the appeals and so that played into the judge’s analysis of whether they were incapable of retaining counsel.
Adam Stirling [00:20:30] Interesting.
Michael T. Mulligan [00:20:32] But ultimately, the judge found that on the conviction appeal, they should not have counsel appointed for them under this section of the Criminal Code on an analysis of the merits of the appeal. The judge concluded that the essential argument that they were making there was that the people who are blocking the road were following indigenous law and that that authorized them to block the road. But the Court of Appeal judge pointed out that there was really no evidentiary basis for that. Other than sort of generally alluding to a concept of “natural law” and alleging that direction from Indigenous elders said that they should stand up “in these matters stand for Mother Earth” didn’t amount to a sufficient basis to make an argument that there is an Indigenous law permitting that even if that is a concept, or even if that would play into the contempt analysis
Adam Stirling [00:21:30] It comes up over and over again was Chief Justice McEachern B.C. Supreme Court, trial judge at Delgamuukw case pointed out that there’s a difference between a body of law and what are just customs and practices that lack the uniformity or the predictability to be considered law. So, I know that’s a live issue to some degree.
Michael T. Mulligan [00:21:43] Yes, and the court of Appeal, Judge pointed out. Look, if that’s going to be an argument, there needs to be some evidentiary basis for the argument, not just a general allusion to, I’m following natural law.
Adam Stirling [00:21:53] ahh.
Michael T. Mulligan [00:21:53] what do you say is the law? Where do you see that comes from? What do you see the law is? Now, however, despite the fact that the judge found that that argument didn’t have much merit and the judge did find, however, that the argument about the sentence appeal had more merit because the Criminal Code has special provisions that require judges to take into account the fact that a person is Indigenous when determining whether a jail sentence would be appropriate or not. And we have a case from the Supreme Court of Canada, Gladue talking about that as well.
Adam Stirling [00:22:28] Oh yeah.
Michael T. Mulligan [00:22:28] And so the Court of Appeal judge has ordered that counsel be appointed not for the conviction appeal, but on the sentence appeal, even though two of these people have served their complete sentence already. I think another of them got out on bail after serving a part of it. But the judge concluded, that’s an important topic which should be considered by the Court of Appeal. That is to say whether a trial judge in sentencing an Indigenous person to prison for criminal contempt should be taking into account that person’s Indigenous background when making that decision. So more to come.
Adam Stirling [00:23:03] Michael Mulligan appreciate it. As always, the benefit of your knowledge and insight. Thank you.
Michael T. Mulligan [00:23:07] Always a pleasure. Stay safe.
Automatically Transcribed on October 21, 2021 – MULLIGAN DEFENCE LAWYERS