Appeal Bail for Green Party Deputy Leader, Security Guard Guilty of Manslaughter and the Escheat Act

 

Prepare to be engrossed as Michael Mulligan from Mulligan Defence Lawyers dissects the intricate case of Ms. Davidson, deputy leader of the federal Green Party, whose criminal contempt conviction has stirred debate. The fine line between staunch activism and legal adherence is put to the test in our discussion of her bail pending appeal. We’ll explore whether Davidson’s bold pre-sentencing declarations will hold true as we scrutinize the nuanced balance of upholding one’s convictions vs the rule of law. This episode promises a riveting look at the intersection of law and politics, with implications that reach well beyond a single court decision.

Also, on the show, a security guard is found guilty of manslaughter after an intruder he apprehended died.

Finally, venture with us on a historic expedition through the annals of property law. We unravel a legal saga rooted in the 1920s over land ownership, escheatment, and the labyrinth of legal processes that ensue when land reverts to the Crown. The tale of two lots near Nelson, entangled in a legal odyssey involving a company’s dissolution and a forgotten land transfer, provides a stunning backdrop for our analysis. As we dissect the recent Court of Appeal decision, we examine the broader consequences for land rights and the evolution of property law that continue to resonate today. Join us for an engaging journey that is as much about legal facts as it is about the stories of those who navigate them.

 

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 May 2, 2024

 

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

Michael T. Mulligan [00:00:06] Hey, I’m doing pretty good. Always good to be here. Not at the Saanich Peninsula Hospital with cockroaches or the norovirus, so it’s always good to be here.

Adam Stirling [00:00:15] Indeed, in both of those conditions. Hopefully hold for ten days more and on into infinity. We have some interesting things on the agenda this week, including an update on the overall situation that we spoke about at Ferry Creek.

Michael T. Mulligan [00:00:29] Indeed we do. And it’s a decision. It’s a decision on bail pending appeal that I think is worth commenting on. And it’s an appeal that was filed on behalf of, Ms. Davidson, who is described as a deputy leader of the federal Green Party, who was convicted of seven instances of criminal contempt and was sentenced to a period of 60 days in jail, minus 12 days credit for pre-trial custody, along with 18 months’ probation, with 75 hours of community service. And so she was taken into custody to start serving that sentence. But was recently released. The date of the judgement was April 29th, pending a sentence appeal, which there are several interesting elements all wrapped up in that. First of all, one of the things that I noted about, was I watched a news report in, and you can now actually see recording of it, on YouTube, if you search for this person’s name and sentencing. And the interesting thing about it is in the interviews she’s giving to a reporter right outside the courthouse immediately before her sentencing, she says, I would do it again. Yes. So you have somebody here who is convicted on seven occasions and who, standing outside the courthouse prior to her sentencing, says in a recorded interview that she would commit the offences again, which is an interesting thing, of course, from the perspective of bail. Right. And so she was successful in her bail application. And the principal argument she’s making is that the sentencing judge didn’t give sufficient weight to Gladue factors claiming that she would have reduced moral culpability, as a result of her Indigenous background. Also claiming a judge should have given further weight to the strict bail conditions that she had been on for a period of time. Although I must say that doesn’t seem to have a whole lot of merit, at least that argument, read of this decision, given that she was alleged to have breached her bail during these seven prior convictions.

Adam Stirling [00:02:47] hmm.

Michael T. Mulligan [00:02:48] And she nonetheless, she was granted bail. Interestingly, she filed an affidavit indicating that she would abide by any and all terms the court imposes. Which is an interesting thing, of course, given her recorded comments immediately outside the courthouse. All of that raises some very interesting issues about things, including why is this person involved with running for office federally? Because honestly, if you somebody who takes the position that you’re just going to repeatedly breach whatever laws you don’t agree with, it’s hard to understand why you would want to spend any time participating in the making of laws. What’s the point? And I must say, I had a similar reaction to Ms. May, who was the leader of the Green Party, who is herself a lawyer who has also been convicted of criminal contempt. Not on seven occasions.

Adam Stirling [00:03:39] hmm.

Michael T. Mulligan [00:03:39] But I must say the entire performance was rather disappointing from somebody who has some interest in political office, because it just raises the question of why bother? If the approach is that people can just do whatever they think is the right thing to do if they don’t agree with the law, what’s the point of having any involvement with it at all? But that’s this person’s view.

Adam Stirling [00:04:03] hm.

Michael T. Mulligan [00:04:03] So she has been released on bail pending the hearing of the appeal, the rationale for that, I should just refer to that. One of the things that’s considered whether the issue of whether somebody should get appeal bail is whether the appeal has sufficient merit, which isn’t to say that it has to be particularly meritorious, but simply that it’s not a frivolous exercise. And here, one of the other significant considerations for the judge who granted bail was, and I should the Crown agreed that she should be released on bail and there’s no reference to her, remarks outside the courthouse about doing it again, in this decision. So perhaps they weren’t aware of what she had had to say. But one of the other central considerations on a sentence appeal that was applicable here is that it is likely to take more than 60 days to have a sentence appeal. Right. And so if you say yes, you can have your sentence appeal, but you’re going to serve your entire sentence beforehand. There’s not much point in a sentence appeal.

Adam Stirling [00:05:03] hmm.

Michael T. Mulligan [00:05:03] So that was obviously a significant consideration for the crown of the judge in terms of granting her bail. She’s been released on conditions including keep the peace and be of good behaviour. So that would involve don’t commit more crime. And also specifically that this language, if the appellant is engaged in protest or activism, it will be lawful and not include behaviour that subjectively puts the public at risk. And so there it is. She’s been released on bail pending her sentence appeal. The conditions require her, unless they want to make sure that things are moving along. Unless she has filed her required material for the sentence appeal prior to November 25th, she would have to turn herself back into custody, and otherwise she left to surrender herself into custody by 9 a.m., on the date fixed for the pronouncement of the judgement, which is a common term.

Adam Stirling [00:05:55] hmm.

Michael T. Mulligan [00:05:55] On a sentence appeal, where you might be going back to jail, they don’t want to have you out, tell you you’re going back to jail and have the person run away, and if you’re going to capture them. And so the idea is that, before the decision is released, in terms of whether there would be an appeal, whether her appeal would be successful she will need to turn herself in into custody. So that’s the case of Ms. Davidson and the Green Party. And we’ll wait and see whether she follows her conditions of release or whether she is true to what she said in her recorded interview immediately before sentencing saying she would do it again. And so we’ll, we’ll wait and see. That’s Ms. Davidson, her appeal in the Green Party.

Adam Stirling [00:06:34] A university security guard and a manslaughter conviction involving a chokehold. What happened in this case?

Michael T. Mulligan [00:06:42] Well, a tragedy, but, legally interesting one. So the fact pattern is this, the fellow who is charged as a security guard. He was a security guard working for Trinity Western University. It’s a private religious university over on the mainland, and it dates back to September of 2020, when everything was locked down you know, people couldn’t come in and out of the campus. Things were all online, that kind of thing. And there was a man observed, described as a tall man wearing black, all black, wandering through student residence halls and rummaging through rooms. And reported resulted in multiple calls to security about this person who shouldn’t have been there rummaging through property. They think he was trying to steal things. And a fellow who is a security guard. This is interesting, described the security guards, described as 51 years of age, five foot, four and half inches tall and 150lbs. He’s working. He sees this man in all black and runs after yelled at him to stop. The man takes off running. And the security guard runs after him and tackles the man, who is described as a 30-year-old, six foot three and half inches tall and 194lbs. Unfortunately, that man is also described as having schizophrenia and had been off his medication for five months.

Adam Stirling [00:07:57] hmm.

Michael T. Mulligan [00:07:57] A struggle ensues on the ground, with the 51-year-old security guard trying to get control of this man as the man is doing things, including, punching him, pulling his hair, spitting on him, trying to do all kinds of things to the security guard to get free. Eventually, the older, smaller security guard manages to get this man into a headlock, and then gets some, he’s yelling for students to call the police, to call 911 to come and get him. Another person who’s the resident director comes over and sits on the person’s leg. So they’re trying to restrain this guy who’s spitting and kicking and doing various things. And the police eventually show up. And at that point, unfortunately, the man isn’t moving. They do CPR. The man is taken to hospital, but eventually he passes away. And so the security guard is charged with manslaughter. Now, the thing with manslaughter as opposed to murder. Murder requires you to have an intention to kill somebody, essentially. Manslaughter does not. Manslaughter requires that somebody commit an unlawful act. In this case, the Crown alleged an assault. Then the unlawful act has to be objectively dangerous, and then it must cause the person’s death. And there’s a mental requirement like the for unlawful act manslaughter. There has to be some objective foreseeability of the risk of bodily harm that’s not trivial.

Adam Stirling [00:09:17] hmm.

Michael T. Mulligan [00:09:17] or transitory. But you don’t need to intend to kill somebody. And so the judge is analyzing here in her decision for the defence was essentially self-defence or defence of others. The security guard said, look, this man was dangerous. He was trying to spitting on me and kicking me and is going and breaking into residences. And I was trying to restrain him and protect myself and protect the students. And the judge found that, well, he also headbutted him, and threatened to kill him, by the way.

Adam Stirling [00:09:47] hmm.

Michael T. Mulligan [00:09:47] To say the man being arrested. And so the judge found that the initial force used tackling the man and holding him down and putting him in a headlock and having the other person sit on his legs and do all of that to stop him as he was doing all those things, headbutting and trying to kick him and threatening him with spitting on him and doing all these things was lawful. But the judge found that eventually the man stopped moving. And the judge found at that point, the force used by the security guard was not reasonable in continuing to hold him in a headlock. And so even though the initial force was lawful and reasonable, the judge, judge’s analysis was that, continuing to hold him when he stopped trying to do things like, you know, kick him or head bottom or spit on him. And when he stopped thrashing that the security guard should have stopped the headlock and didn’t.

Adam Stirling [00:10:43] hmm.

Michael T. Mulligan [00:10:43] And so on that basis, found that an assault had occurred.

Adam Stirling [00:10:47] hmm.

Michael T. Mulligan [00:10:47] And an assault could be objectively dangerous, and the man died from it. And so even though there was another argument that, the man made at his trial, he argues, look, there were other things that could have caused his death, including the fact that, toxicology test found that he had hydro morphine in his urine. And so he argued, look, the man might have died from drug, the effect of drugs or heart attack or something else.

Adam Stirling [00:11:09] Yes.

Michael T. Mulligan [00:11:10] The judge didn’t accept that. So he found that, or she found that, drugs in the urine. Doesn’t mean they were in his blood and accepted that the headlock was the cause of his death. And so at the end of it, despite that fact pattern what this man was doing, found that even though, the security guard, the judge that accept you did not intend to cause this man harm, however, you did so and found that it was objectively not reasonable, which is an interesting thing. You know, in applying the issue of self self-defence, you know, there is sort of an often referred to adage, look, you don’t need to measure self-defence with nicety. But, you know, here you have a circumstance where even though the judge accepted that the security guard didn’t intend to cause harm, certainly didn’t intend to kill this man, found that continuing to hold him in the headlock after he stopped kicking and spitting and headbutting was not objectively reasonable.

Adam Stirling [00:12:07] hmm.

Michael T. Mulligan [00:12:07] And so on that basis, there was a conviction. And, you know, it’s, I think, something we all should just think about in terms of what we want the state of the law to be. Right. There were changes to the law with respect to self-defence a few years ago, trying to simplify what was a complicated area. And it gives judges a whole list of things to think about when trying to determine whether something was objectively reasonable. But you can have this kind of a scenario where you had a person who was trying to help and was himself being assaulted. And ultimately there’s this decision which you said, look, it’s just not objectively reasonable for there to be self-defence. And so this man’s been convicted of, this the 51-year-old security guard has been convicted of manslaughter. We don’t yet know what the sentence would be. Certainly, we think all of those things would be factors in that. But that’s the outcome. And you can just see how quickly life can turn around. This 51-year-old, five foot four security guard wasn’t even supposed to be working that day. He apparently was filling in for somebody who was sick.

Adam Stirling [00:13:07] hmm.

Michael T. Mulligan [00:13:07] So what a terrible what a terrible day to be a humorous security guard. And obviously it also causes you to reflect upon we’ve got all these sort of encampments. Were people smashing windows, doing all sorts of things, you know, protesting over Palestine. And you’ve got all sorts of police are there arresting people, and so on. And you just got to think how quickly something can turn from, you know, trying to remove somebody or hold them for the police into some tragedy like this. You know, we spoke the other week about the incident at Costco that resulted in a conviction for manslaughter.

Adam Stirling [00:13:41] yeah.

Michael T. Mulligan [00:13:41] And, sort of another example of that. And just so quickly, something can go very badly. So that’s the case of the security guard university and the manslaughter conviction.

Adam Stirling [00:13:51] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. We’ll continue right after this.

[00:13:57] COMMERCIAL.

[00:13:57] All right. We’re back on the air here at CFAX 1070, Legally Speaking, with Michael Mulligan for Mulligan Defence Lawyers. As we continue looking at the legal updates of the week. Number three, I see your Court of Appeal reconsideration of a moral claim to property in the context of an act that I’ve never heard of. What’s happening here?

Michael T. Mulligan [00:14:16] Yeah, this is an interesting act, an interesting legal concept. And it’s a legal concept of escheatment is what it’s called.

Adam Stirling [00:14:25] Escheatment

Michael T. Mulligan [00:14:28] Escheatment. And there is in British Columbia an act called the Escheatment Act. And here’s the history of that. So the concept of an escheatment is if you have land that winds up for some reason with no lawful owner, it transfers to the crown. And that concept has been around for a long time. And there’s a common law concept of an escheatment that still exists in British Columbia. And it existed in British law for many, many years. It actually the Court of Appeal case references the Magna Carta and how that used to operate.

Adam Stirling [00:15:01] hmm.

Michael T. Mulligan [00:15:01] Now you might think, how is it that you could wind up with some land that no one owns? And there are a couple of ways that could happen. One way that could happen is if you have somebody who dies without or without a beneficiary, without a will.

Adam Stirling [00:15:15] hmm.

Michael T. Mulligan [00:15:15] And if you die without that, we have an act of British Columbia. Wills Estates, WESA, this act that would provide for who gets your stuff if you die without a will and it would essentially go to your spouse. Right. If no spouse. And it would go equally to your kid. If no kids, you can go to your parents. But what if none of those people exist? What if you’re unmarried with no kids and your parents aren’t alive? Well, it goes to the province. The Crown. They get it.

Adam Stirling [00:15:38] Hmm.

Michael T. Mulligan [00:15:39] Another circumstance where that can happen is if you have a company that owns land, and the corporation is dissolved. Now what? Again, it gets transferred to the Crown. Province gets it. But when there is escheatment that is, you know, the Crown’s getting the property because there’s no other owner for it. Right. Somebody died or company’s gone. There’s been a provision in this act that provides that the is the attorney general who would act in his capacity, can transfer the property to somebody who has a legal or moral claim to it.

Adam Stirling [00:16:14] hmm.

Michael T. Mulligan [00:16:14] There’s also a provision to give it as a reward to a person who discovers the escheatment or forfeiture. That’s fascinating. Reward. Now the history of all this, if this existed before this Escheat Act and the history still exists, the long-ago history of this part of this was the Magna Carta protecting landowners from having the Crown take their land. And the idea was that if property escheated to the Crown, it couldn’t happen. Unless then there was a hearing which involved a then jury and government officials determining whether somebody has some moral claim to it, like some other family members. Should somebody else get it? Does somebody have a claim to it? And that concept is embedded in this Escheat Act. And so how does that relate to what is going on in 2024? What’s the Court of Appeal doing? Well this relates to a piece of property that is up near Nelson. Sounds like a nice piece of property. Two pieces you described as the west lot to the east lot. And they’re both on the lake. And the origin of it was that there was a larger piece of property granted to somebody by the Crown back in 1889. And then in 19, in the early in the early 1920s, a from the owner transferred a part, the east lot to what was described as the Nelson City Land and Improvement Company.

Adam Stirling [00:17:37] hmm.

Michael T. Mulligan [00:17:37] Kind of a predecessor to the city. And it was being transferred for the purpose of a road, like a road to be built there. So a road allowance.

Adam Stirling [00:17:46] hmm.

Michael T. Mulligan [00:17:46] Problem was that it didn’t get transferred properly. The paperwork wasn’t done properly, like it wasn’t properly indicated on the paperwork yet to draw a red line around it. That didn’t happen. It never got fixed and never got filed properly. So the transfer from the person to this Nelson City Improvement Company didn’t happen. And then a few years later, in 1930, the Nelson that that entity, that company, the Nelson City Landed Improvement Company dissolved itself. It said it thought that it didn’t own anything else and wasn’t needed anymore, it had the municipality. It thought to transfer everything it owned and so it was dissolved. Trouble was, it hadn’t. And so that’s one of the ways that the Escheat Act can exist if the company gets dissolved. And it did. And so once and then the property changed hands a couple of times, and it was always treated as sort of one block of land, like apparently there’s like, you know, fence all around it and like, there’s a home on one part of it, but like the storage buildings on the other, it looks like one property. But there’s been legal fighting over it for years, as between the current owners of this land. The property bought it back in 1992 and Nelson, the city, they’ve been fighting over. Whose is this?

Adam Stirling [00:19:02] Yeah.

Michael T. Mulligan [00:19:03] And that issue went all the way to the Supreme Court of Canada. And one of the arguments being made by the people who live there was that this is another interesting concept called adverse possession.

Adam Stirling [00:19:16] hmm.

Michael T. Mulligan [00:19:16] Which could result in property being transferred to somebody if they occupy it long enough. But they weren’t able to prove that they weren’t able to prove through this continuous occupation at the relevant periods because of bad records that went all the way to the Supreme Court of Canada, who found that no that didn’t apply. And so they came back. The other the determination was the land had an Escheated back in 1930 when this company dissolved itself, who then was no owner. So it went to the province, which then, once that was realized, resulted in an application for the modern version of what used to be the sort of 12-person jury determining whether there was a moral claim to some of their family members. That’s in this an Escheat act. But it’s the responsibility of the Attorney General provincially to decide, should this go to somebody, does somebody of a moral claim to it? Should there be a reward to the person who discovered the escheatment? And so the provincial government, in the form of the, the deputy attorney general, made a decision saying no, he didn’t think that anyone had a moral legal claim for it, certainly not the city, because the city didn’t, never was used as a roadway. And Just kind of dismissed out of hand the concept of giving a reward to somebody who discovers the escheatment which is written into the legislation. And so that decision went for a judicial review and now just wound up in the Court of Appeal. And that’s what brings us to the Court of Appeal decision that just came out. And the Court of Appeal. It has a sort of interesting discussion about, you know, the history of escheatment and how those juries used to work in the Magna Carta and the act of how they work together. It’s really been a fascinating legal history. That’s not just history. We still have this.

Adam Stirling [00:21:02] Yes.

Michael T. Mulligan [00:21:03] And so it was a judicial review determining was the attorney general, deputy attorney general’s decision reasonable here? And the Court of Appeal found it was not reasonable. And they pointed out that in the, this Escheat Act of the things that has to be considered is whether there should be a reward to a person who discovers the property has escheated and nobody figured it out back in 1930. Nobody had yet figured out what was going on. And really, only that determination was made once the trial judge determined and upheld eventually by the Supreme Court of Canada, over this legal tug of war over who gets the east lot. And so the Court of Appeal found that they have to that is to say, the attorney general has to go try again, because the, their previous effort failed to determine why this the current owners shouldn’t be given the property as a reward for, “discovering the escheatment”. And then, moreover, found that, there should have been a, a broader consideration, more factors taken into account when determining whether the people who owned the West lot or have a moral claim to it, right on the basis that they thought they owned this thing or thought they had a right to it. At one point, somebody, they purported to have purchased the interest from the person who owned the West lot, but ultimately that wasn’t effective because the guy on the west lot didn’t really legally own the east lot Nobody did.

Adam Stirling [00:22:41] hmm.

Michael T. Mulligan [00:22:41] The paperwork didn’t get filed properly. And so that’s how this law wound up in this kind of legal no man’s land, with nobody owning it how it escheated to the province and now the Court of Appeal has said, no, you’ve got to go back and determine whether the, people who owned the other part of this property that looks like one piece of property, whether they should receive either the reward for discovering this or whether there should be a broader consideration of whether they have a moral claim to it. And so that’s the Escheat Act, escheatment. And what’s going on in Nelson about who owns the east side of this personal property.

Adam Stirling [00:23:19] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Thanks, Michael. Appreciate it.

Michael T. Mulligan [00:23:26] Thanks so much. Have a great day. All right.

Adam Stirling [00:23:27] You too.

Automatically Transcribed on May 3, 2024 – MULLIGAN DEFENCE LAWYERS