An illegal arrest of a protester, a judge shooting himself in a courtroom, and a vacation rental injunction

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070.

A new Supreme Court of Canada case, Fleming v. Ontario, concluded that the police did not have the authority to arrest a protester who was carrying a Canadian flag and walking down the road, in order to avert a possible, future, disruption. The police officers and the province of Ontario claimed that the police were authorized to arrest the man pursuant to the ancillary powers doctrine to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace.” The Supreme Court disagreed found that the arrest was not authorized by law. The wrongly arrested protester was awarded $139,711.90 plus court costs.

Also discussed, was a recent case from Thailand in which a judge acquitted five Muslim men of murder and said “You need clear and credible evidence to punish someone. So, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crimes, they might have done so, but the judicial process needs to be transparent and credible… punishing the wrong people makes them scapegoats.” The judge posted a statement on Facebook indicating that he had been pressured to find the men guilty despite a lack of evidence.

The judge then recited a legal oath, pulled out a pistol and shot himself in the chest. He survived and was rushed to the hospital where he is recovering.

Finally, a BC Supreme Court decision dealing with short term vacation rental, and a bylaw prohibiting them is discussed. The Thompson-Nicola Regional District sought an injunction to prohibit two cabins from being rented for short time periods. The bylaw the regional district relied on was passed in 2012. The cabins had been rented, for short time periods, since 2008. The cabin owners claimed that the bylaws prior to 2012 permitted short term rentals.

If the earlier bylaw permitted short term rentals, because then rentals have been going on continuously, since 2008, this would have been a lawful nonconforming use pursuant to section 528 (1) of the Local Government Act. This doctrine applies as long as the non-conforming use was continuous, with no break for more than six months.

While the judge agreed that the short-term rentals have been continuous, since 2008, and would, therefore, have been a lawful nonconforming use, the bylaw in place in 2008 also didn’t permit short term rentals and, accordingly, that regional district obtained the injunction they were asking for.


Legally Speaking is live on CFAX 1070 Thursdays at 10:30 am.


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Legally Speaking Oct 10, 2019

Adam Stirling [00:00:00] It’s Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. I’m so used to saying the second half of our second hour that I almost said it again today. But that’s not what time it actually is. If I could read the clock everything would be perfect. Michael Mulligan thanks for coming in the studio as always. How are you doing?

Michael T. Mulligan [00:00:13] I’m doing great. Good to be here. You know you’re going to be careful in the legal world you wait half an hour in some other cases going to spring up and everything’s all going to change, right.

Adam Stirling [00:00:20] Exactly some interesting ones this week including the Supreme Court of Canada making a decision regarding when police can and cannot arrest someone who is acting lawfully just because they think it might stop others from breaching the peace. Is this about protesting?

Michael T. Mulligan [00:00:36] It is and it’s, I think, a very both interesting and potentially important case defining what authority the police have in these protests to arrest people. The case is called Fleming and it comes out of Ontario. The essential fact pattern, it dates back to 2009, and what was going on is that there was an Aboriginal group who was occupying some land and some form of protest there. And Mr. Fleming was coming out in a counter-protest. He was carrying a Canadian flag on a wooden pole and was walking down the street up towards where the land had been occupied. And in the past there had apparently been conflict between the Aboriginal group that was occupying this land and the counter-protesters, I suppose with other Canadian flags. So along Mr. Fleming goes and the police observe that the people occupying the land are walking towards him, they’re 10 or 20 feet away, and the police decide that they are going to avoid a conflict between potentially, a potential conflict, between Mr. Fleming and the other protesters by arresting Mr. Fleming. So they go Mr. Fleming you’re under arrest, they order him to drop his flag, he refuses to drop the Canadian flag. And eventually the officers force him down to the ground take the flag handcuff him, take him off to jail and yet because it’s in Ontario, unlike in B.C., where the Crown would have to approve a criminal charge, in Ontario the police just charge you and the Crown come along you look at it later. So the police then charge him with obstructing a peace officer, I suppose for not dropping his flag and so on. Eventually, after a bunch of a dozen court appearances Crown takes over the prosecution and stays the criminal case. But that’s not the end of it. Mr. Fleming doesn’t just say ‘well that was lucky, I didn’t get convicted of obstruction’. He sues, the province of Ontario and the police, and he sues him for a bunch of things; battery, unlawfully arresting him, breaching his charter rights, and so off the thing goes to trial. Now, most people aren’t doing that because of the cost of pursuing that and the time involved. But go onMr. Fleming, he succeeds, and he winds up with an order from the judge of $139,711.90 in general damages, plus a bunch of costs, about double that amount eventually and cost another $150,000 and…

Adam Stirling [00:03:05] Special damages. Talk about that recently.

Michael T. Mulligan [00:03:06] That’s right. So he’s got his award. But the province of Ontario doesn’t like that and they appeal it off to the Ontario Court of Appeal. The Ontario Court of Appeal overturns the trial judge. But Mr. Fleming isn’t done. He’s a dedicated protester and so off to the Supreme Court of Canada where he wins. And so we have this brand new case from the Supreme Court of Canada that provides some important insight into what powers the police have to arrest people. And I should say there are reasonably broad powers in the criminal code that allow the police specifically to arrest people; like a police officer has reasonable grounds to believe that somebody has committed a criminal offence, they can arrest them. They’re even they’re permitted to even arrest somebody to prevent somebody from committing an offence, right, if they think you know hey that guy’s got a you know rock he’s running off towards a window it looks like you know to throw it, he hasn’t thrown it yet, they don’t have to wait for the window to get broken. They could arrest the person and prevent you know the mischief.

Adam Stirling [00:04:08] hmm.

Michael T. Mulligan [00:04:08] But here the important thing was that no one believed, the police officers didn’t believe that Mr. Fleming was doing or going to do anything unlawful. He was just there with his Canadian flag wanting to protest. And their purpose in arresting him was to prevent sort of a breach of the peace, but not by him.

Adam Stirling [00:04:28] Interesting. I can see the, I can see how it all comes together. It’s fascinating.

Michael T. Mulligan [00:04:31] So you know I don’t think it’s some bad intent. The police said that no doubt they just didn’t want somebody getting hit over the head with a Canadian flag or whatever the other group was carrying. But the argument they made is this concept of sort of ancillary powers that are necessary. … it’s called the ancillary powers doctrine. The concept there is that if the police have the authority to do something like, preserve the peace, right. The police argued that well we must have, as a function of that, the power to do various things, to carry out that goal/ objective duty. However, you’d want to phrase it. And so they argued that that ancillary power doctrine went so far as to empower them to arrest somebody in a prophylactic way to prevent a disruptive act, even if they hadn’t done anything unlawful and they didn’t think they were going to do anything in lawful. Well, the Supreme Court of Canada disagreed, and they specified why those sort of powers have to be really narrowly construed. Because if you interpret those sort of broad ancillary powers, that doctrine in a really wide way, it could very easily and quickly lead to all sorts of unauthorized police action. You know if you just say, look anytime they think they can do something that might achieve that broad goal of preventing the breach of the peace, you could just go and arrest anyone. You could be sweeping up by groups of protesters and doing all sorts of things, that are not really in accordance with our constitutional and legal values. So the Supreme Court of Canada made clear that’s not permissible. They restored the trial judge’s substantial award. They awarded very substantial costs to Mr. Fleming and one of the other points the court made, which I think is a good and practical one, is that these kind of claims are difficult to pursue. Oftentimes, issues about things like you know were the police allowed to arrest you would get litigated in the course of that person being charged with a crime, like for example here, had the original charge Mr. Fleming was facing of obstructing the police. Had that gone forward to trial, you can well imagine that that issue would get litigated in the course of that proceeding. He would say well hold on. You know you were breaching my constitutional rights to you or you had no authority to do that. Therefore it wasn’t obstructing you. But when things aren’t proceeded with in that way, it’s their rare and determined person who says well I’m going to go off to civil court and I’m going to pursue you. Most people aren’t doing that because of the large cost and time commitment.

Adam Stirling [00:07:17] Yes.

Michael T. Mulligan [00:07:17] I mean Mr. Fleming’s been at this now for a decade.

Adam Stirling [00:07:19] Absolutely, this was 2009 this event took place.

Michael T. Mulligan [00:07:22] Right. So that’s a major commitment. And one of the other points the Supreme Court of Canada made is that it’s important that these powers be narrowly construed and that there be some clarity around it. Lest we require people to engage in this kind of litigation in order to make that point or stop that sort of behaviour, because otherwise, you would have potentially things like the police just sweeping up a bunch of people at the protest taking their Canadian flags and then just saying well we’re not charging you, so what are you going to do about it. Right. And most people say, well I guess that’s fortunate enough to go to court. I don’t really want to go off and hire a lawyer and pursue this thing for the next decade. So here we are. It’s an important case. I think both in terms of principle and in terms of providing some reasonably clear direction to the police in terms of what they are permitted to do. And you know we had this not long ago here in Victoria. Right, we had that group of people..

Adam Stirling [00:08:25] Ya how does that work and they blocked the bridge. How did police know when, cause I can’t stand in the middle of the highway, and say I’m having Adam day nobody can pass. The cops are going to drag me off sooner or later, because I’m… I but if I’m a group of people saying we need to do this climate thing I’m allowed to stay there. How does that work? What’s the distinction?

Michael T. Mulligan [00:08:41] Well, I mean largely those decisions are decisions of judgment and restraint on the part of the police.

Adam Stirling [00:08:48] mmhmm.

Michael T. Mulligan [00:08:48] I think they would pretty clearly have the lawful authority to show up and if you had somebody who’s you know, impeding traffic in the road, you’re not going to have too much trouble finding a applicable section of the motor vehicle act or some bylaw you’re going to be breaching, and to show up and start arresting people and putting them in handcuffs and dragging them off to jail. And the decision, not to do that, isn’t so much the function of some particular legal obligation to require a bunch of people to block everyone’s effort to get home at the end of the day on the bridge. But it’s really an exercise of discretion and judgment on the part of the police, because of course some of those protests are designed to antagonize the police in hopes of producing some conflict to get attention. Right. That’s really what’s going on.

Adam Stirling [00:09:34] Ya.

Michael T. Mulligan [00:09:35] And so.

Adam Stirling [00:09:35] Or I, I think so at least,.

Michael T. Mulligan [00:09:36] yeah.

Adam Stirling [00:09:36] But yeah.

Michael T. Mulligan [00:09:37] So it’s probably an exercise of good discretion not to immediately start with that and allow people a few minutes to sort of disperse on their own. All of that is good and sensible. But this case would for example make clear that the police couldn’t say look you know the motorists trying to get home look pretty agitated at this group of people blocking the bridge. We’re going to go and start arresting the motorists because we don’t want there being some conflict between the motorists and the bridge blockers, right. That’s clearly now not on. So like so many things in life. Well, there is ultimately some legal answer that’s going to be produced, you know a number of years down the road. So many of these things just depend on people exercising good discretion and judgment. And there’s no legal decision that’s going to force that to happen right. It requires people to act in a sensible way. And even though you might have the legal authority to go in immediately started handcuffing people on the bridge, waiting a few minutes is probably sensible. But there’s no other legal authority to do that. You’re right to protest doesn’t include the right to just go and block the bridge and progress of people home at the end of the day.

Adam Stirling [00:10:48] Let’s take a quick break. Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers continues after this.

Commercial [00:10:53] COMMERCIAL BREAK.

Commercial [00:14:33] Keeping you informed Adam Sterling on CFAX 1070.

Adam Stirling [00:14:43] We talk a lot about candidates courts and how they govern our day to day affairs. Thailand the setting of our next story five Muslim men on trial for murder. Heavy pressure for a conviction. What happened Michael Mulligan?

Michael T. Mulligan [00:14:56] You’re certainly right. This case I think is perhaps one of the clearest examples of why we ought to, all, be very thankful for where we live and how broadly speaking the justice system works here. This was a judge who was trying five Muslim men for murder and the judge acquitted the men and then in the courtroom pulled out a gun and shot himself in the chest and in an apparent effort to kill himself and then had, he must have recorded it earlier, he began playing a impassioned speech on Facebook that said you need clear and credible evidence to punish somebody, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crime; they might have done so, but the judicial process needs to be transparent and credible. Punishing the wrong people makes them scapegoats. And then the transmission was cut off. It would appear what was going on is the judge was being subject to pressure to convict these five men of murder, despite there not being enough evidence that they had committed the crime. And so following the acquittal the judge played that speech and then shot himself in an apparent effort to kill himself. He survived, they rushed him off to the hospital and he’s apparently recovering from his injuries. He also posted, if I cannot keep my oath of office, I’d rather die than live without honour. So that sounds like this judge in Thailand is doing a fine service, but you can…all of that gives you a pretty clear picture of what the justice system is working like in that country. And I suspect that is not dissimilar to how it operates in most places in the world. You know in Canada you would never for a moment have an actual concern that you know the dredge judge trying your case is subject to some political, or other pressure, to decide the thing one way or the other.

Adam Stirling [00:17:06] mmhm.

Michael T. Mulligan [00:17:06] But clearly that’s not the case there.

Adam Stirling [00:17:08] For anybody or anybody who knows anything about Canada’s judicial culture when compared and contrasted against other countries knows Canada’s judiciary is, fiercely independent, and jealously guards that independence against anyone who may make incursions upon it.

Michael T. Mulligan [00:17:22] Yeah. And that’s not even the case in other countries similar to Canada like in the U.S. for example you’ve got, in some states, elected judges, like if you go down to Nevada and drive around sometimes you’ll see all these signs about you know judge so-and-so running for office. There’s also an interesting on that front study that the economists did a few years ago where they looked at the length of sentence imposed by judges who were elected and the clear trend was that in the year coming up to their election, all of their sentences went way up on average, out of, I guess, fear of not winning re-election by appearing soft on crime quote unquote. So not much of a a system there. And you even see in the U.S. of course judges routinely referred to by you know who appointed them all that’s a Republican judge or that is a Democratic judge, something which would I think not play into the discourse in Canada at all and I think quite reasonably so.

Adam Stirling [00:18:19] That’s what our Senate is for. Let’s move on.

Michael T. Mulligan [00:18:23] yes.

Adam Stirling [00:18:23] Well you know I could. I mean the joke was there I went for it, but um…Well actually before we leave this case, I’m I don’t, I didn’t know they allowed judges in Thailand to carry firearms. So I guess they’re not going to pat down the judge though as he walks into the room it would be easy enough to conceal a pistol one would think yeah.

Michael T. Mulligan [00:18:39] ya, maybe that’s they’ll have to rethink the robes or something there but I don’t know that that’s the…. know the proximate cause of the problem.

Adam Stirling [00:18:47] Ya. All right. Back home a municipal government getting an injunction to stop short term rentals. That’s the cabin or cabins in the Thompson Nicola Regional District. What’s the story here?

Michael T. Mulligan [00:19:00] It is and I think it may be of some other local interest, as well of course, because we have ongoing debates about short term rentals and efforts to prohibit them. And here the issue involved whether a bylaw, that clearly prohibited the short term rental, applied with respect to two cabins in issue because the owners of the cabins argued that, hey look we’ve been renting these things out since long before this bylaw was passed. And there is a provision for, what was referred to sometimes as lawful nonconforming use, and the concept there is that you know let’s say for example a bylaw permits you to build a gas station on your property, so you build a gas station and then five years later the municipality decides no no we want no more gas stations in that area we only wish apartment buildings or something. So they changed the bylaw which would no longer permit a gas station there. That does not mean that you need to tear down your gas station and build an apartment building or nothing. Your grandfathered, would be the way people would usually describe it. And so the owners of the two cabins argued that hey look, the bylaw that was in place when we started renting out these cabins, many years ago back and I think 2008, they argued that hey that allowed us to rent out cabins short term. And so even though in 2012 you’ve passed a new bylaw that doesn’t permit it. We can continue because we’ve been doing it continuously since then. The argument the municipality made, or they need several. One of them they need though was that, hey look there was a gap and if you have something which is a nonconforming use and you stop doing it for a period of six months you can then lose that status.

Adam Stirling [00:20:55] Oh kay.

Michael T. Mulligan [00:20:55] So they argued well look they looked at the rental records for the cabins and they argued hey for one of the cabins nobody rented one of them for six months. The counter argument by the cabin owners was well you know we don’t have control over how frequently people rent them. We’ve been trying to rent them and have rented them for all of this time. The judge accepted that argument. The municip…the regional district was unsuccessful in arguing, hey you didn’t get a renter in one cabin for six months, but ultimately the cabin owners floundered because the judge concluded that the old bylaw didn’t permit it either. So you can’t get a search grandfather..

Adam Stirling [00:21:29] So their no material change, oh okay,.

Michael T. Mulligan [00:21:30] All right. Yes, it was different.

Adam Stirling [00:21:32] You grandfaher in, to what you were ever in the first place..

Michael T. Mulligan [00:21:33] Right.

Adam Stirling [00:21:33] Okay, I get it.

Michael T. Mulligan [00:21:33] They were different and there was certainly an argument available that the earlier one would have allowed it but the judge didn’t buy that. So even though, it didn’t buy the regional district’s point. So that’s relevant, I think for people as well, when there are new rules passed purporting to prohibit various things. There needs to be consideration of well was this thing previously permitted. And have you continued to use the thing in that way. Don’t let there be a gap. You know if you turned your gas station into a single family dwelling for six months and then tried to turn it back into a gas station, you’d be out of luck in the earlier example. But municipalities can’t just come along and retroactively make your existing building unlawful by changing the underlying zoning.

Adam Stirling [00:22:22] There we go. Michael Mulligan again from Mulligan Defence Lawyers. Thank you as always for your knowledge and your insight. Almost out of time, 10 seconds left. I don’t think we could do another story, but we’ll see in a week.

Michael T. Mulligan [00:22:31] That sounds great.

Adam Stirling [00:22:31] All right back to your normal time in the second half of our second hour on a Thursday. Join us for that here on CFAX 1070. All right…