This week on Legally Speaking with Michael Mulligan:
Five different legal challenges to COVID-19 restrictions are all dismissed on the same day. Several of the people who launched legal challenges failed to avail themselves of internal legislative review mechanisms before commencing challenges in court.
Before commencing a judicial review, it’s a requirement that someone exhaust legislative avenues to appeal an administrative decision.
Also, on the show, an indigenous man who was sentenced to jail after he plead guilty to burning down a house he owned before he was evicted for failing to pay his mortgage was successful in an application for the appointment of counsel in the Court of Appeal.
In the Court of Appeal, unlike at trial, there is legal authority to appoint a lawyer to help if someone can’t afford to hire a lawyer on their own. Before appointing a lawyer, however, a Court of Appeal judge needs to conclude that the issue being raised has some merit.
In the case discussed, the indigenous appellant had been banished from the reserve he lived on for six months prior to being convicted. The banishment was pursuant to authority delegated by the federal government that permitted the band council to banish someone charged with a criminal offence.
The man is arguing that sentencing him to jail following the banishment amounted to double jeopardy.
Section 11 (h) of the Charter says that “if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again”
Not every corollary consequence of a criminal offence will constitute punishment for the purpose of 11 (h) of the Charter. For example, being fired from your job would not amount to a punishment for the purpose of this section.
The Court of Appeal judge hearing the application for the appointment of counsel found that banishment was a punishment that had traditionally been used for criminal offences. As a result, they concluded that the ground of appeal had merit and ordered that a lawyer be appointed to argue the appeal for the man.
Finally, on the show, the process for requesting a jury in a civil case and applying to cancel a request for a jury is discussed.
Where either the plaintiff or defendant files a notice to have a jury trial, the other party can oppose it on various grounds, including the complexity or length of a case.
In the case discussed, the issue was whether an insurance policy covered damage to the engine of a fishing boat. The insurance company wanted a jury trial, while the boat owner opposed it. The judge concluded that the case concluded that there was no reason a jury couldn’t decide the case.
An automated transcript of the show:
Legally Speaking Sep 15, 2022
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. A pleasure as always.
Michael T. Mulligan [00:00:07] Good morning. Always great to be here.
Adam Stirling [00:00:09] Now, I recall you and I two years ago, in fact, probably more than two years ago now, were discussing complaints that we heard from members of the public regarding the purported unconstitutional nature of British Columbia and other jurisdictions, COVID 19 provisions. And I remember at that point you were reminding us of the importance of Section 1of the Charter of Rights and Freedoms, as well as the rights that all of us have of security of the person. In hindsight, what was the status of many of the legal challenges that were brought forward?
Michael T. Mulligan [00:00:41] Well, this Monday, just this past Monday in Victoria, in fact, there were a whole series of these challenges that were decided on by the BC supreme Court in the form of Chief Justice Hinkson. He had four decisions that came out on Monday, and there was another decision, which was also a recent one with a different judge. And essentially all of the decisions that have come out recently dismissed all of the various challenges that were brought. I must say, when I read all of these, as I’ve just done, it reminded me, I don’t know if you’ve played fruit ninja on an iPad or similar device.
Adam Stirling [00:01:26] I’m familiar with it. I’ve never played, but I’m familiar with it.
Michael T. Mulligan [00:01:29] I had that in mind as I read these various constitutional challenges with Chief Justice Hinkson cutting through all of them in quick succession. There were a variety of arguments that were made, challenging all manner of things, and the way in which the various challenges were dismissed was varied. One of the, a couple of the challenges that were brought on constitutional grounds wound up being dismissed on the basis that the people bringing the challenges had not exhausted their other statutory remedies.
Adam Stirling [00:02:08] hmm.
Michael T. Mulligan [00:02:08] And the way that works is that if there is some kind of a government administrative decision, you know, requiring you to have a vaccine card or, you know, denying you a driver’s licence or whatever it might be, before you’re able to just go off to court and challenge it. You need to exhaust reasonable remedies that are provided for in the legislation. Right. So, for example, if you fail your driver’s test, there’s probably some scheme in the Motor Vehicle Act to appeal that. Right. And if you don’t first exhaust the internal appeal mechanisms that might exist, you’re not going to be successful in court. They want you to sort of exhaust your statutory appeal mechanisms before you go further. And so, a couple of these were dismissed on the basis of the people bringing the challenges to various, you know, public health orders and so on had not exhausted the remedies they would have had to challenge them internally. And so, they didn’t go far from that perspective. Another one of the challenges that was brought by one of the people bringing the challenges, challenge argued that even though he received a health exemption from having to get vaccinated when you needed to do that, to go into restaurants and so on, even though he will he filed an appeal based on health grounds and was successful that some businesses were not recognizing that or letting him in only on a sometimes are asking him many questions about his exemption. That argument was dismissed on the basis that constitutional rights are things the obligations the government might have. They don’t apply to private businesses. And so even if some private business was to deny you entry or not understand the exemption, that’s not the government’s fault. And so, you can’t get a constitutional remedy for that. So that was another basis to dismiss one of these things. There was another interesting challenge. Somebody brought that during the height of the pandemic when hospitals were filling up. There was a period of time when these sort of internal reviews that you could request the decided to only do them for health reasons and not for people that were challenging the need to get a vaccine passport or something for some other reason.
Adam Stirling [00:04:35] hmm.
Michael T. Mulligan [00:04:35] That was an interesting one that was brought by somebody in Victoria here who was described as a person who had a law degree but never qualified to practice and so operates as a legal consultant doing cases for free.
Adam Stirling [00:04:50] Mm hmm.
Michael T. Mulligan [00:04:51] That that challenge was unsuccessful as well. It was an interesting one. The court found that at the time and in the context. It was not unreasonable to dedicate the medical resources to treating people rather than having doctors spending their time reviewing hundreds of applications by people that didn’t want to have a vaccine passport for non-medical reasons.
Adam Stirling [00:05:12] Interesting.
Michael T. Mulligan [00:05:13] It was an interesting challenge, but I didn’t succeed either. One of the other challenges that was brought was a challenge to the requirement that existed for some time to do a COVID test before coming back into Canada. This challenge was brought under the Quarantine Act, which was federal, and it was a woman who showed up at the border crossing in Surrey in November of 2021, I believe it was and they said, we have to do a test. And she said, no, we’re not doing it. And so, they gave her a ticket, which amounted to $5,750. The way, by the way, worked in that fashion is that you have an if you’re a Canadian citizen, you’ve got a constitutional right to enter Canada or leave Canada. And so, they can’t just turn you around and say, go back where you came from. If you don’t do the test, they would let you in, but then hand you this whopping ticket.
Adam Stirling [00:06:10] Yes.
Michael T. Mulligan [00:06:11] In that particular case, what happened is the woman apparently went away travelling and didn’t receive, she said, her court date when she challenged the ticket and she tried to get an extension of time to appeal it or another opportunity to appeal that was denied. And she claimed that some unknown person at the courthouse gave her advice that the way to proceed was an attack on the legislation itself. She tried that. That was poor advice. That amounts to what’s called a collateral attack on something.
Adam Stirling [00:06:48] mm hmm.
Michael T. Mulligan [00:06:48] She should have challenged the decision not to allow her time to or another chance to appeal the ticket, rather than trying to challenge the scheme as a way to challenge the ticket was what it amounted to. And so that challenge as well was dismissed. It was an interesting one. She, unfortunately for her, wound up with a costs order against her for doing that. Maybe the moral of the story is don’t take legal advice from unknown random people at the courthouse. Maybe you want to talk to a lawyer or somebody to figure out how you should frame your legal challenge.
Adam Stirling [00:07:20] Indeed.
Michael T. Mulligan [00:07:20] So in any case, for a variety of diverse reasons, which amounted to, in many cases, a conclusion that the orders that were put in place were reasonable in the context of the information that they had, that there just wasn’t a constitutional failure here. Some of those amounted to procedural problems of how these things were brought. In other cases, the judge went on and analyzed the merits of it. And so essentially Monday was fruit ninja day for the various constitutional challenges to the various vaccine and passport and Quarantine Act requirements and testing requirements. All of them were dismissed. I think we probably I think we might have predicted that a couple of years ago when we talked about it. But there we have it from Chief Justice Hinkson, and that’s it for those. Maybe there they’re more in the pipeline, but you’ve got a mit full of decisions that seem to cover a pretty good portion of the waterfront and none of them got any legal traction whatsoever.
Adam Stirling [00:08:27] Very well. Michael Mulligan with Mulligan Defence Lawyers. We’ll take a quick break here at CFAX 1070. Continue, Legally Speaking. Other stories on the agenda coming up right after this.
Adam Stirling [00:08:36] All right. We’re back on the air here at CFAX 1070 as we continue, legally speaking, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. What’s next on the agenda, Michael?
Michael T. Mulligan [00:08:45] Next on the agenda is, I think, a very interesting case out of the Court of Appeal that’s got at least a couple of significant elements to it. The background of the case, it arises out of the Wei Wai Kum First Nation, otherwise the Campbell River Indian Band and the background is that the appellant in this case and his mother had built a home on the First Nation there. One of the challenges that arises for First Nations people that want to build a home is that unlike in any other location, you can’t get the usual kind of mortgage to build a home because of how they deal with land ownership on reserves. They have this idea of collective land ownership, and what it means is that an individual person can’t own the land. And if you can’t own the land or sell the land, you can’t get a mortgage easily because a bank would be unable to repossess the home if you didn’t pay your mortgage.
Adam Stirling [00:09:50] hmm.
Michael T. Mulligan [00:09:50] That’s the essence of it.
Adam Stirling [00:09:51] Yeah.
Michael T. Mulligan [00:09:51] The origin of that is just really unsatisfactory. I think it was like not trusting people to make adult decisions about property.
Adam Stirling [00:10:00] Yeah.
Michael T. Mulligan [00:10:01] It’s something we really need to fix. But in any case, that’s the background. So, the appellant of this case and his mom wanted to build a home on this First Nations land, and so they got a mortgage. And to do that, they had to have the band, I guess, guarantee the mortgage, because otherwise the bank would not lend the money to them, because the bank would have no way to have any recourse if they didn’t pay the mortgage right, which prevents people from doing rational adult things like getting a mortgage and building home. But that’s what happened. Unfortunately, they didn’t pay the mortgage. And so, what happened is the band had to pay out the mortgage and then was going to evict the person and their mother from the house.
Adam Stirling [00:10:41] Yeah.
Michael T. Mulligan [00:10:43] Unfortunately, they responded to that by burning the house to the ground.
Adam Stirling [00:10:46] Oh, wow.
Michael T. Mulligan [00:10:48] The house burned down, it took a bad turn, and so they wound up being charged with arson, effectively. Right. For burning this house.
Adam Stirling [00:10:56] Yeah Wow.
Michael T. Mulligan [00:10:57] The son without he pled guilty to doing this and was sentenced to 21 months in prison, as was his mother. And so, the son appealed that. And there are two interesting, there are a couple of interesting elements to how that played out, this decision that came out from the Court of Appeal. First of all, unlike in at trial where if a person can’t afford a lawyer, they might be able to get legal aid or they might not. Right. In BC, if you have a minimum wage job, you’re considered too wealthy to get legal aid and you’re literally on your own, just really unsatisfactory. In the Court of Appeal, there’s a section in the Criminal Code, section 684, and that section permits a judge of the Court of Appeal to appoint a lawyer to help somebody who can’t afford a lawyer to help with an appeal. It’s a pretty progressive thing to have.
Adam Stirling [00:11:57] hmm.
Michael T. Mulligan [00:11:58] Where somebody makes that kind of an application. A judge of the Court of Appeal has to consider a variety of factors. Things like, you know, the complexity of the case, what the importance of it is this person able to do it themselves properly, and also the merits of the appeal. So, they need to look at those a thing of merit. They wouldn’t want to be appointed counsel if an appeal is frivolous and just isn’t going anywhere. And that brings us to the interesting argument, which got at least some traction from one of the judges from the Court of Appeal. And the argument that got traction with them involved an argument of what amounts to a claim of double jeopardy.
Adam Stirling [00:12:37] Hmm.
Michael T. Mulligan [00:12:38] And that arises out of section 11 of the charter, which provides that if somebody is finally acquitted of an offence, not to be tried for it again; and are finally found guilty and punished for the offence, not to be tried and punished for it again, that kind of makes sense. It’s kind of a consistent with principles of fairness. You don’t want to keep punishing the person repeatedly for the same thing. That’s not fair. Now, what does it mean to be punished for something again? And what does it mean to be convicted of something?
Adam Stirling [00:13:07] Hmm.
Michael T. Mulligan [00:13:08] Because sometimes there are sort of consequences to criminal conduct that wouldn’t amount to a conviction or punishment. Right. Like maybe you lose your job, for example.
Adam Stirling [00:13:18] yeah, yeah.
Michael T. Mulligan [00:13:18] Right. And that wouldn’t be a punishment. That’s another very unfortunate thing that might happen if you were convicted of a criminal offence. But here’s what happened in this case. The there’s been a scheme put in place to, by the Federal Government, to delegated authority to some bands to impose these things called community protection laws. And this band has such a law, called the Community Protection Law from 2020. And one of the things that this Community Protection Law permits the band to do is to banish people from First Nation territory. And it permits banishment when somebody is either convicted of an offence or charged with an offence. Now, unfortunately, the piece of legislation, the Community Protection Law is not particularly well drafted. Like there are problems with it. Like how was that decision made and does the person have any opportunity to say anything about it? There are problems with it, but it exists, and they did it. In this case, the banished the man and his mother from the First Nation when they were charged. Yeah, and they did so for a period of six months. And so, the argument or one of the arguments on the appeal was, hey, that’s a punishment.
Adam Stirling [00:14:42] hmm.
Michael T. Mulligan [00:14:43] Banishment is a pretty serious punishment.
Adam Stirling [00:14:44] Yeah. So, you should try and imprison him. Yeah, I see it.
Michael T. Mulligan [00:14:47] Yeah. Can you do it again? The bands already punished me.
Adam Stirling [00:14:49] Yeah.
Michael T. Mulligan [00:14:50] And the judge, hearing this application for the appointment of counsel to help, concluded that indeed historic historically banishment was a criminal sanction in both the colonial legal system and some traditional First Nations legal system. That is a punishment that would be imposed on people. Right. And so that may bring it into that territory of a punishment rather than just sort of incidental thing that might have happened to you, like you lost your job. Right?
Adam Stirling [00:15:21] Yeah.
Michael T. Mulligan [00:15:22] You know, the British legal system, we used to banish people to Australia
Adam Stirling [00:15:27] I suppose we did, didn’t we. Yeah. Yeah.
Michael T. Mulligan [00:15:29] That was kind of a punishment. We got convicted of theft. Guess what, we need to populate this colony off you go to Australia. Good luck. With the good luck of the boat. And as well, first nations would use that. In some cases, it would appear as a traditional form of punishment. You’re out of the community. You’ve done something to damage the community. You burn the house down.
Adam Stirling [00:15:51] Yeah.
Michael T. Mulligan [00:15:52] And so the judge hearing this application to appoint counsel had to analyze whether this appeal had some merit. And the judge concluded that indeed it does. And so, the judge has ordered the counsel be appointed. And one of the things that’s going to be argued on the appeal when it gets there is going to be does this amount to effectively double jeopardy?
Adam Stirling [00:16:15] Hmm.
Michael T. Mulligan [00:16:16] And that has all kinds of implications. Right?
Adam Stirling [00:16:19] Yeah.
Michael T. Mulligan [00:16:19] Right. Because if you’ve got people being banished in this way like this code permits, banishment about being charged, does that mean that no more prosecution can go on if that happens?
Adam Stirling [00:16:29] Yeah.
Michael T. Mulligan [00:16:30] The scheme also contemplates banishment potentially forever for somebody who was convicted. Is that allowed? Because it would seem to me that would work the other way. Right. If somebody is convicted of something and they’re punished criminally and if this amounts to sort of a criminalesque punishment, should the ban then later be able to say and by the way, we’re banishing you? Or is it. No, no. I’ve served my 21 months in jail. I’m back. You can’t now banish me. I’ve already been punished. How can you punish me in that way again? It’s over.
Adam Stirling [00:17:01] Yeah.
Michael T. Mulligan [00:17:02] And so it’s going to be really interesting to see how this thing plays out, because it will have all kinds of implications for these sort of schemes in both directions. Also, I hope if anyone reads these, the Community Protection Law needs some work. But leaving that aside, there are just some really important issues there about how are those to work. And I must say, what obligations are there on sort of entities beyond the courts to deal with allegations of criminal conduct? Because you see this in other contexts as well. Like, you know, for example, when there are allegations of sexual misconduct on the hockey team or by somebody who is a player in a hockey team or somebody who is a student in a university, there seems to be this trend towards an expectation that the hockey team, hockey league, university, whatever it might be, is going to investigate that and impose some kind of punishment or sanction. Is that appropriate?
Adam Stirling [00:18:05] Yeah.
Michael T. Mulligan [00:18:06] I often sort of scratch my head when I hear those things, complaints about why I didn’t want to do something. Why in the world is the Hockey League charged with that? It seems to me if somebody is accused of a violent crime, that’s kind of what we have courts for.
Adam Stirling [00:18:19] It’s not like we have hockey court and hockey judges. We have just one justice system for everyone, supposedly.
Michael T. Mulligan [00:18:26] Right. And should we have, for example, this sort of separate, parallel justice system for people who are First Nations people, indeed, should they be subject to some greater punishment for that reason? And so, there’s lots wrapped up in this, starting with how we deal with First Nations people and their ability to own land. And you’re not treating people like adults who can make sensible decisions. And then we’ve got that issue of the fact that there is possible to appoint counsel. And then we’ve got that other big issue about whether it amounts to a double jeopardy. And so, we will find out.
Adam Stirling [00:19:00] Very interesting. We’ve got 3 minutes and 20 seconds remaining in today’s segment.
Michael T. Mulligan [00:19:05] Yeah, I think we can cover the last case in that time. Last case I’ve got on the agenda is a case involving a fishing boat and an insurance policy.
Adam Stirling [00:19:14] hmm.
Michael T. Mulligan [00:19:15] And it was a company that bought a fishing boat and then bought insurance for the fishing boat and the policy they bought covered the fishing boat for, and its great language, adventures, and perils of the seas and of other like perils, losses, and misfortunes. And on and on it goes. And in each case, they had this fishing boat and on its maiden voyage, after some work being done on the boat to fix it up, the engine overheated and blew up, causing $125,000 in damage and an insurance claim. Now, the legal issue that was decided involves this topic. In British Columbia, when you’re in the Supreme Court suing somebody over money,.
Adam Stirling [00:19:57] mm hmm.
Michael T. Mulligan [00:19:58] Either side can request a jury trial. And they would do that by giving a jury notice to the other side. And then they have to pay a deposit of fees because there are increased fees for having a jury trial. Sheriff’s go to collect people, their jury fees paid out to jurors, that kind of thing.
Adam Stirling [00:20:12] Yes.
Michael T. Mulligan [00:20:13] And if the other side other party doesn’t like that, it doesn’t want to have a jury, they can try to set aside the jury notice. And the fish boat owner here made an application to try to stop the insurance company from having a jury deal with the case. Which brings up sort of the interesting issue of when should that be permitted and when do you have a right to a jury and might not have a right to a jury? And the kinds of factors that a judge has to decide when one party is trying to stop having to stop the other side from requesting a jury trial, include things like how many parties are involved, how long is it going to go, the volume of expert testimony. This one I thought was a good factor they have to consider the use of unfamiliar technical terms. So that’s sort of in the mix.
Adam Stirling [00:21:01] hmm.
Michael T. Mulligan [00:21:02] So a judge could consider a whole variety of things when determining is it appropriate to stop somebody who wants to have a jury trial from having a jury trial
Adam Stirling [00:21:10] Yes.
Michael T. Mulligan [00:21:11] And in this case, over the fishing boat motor problem, the judge considers the fact that there are only two lawyers involved. The case is only going for eight days and there is one expert, and the area the law is not particularly novel and there’s no reason why, you know, people on a jury can’t decide whether the exploding engine falls within that category of being covered by the insurance policy. And so, the application was unsuccessful. And the result would be that the insurance company insuring the fish boat will get to have the jury trial they wanted. And so that’s how it works in a civil case where you got one party that wants a jury trial, and one party doesn’t. The judge has to decide whether the case is too long, complicated or whatever it might be that might prevent a jury from properly deciding it. And in the case of the exploding boat engine, no problem. And so, an insurance company or a jury will get to decide whether that peril is a peril covered by the policy.
Adam Stirling [00:22:09] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday here on CFAX 1070. Michael, thank you. A pleasure, as always.
Michael T. Mulligan [00:22:17] Thank you so much. Have a great.
Adam Stirling [00:22:18] Day. All right. You, too. Take care.
Automatically Transcribed on September 26, 2022 – MULLIGAN DEFENCE LAWYERS