This week on Legally Speaking with Michael Mulligan:
From March to May 2020, the number of people who have died as a result of drug overdoses in British Columbia has been more than double the number of people who have died from COVID-19: 401 vs 164.
January COVID-19 deaths: 0 Overdose deaths: 77
February COVID-19 deaths: 0 Overdose deaths: 76
March COVID-19 deaths: 24 Overdose deaths: 113
April COVID-19 deaths: 87 Overdose deaths: 118
May COVID-19 deaths: 53 Overdose deaths: 170
Some of the efforts to assist with COVID-19, such as providing $2,000 / month payments to people who are out of work, may have increased the number of drug overdose deaths. As of May 2020, the number of overdose deaths has more than doubled from the number seen in January or February, before the Canadian Emergency Response Benefit became available.
Provincial Health Officer Dr. Bonnie Henry has released a report entitled Stopping The Harm – Decriminalization of people who use drugs in BC. The report proposes that drug addiction be dealt with a medical, rather than criminal law issue.
Also discussed on the show are three pieces of provincial legislation that were recently introduced.
Bill 22 would permit people under the age of 19, who are determined to have engaged in “severe problematic substance use” to be involuntarily detained by chemical, electronic, mechanical, or other means for the purpose of “stabilization”. For this to be effective, in any long-term way, it’s necessary to have immediately available drug treatment space available. This requires more than legislation: it requires funding.
Bill 21 would permit electronic wills, that can be witnessed remotely. This will be a longer-term solution than Ministerial Order M161, which has temporarily permitted wills to be witnessed remotely, in the context of COVID-19. Without measures like these, people in long term care homes, and others who are in isolation, would be unable to create a will.
Bill 11 is much more problematic. This is the legislation that would implement mandatory no-fault ICBC car insurance. The premise of the legislation is a prohibition on being able to sue someone who injures you in a car accident. Instead, you would be required to accept compensation from ICBC, which is referred to as “the corporation” in the legislation. The compensation from ICBC will the same regardless of who caused the accident.
Legally Speaking with Michael Mulligan is live on CFAX-1070 every Thursday at 10:30 am.
Automated transcript of the show from June 26, 2020:
Legally Speaking June 25, 2020
Adam Stirling [00:00:00] Welcome to the program, Barrister and Solicitor of Mulligan Defence Lawyers Michael Mulligan for Legally Speaking here on CFAX1070. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Thank you very much for having me.
Adam Stirling [00:00:10] Lots on the agenda. Where are we going to dive him first?
Michael T. Mulligan [00:00:13] Well, I think a good place to start would be a report that was released last week by Dr. Bonnie Henry. Dr. Henry, of course, has been very busy and very prominent in dealing with the COVID-19 in British Columbia. But she’s got more going on than just that and report that she released last week, I think has perhaps not received some of the attention that it genuinely deserves. The report that she issued last week, Bonnie Henry, is entitled “Stopping the Harm Decriminalization of People Who Use Drugs in B.C.” and the punch line of it, at the beginning, is the decriminalization of people who are in possession of drugs for personal use is the next logical and responsible step we must take to keep people alive and connect them to the health and social supports they need. And the context for her releasing this report last week was some statistical information concerning the number of people in British Columbia that are dying of drug overdoses.
Adam Stirling [00:01:23] Yes.
Michael T. Mulligan [00:01:24] That number on average has more than doubled since the beginning of the, since March when the COVID-19 crisis began. And the number of people that have are dying of overdoses, drug overdoses, in British Columbia vastly exceeds more than double the number of people that are dying of COVID-19.
Adam Stirling [00:01:45] Yes.
Michael T. Mulligan [00:01:46] To provide some context, since March, the total number of people by the end of May, that had died of COVID-19 was 164 in that same period of time, March to May, the number of people that died of drug overdoses in British Columbia was 401, more than, it’s more than double the number of people that are dying of drug overdoses than are dying of COVID-19. And we’ve seen the tremendous effort that’s gone into preventing COVID-19 deaths.
Adam Stirling [00:02:15] Yes.
Michael T. Mulligan [00:02:16] The other thing which is really notable is that the number of people dying of drug overdose deaths has more than doubled since the COVID-19 crisis began. If you look back at months of January and February of this year in British Columbia, each of those months we lost 77 people in January to drug overdose deaths.
Adam Stirling [00:02:35] Yes,
Michael T. Mulligan [00:02:36] 76 people in February, by May, we lost 170. The number has almost well, it’s more than doubled. What are the factors that would, how can that be explained? It would appear that there are two factors. One would be this, as outlined in the Dr. Henry’s report, is that some very dangerous versions of fentanyl and other synthetic opioids that are available on the street.
Adam Stirling [00:03:07] Yes. (Interference)
Michael T. Mulligan [00:03:09] obvious factors. Is that the benefits that have been provided to people to respond to COVID-19 if you supply$2,000 to somebody who’s teetering with an opioid addiction, it should be apparent what risk you run. And the effect of those things has been to have more people die. The increase in the number of deaths to opioid addiction and use is much more than the number of people that have died of COVID-19.
Adam Stirling [00:03:47] Yes.
Michael T. Mulligan [00:03:48] it is just so serious. And when you compare the amount of attention and effort that’s been given to trying to stop and control COVID-19 and compare that to the degree of effort that’s put in to stop a much greater number of people dying of opioid overdoses, it is a little bit of a head scratcher. And so, the report the Dr Henry released, I think deserves much more attention and consideration than it’s received so far.
Adam Stirling [00:04:22] Yes,
Michael T. Mulligan [00:04:23] Because the amount of harm and death that is flowing from drug addiction and overdoses in British Columbia vastly exceeds the number of deaths caused by COVID-19. And we’ve been prepared to, to some extent, shut down the economy of the province to prevent COIVD-19 deaths, whereas the response to the increased number of opioid deaths, some of which may be attributed to our COVID-19 efforts, seem to be receiving very modest attention. And that’s difficult to take.
Adam Stirling [00:04:58] Yes, yes it is.
Michael T. Mulligan [00:04:58] I think that just really does need to be looked at., and that report, Dr. Bonnie Henry, “Stopping the Harm Decriminalization Of People Who Use Drugs in B.C.” and it sets out some of that background and then makes a number of specific proposals to try to address that, including things like: providing direction to the police in terms of how they are to deal with people who are in possession of drugs for personal use.
Adam Stirling [00:05:30] Mhmm
Michael T. Mulligan [00:05:31] It provides comparisons and information about how different approaches, how treating drug addiction from, as a medical issue, rather than necessarily a law enforcement issue, how that has worked in other places. And one of the outcomes where they have tried other sort of medical rather than criminal approaches to stop drug use.
Adam Stirling [00:05:55] Yes.
Michael T. Mulligan [00:05:55] Are just vast decreases in the number of people who are dying. And I think we need to remember as well that some of the measures that we have taken in British Columbia, things like safe injection sites, for example.
Adam Stirling [00:06:10] Yes.
Michael T. Mulligan [00:06:11] Are genuinely half measures because what they contemplate is somebody going out and buying, well, first of all, earning money generally by things like prostituting themselves or committing property crime.
Adam Stirling [00:06:25] Yes.
Michael T. Mulligan [00:06:26] In order to get money to buy unsafe drugs on the street, which they will then bring to an injection site and use. And then when they overdose, you’d be there to revive the person. That is if you just step back for even a moment.
Adam Stirling [00:06:45] Yeah.
Michael T. Mulligan [00:06:45] And look at that approach. Of course, it may be more, it’s certainly designed to prevent people from dying alone where there’s nobody there to revive them. But having people engage in very harmful to themself and harmful to society behaviour in order to buy illegal drugs to then overdose on them is a ridiculous response to a very serious problem. And it’s not as if there’s no other approach that could be taken to that. Now, surely if you were interested in avoiding 170 people a month dying, you might consider steps like for people who are addicted to these things, providing drugs to them that will not cause them to overdose and die when used in a facility like that, and not sending them out to engage in property crime and prostitution in order to get more money to come back to the safe injection and use.
Adam Stirling [00:07:44] Yeah.
Michael T. Mulligan [00:07:44] We caused so much harm to the community and people and we have an epidemic of people who are dying from this. And to watch how we respond to that, as a society, in comparison to how we respond to COVID-19 is, I think, cause of very legitimate concern and clearly a very serious concern to Dr. Henry as well.
Adam Stirling [00:08:09] Indeed, I’ve been convinced over the years to support the medical provision of safe supply. And as you have pointed out in the past, right now, the ordinary consequence of a person breaking drug laws to both procure and consume these substances, even if there was no justice system, they are, in effect, risking literal death. They prostitute themselves to buy a substance that is, in effect, something that may kill them upon ingestion. We can craft no deterrent in our criminal justice system that is more potent than death itself. And indeed, that is a risk these people knowingly take every single day is against that context that I, and it sounds like you as well, suppose that we have to, instead of trying to dream up more effective punishments, we have to get smarter and provide them with a substance in a way that’s less dangerous.
Michael T. Mulligan [00:08:54] You’re exactly right. If you’ve decided that you’re prepared to accept the risk of death, which is what you are accepting by using these drugs, we are not going to deter you by threatening to send you to jail.
Adam Stirling [00:09:07] No.
Michael T. Mulligan [00:09:07] You’ve accepted death. So, I’m not sure what we in the criminal justice system could threaten you with, that’s going to cause you to think, well, perhaps they shouldn’t use that deadly substance again. That’s just we, we’ve tried that for many years, and it is simply a clear failure.
Adam Stirling [00:09:25] Yes. I will take quick break. Michael Mulligan continues offering us the benefit of his knowledge and inside his defence counsel with Mulligan Defence Lawyers. We’re back right after this.
Adam Stirling [00:09:34] I expect more mental energy than I would have preferred to expand, yesterday, trying to figure out what the heck was being proposed in terms of changes to British Columbia’s Mental Health Act with respect to youth requiring stabilization care after presenting at hospital with symptoms consistent of an overdose. Ordinary person like me, I can read statute and tell it, tell you what it says. It’s a far more difficult to tell you, though, what laws mean, which, of course, is why we have lawyers, Michael Mulligan from Mulligan Defence Lawyers. Next on the agenda, Bill 22, the Mental Health Act.
Michael T. Mulligan [00:10:03] Sure. Well, this was one of a number of pieces of legislation which were recently introduced, not yet passed. Where it comes from is no doubt parents who are alerted to their children who have overdosed and brought, have been taken to hospital as a result, then to be released, go back out and continue the cycle of using drugs and overdosing again. So that’s what it’s designed to try to stop or at least provide a little bit of a circuit breaker there. But the concept of it is that you if you have a person who’s under the age of 19, who’s taken to a public hospital, generally as a result of a an overdose, and the legislation is really pretty intricate, it talks about sort of the various things which would constitute, for example, a severe problematic substance use; which are things like any two of, two of them are: craving for the substance and number three, difficulty controlling the use of the substance.
Adam Stirling [00:11:09] Hmm
Michael T. Mulligan [00:11:10] Probably a fairly low bar.
Adam Stirling [00:11:12] Yes.
Michael T. Mulligan [00:11:12] So if you’ve got somebody who’s under age and is in that category and who is taken to a public hospital, there is provision for a doctor to sign a certificate that would cause the young person to be then involuntarily kept in a stabilization facility. Which is for a period of time that can be extended up to basically about a week. There are two different certificates and you have a system for different confirming physicians and this sort of thing. But the concept would be you’re going to involuntarily keep the young person in a stabilization facility, which is sounds like designed to be a portion of a hospital, including by various means, things like chemical means, electronic means, mechanical, physical or other means. So, it sounds like it would contemplate things like, chemical means suggests to me something like drugging the young person.
Adam Stirling [00:12:13] Yes. Chemical restraints, indeed.
Michael T. Mulligan [00:12:15] Right. Or physically restraining them or speaks about having the person in a locked ward with physical restraints or electronic devices to keep them there. Now, I suppose there are two possible assessments of that. One is, of course, if you accept you’ve got somebody who’s just incapable of deciding what’s going on and they are just immediately a harm, potentially causing harm to themselves, maybe those things are useful in the short term. in the longer term, of course, least in my experience, and I’ve dealt with many people that have been through this.
Adam Stirling [00:12:48] Yes,
Michael T. Mulligan [00:12:49] and families they’ve been through this.
Adam Stirling [00:12:50] Yes.
Michael T. Mulligan [00:12:50] Unless ultimately, you’ve got a person who whether they’re young or old who wants to get help with their addiction. We are going to be, we have no hope of succeeding in treating you involuntarily. That’s just not going to work or happen. Right. We’re just not going to be able to, you know, mechanically restrain you and force you to get over your opioid addiction. That’s not happening. But this contemplates, I think, sort of a little bit of a circuit breaker for a short period of time with the hope being, I suppose, that once somebody comes out of the immediate effects of an overdose, they would be able to at least contemplate obtaining some longer term treatment. The Act, these amendments don’t permit involuntary longer-term treatment, which is probably futile anyways. But the other thing we need to remember is that passing a piece of legislation doesn’t, of course, cause any of these things to happen. You would need, if you wish to address some of these things, things like immediately available treatment facilities.
Adam Stirling [00:13:59] Yes.
Michael T. Mulligan [00:13:59] Immediately available beds. When you have if you had somebody who’s 17, who finally says when they came out of their latest drug overdose, OK, I want help. Right. It’s not useful to say, well, we’ll put you right on the list and we’ll be with you in 60 days, if you want? If you have somebody in that spot, you need to fund it and have treatment facilities available, really right then. Because letting that person go and say, well, you’re on the list, we’ve got a stabilization plan for you and we’ll see you sometime, we’ll call you sometime between 30 and 60 days from now is almost certainly going to be a waste of time. If the person is looking for help and they want it, you need to fund it and have the facilities available immediately. And so whether this scheme has any hope of helping it is really going to be a function of whether we’re prepared to put the resources in to those kind of treatment facilities such that if once you’ve got somebody saying, yes I want help, you’re able to actually provide that. And in many cases, we don’t have that now. And so, the Mental Health Amendment Act isn’t going to create available treatment facilities. It simply provides this sort of mechanism to keep the person there, strap them down or something for a few days. Certainly, well-intentioned and it comes from desperate parents seeing their children overdosing in the repeatedly and going in and out of hospital, being intubated and given, you know, Narcan and things of this sort to revive them. And so, it’s clearly comes from a good place. That’s what the concern is that, you know, whether we should be limiting that to young people’s is another good question. If you’re prepared to accept that it’s a wise idea to medicated strap people down to allow them to think clearly about their treatment needs.
Adam Stirling [00:15:58] Mmhmm
Michael T. Mulligan [00:15:59] You know, on one level, you may say, why are we stopping at 19?
Adam Stirling [00:16:02] I was going to ask, there is already a medical certification process that can take place once a say, a wellness check results in a person being transported to hospitals. This would be in addition to that tool in the toolbox.
Michael T. Mulligan [00:16:13] Indeed, your correct, right. we already have provision to involuntarily treat people if they are a threat to themselves or others. And so, there are circumstances where you could classify somebody who’s repeatedly addicted to drugs, using them and risking death. You could argue that, well, that person’s a risk to themselves. And in some cases, you could wind up with a certification under the existing mental health legislation. This seems to contemplate sort of a special short-term provision dealing with young people. But if you conclude that this is beneficial, you know, because there is a Trade-Off there in terms of personal autonomy and civil liberties and so on. Right. You’re, you know, medicating somebody or strapping them in or locking them in a ward, to have them wait a period of time and contemplate their position. If you conclude that that’s a good idea from that perspective, it’s a balancing, then I suppose the next question to ask is why are we stopping at 19?
Adam Stirling [00:17:13] Yeah.
Michael T. Mulligan [00:17:15] And, you know, the answer to that may be it’s easier to accept the idea that somebody who is not you may be subject to things like involuntary medical treatment. But, you know, no doubt this comes from well-intentioned place in terms of parents being desperate to try and get some help for their children. But that’s where this comes from.
Adam Stirling [00:17:33] We have approximately four and a half minutes left. A couple of stories that we could discuss. Where would we like to go next?
Michael T. Mulligan [00:17:38] Sure. I think I can probably cover those both briefly. There are two other pieces of legislation that were introduced. One of them are some proposed amendments to the Wills and Estates and Succession Act. And those are intended to permit electronic wills, which seems like a very good idea in the current COVID-19 circumstances. And this would codify and create this concept of an electronic will, which could be witnessed by people electronically that aren’t physically present. And it’s following up on a ministerial order, Ministerial Order 161 that, at least on an emergency basis, permits the remote witnessing of wills. Ordinarily, you need to have two witnesses who are physically present. That, of course, may not be possible. If somebody is, for example, in a care home and you can’t have people going in there and we can’t tell somebody you can’t have a will without increasing the prospect that you’re going to need a will.
Adam Stirling [00:18:35] Yes.
Michael T. Mulligan [00:18:36] And so on an emergency basis, that’s been allowed with witnesses being remote. One of them must be a lawyer, and there’s sort of an interim measure. This would codify that and create a longer-term solution to it. So that seems to my mind like a good piece of legislation. I don’t expect there’ll be too much opposition to it. The other thing briefly, which I think is very problematic, is it’s Bill 11.
Adam Stirling [00:19:00] Yes.
Michael T. Mulligan [00:19:01] And this is the legislation which would go down the road of no-fault insurance. And there are certainly some really troubling elements of that, which I think deserve probably some more time discussing them.
Adam Stirling [00:19:14] All right.
Michael T. Mulligan [00:19:15] The basic principle is that it will prohibit you from suing if you’re injured by somebody in a car accident, and instead you’ll be at the mercy of, what they refer to it, honestly as, the corporation. That’s being ICBC, the corporation, (laughter) who will who will then make all the decisions for you and who is entitled and empowered to do things like deny you any compensation all at all if you don’t meet their requirements, provide prescribed information or do all kinds of other things. Basically, it will turn every motor vehicle accident into a WCB claim where you’re at the mercy of the corporation.
Adam Stirling [00:19:51] So we are reminded as ever, that good law and good public relations are often different things.
Michael T. Mulligan [00:19:57] Yes. So that one’s a. I think a very substantial worry and one that I think will deserve some further scrutiny. But on the upside, you should be able to get your will done without putting yourself in in harm’s way to accomplish that.
Adam Stirling [00:20:12] Now, you have helped us in the past to understand situations in which the Insurance Corporation of British Columbia may bring civil action against a driver who deviates from the the, now, what is it, it’s a marked departure from the reasonable standard of care observed by an ordinary, prudent driver. I know I have that wrong. It’s something akin to that, though.
Michael T. Mulligan [00:20:29] Yeah. I mean, there are there are provisions, at the moment, of course, you can sue somebody if they injure you and there can be as a result of carelessness, negligence right.
Adam Stirling [00:20:41] Yes.
Michael T. Mulligan [00:20:41]. And the idea of this legislation broadly will be to remove your ability to sue somebody who injures you through their carelessness. And instead, it won’t really matter whether you were careless or not. So, you can drive around without having that worry for yourself. And instead, the idea will be, we don’t care who caused the accident or whether somebody was careless or not. You or the careless person who hit you will be treated exactly the same way. And basically, you will go hand in hand to the corporation asking them to provide you care and assistance, and you will have little by way of real remedy if they don’t treat you in a fair and reasonable way. So, I suppose that the big picture here is you should ask yourself, based on the experiences you may have had with ICBC in the past, whether you would like to be in the future in a circumstance where they can treat you, pretty well any way they want, and you will be without remedy at all. Basically, ask yourself, do you think ICBC treats you fairly? If so, this legislation may be for you and it may also be for you if you’re somebody who is not a very good driver or somebody who, who may be inclined to drive in a careless way because of that will no longer much matter if this passes. So, there are really big concerns in this legislation, and I hope that they are considered carefully. No doubt we all, of course, all of us are worried about, you know, our health and COVID-19, all these things. But this will have potentially a major impact on, you know, thousands of people a year who can wind up in a pretty awful spot and will wind up with nothing they can do about it. And that’s really worrisome.
Adam Stirling [00:22:30] We will monitor the situation carefully. Michael Mulligan, thank you for your time, as always.
Michael T. Mulligan [00:22:34] Thank you so much for having me.
Adam Stirling [00:22:35] Legally Speaking, every Thursday during the second half of our second hour on the program here on CFAX 1070, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers.
Automatically Transcribed on June 25, 2020 – MULLIGAN DEFENCE LAWYERS