This week on Legally Speaking with Michael Mulligan:
Duress is a defence, sometimes referred to as an excuse, for the commission of a criminal offence.
The rationale for the defence is the idea of moral involuntariness.
These are the requirements for the defence:
- There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party.
- The accused must reasonably believe that the threat will be carried out.
- There is no safe avenue of escape. This element is evaluated on a modified objective standard.
- A close temporal connection between the threat and the harm threatened.
- Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
- The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy, or association.
Once the accused person demonstrates that there is an “air of reality” with respect to each element of the defence, the Crown would need to prove that the defence does not apply.
In the case discussed, the accused, and his brother, were assigned to the same unit in jail, along with a man known as Big Newf.
Big Newf demanded that the accused smuggle drugs into the jail. If the accused didn’t do this Big Newf, who had a reputation for violence, would harm the accused, or his brother.
Big Newf arranged for a surety to help the accused get bail and then the person acting as a surety had the accused swallow and insert drug packages into his rectum. The accused was then required to turn himself into the police to get readmitted to jail.
The accused did not think he had any safe avenue of escape because Big Newf, and his associates, had access to his brother who was still in jail.
The trial judge, and the Ontario Court of Appeal, both concluded that the Crown had not proven that the defence of duress did not apply.
Also on the show, the BC Court of Appeal upholds an 11-year jail sentence, for a man with no previous record, who plead guilty to trafficking in carfentanil.
The man had been selling drugs online and shipping the drugs via Canada Post. Online advertising for the drugs included statements such as “one of the premium Fentanyl vendors in Western Canada.”, “carfentanil … [w]hen used responsibly … is proven to be very safe”, and “we have the best stealth period”.
Finally, on the show, a BC Court of Appeal decision increasing the wrongful dismissal award in favour of an articling student who was fired by her principal is discussed.
The court described the lawyer’s conduct as “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinarily standards of decent behaviour.”
The fired student was awarded $118,934 in general damages, $25,000 in punitive damages, $50,000 in aggravated damages, and $10 for breaching an articling agreement.
An automated transcript of the show:
Legally Speaking May 20, 2021
Adam Stirling [00:00:00] It’s time for, Legally Speaking, joined by Michael Mulligan Barrister and Solicitor of Mulligan Defence Lawyers. Morning, Michael, how are you?
Michael T. Mulligan [00:00:07] I’m doing great. Always good to be here.
Adam Stirling [00:00:09] Lots to talk about on the show today. I’m looking. I see drug trafficking. I see duress. I see an acquittal of an accused person. What’s the story here? And does that say Big Newf.
Michael T. Mulligan [00:00:22] Big Newf, indeed. It’s never-ending.
Adam Stirling [00:00:24] What is Big Newf?
Michael T. Mulligan [00:00:26] I must say, unless somehow the Ontario Court of Appeal was able to work a beaver into the story, you could hardly imagine a more Canadian central actor, Big Newf. So, this is a case that just came out from the Ontario Court of Appeal upholding an acquittal for a man who is charged with trafficking drugs into a jail in Ontario. And there was no doubt that he trafficked the drugs into the jail or tried to. He acknowledged that he tried to do it. The jail was Central East Correctional Centre. And this man’s only defence, which was successful at trial and upheld by the Court of Appeal, was the defence of duress. And indeed, we have that defence in Canada, both in a section of the criminal code and at common law. And here’s a fact pattern involving Big Newf. So, the accused man who is described as somebody who was no stranger to jails, had been in and out of jail for the last seven years or so. But significantly, his brother wound up in jail for the first time and was on the same unit he was also on. The unit was, you guessed it, Big Newf. Big Newf, according to the accused, had demanded that the accused helped smuggle drugs into the jail and that if he didn’t do this, Big Newf would take it out on him or his brother, who was also in the same unit, the accused, said he took that seriously. He was familiar with Big Newf. They had witnessed him in the past to create makeshift weapons and assault other inmates. He told the judge about a previous occasion where he wanted to take over the role of being a cleaner. You said it’s a benefit on the unit and when the current cleaners didn’t give it up, he arranged to have those people assaulted. And he believed that Big Newf was associated with the Hells Angels. So not somebody to be trifled with.
Adam Stirling [00:02:26] Yes.
Michael T. Mulligan [00:02:27] So the accused said, look, what happened is Big Newf arranged for him to get released by providing a surety. And then the surety had him go and ingest a bunch of drugs and balloons and then turned himself into the police to get himself brought back into the jail. And indeed, he was coming back into the jail. And the drugs, which were secreted in various orifices of his body, were detected. And they put him into a segregation cell to monitor him, to see whether those things, the drugs would turn up. And then he believed one of the balloons burst and began, the accused did, yelling out that he did not want to die, burn, or blow up. And so that’s how the drugs were discovered on him. And so that brought the case to the issue of is that duress? And the way that works is that a judge needs to determine, first of all, whether there is an air of reality to the defence of duress, which would have a number of components to it. It would include, for example, there has to be a threat of causing harm to the accused or to a third party, the brother or him. A person must reasonably believe that the threat could be carried out. This was the one which was most argued about was there no safe avenue of escape? And that’s the one which produced much of the argument. But ultimately, the judge found in the Court of Appeal accepted that even though the man who tried to smuggle the drugs in could have tried running away or phoned the police, his view was, look, my brother is still there with Big Newf for the unit. Even if I escape, my brother may wind up being stabbed. And then there has to be other elements like proportionality and so on to what you’re doing. You couldn’t, you know, commit a murder on threat of somebody being assaulted, for example. And once an accused person shows that there is an air of reality to the defence, like there’s some elements of, or some evidence, of all of the required elements of it, it’s then over to the crown to prove, beyond a reasonable doubt, that one of the elements doesn’t exist. And in this case, the judge accepted the evidence of the man about his concern concerning Big Newf and given his previous experience with him, his use of violence and so on, and also accepted the evidence of a police officer who testified. That in that prison in Ontario, violence and injury were a daily occurrence and that guards were not capable of stopping that from happening and that indeed, if somebody went to the police, they would be viewed as a rat and would be subject to increased violence, which, again, the guards would be incapable of stopping.
Adam Stirling [00:05:21] Yes.
Michael T. Mulligan [00:05:21] And so based on all of this and the fact that the judge accepted the man’s evidence, despite an argument by the Crown that the story read like, “a recipe for other inmates to claim they were coerced into similar schemes”.
Adam Stirling [00:05:37] mhmm.
Michael T. Mulligan [00:05:37] The judge accepted, and the Court of Appeal upheld the acquittal, on that unique fact pattern, which included that element of the brother on the unit with the threatening Big Newf so that you couldn’t just say, you know, run away, or call the police for help, because if you did so, the evidence here was that Big Newf, or his associates would be capable of harming the accused brother. And there was nothing the guards at the institution were able to do to stop this daily pattern of violence there. And so, the defence of duress in Canada is alive and well, both at common law and in the criminal code. And this was a most recent example of how that can apply when somebody does something, which is and this is the rationale for it,.
Adam Stirling [00:06:24] mhmm.
Michael T. Mulligan [00:06:24] Sort of morally involuntary. Right. I don’t want to be blowing up or dying with drugs up my bum, but.
Adam Stirling [00:06:31] No.
Michael T. Mulligan [00:06:32] If I don’t do it, my brother’s going to get stabbed. And so here I am. And we don’t convict people on that basis. And indeed, we didn’t here.
Adam Stirling [00:06:41] An 11-year sentence reading, in our next story for the trafficking in carfentanyl. Upheld on appeal. Now, please correct me if I’m wrong. You’re the expert, not me. But 11 years for any drug offence seems quite excessive given what we normally see, is it not?
Michael T. Mulligan [00:06:57] Well, it’s a substantial sentence, there’s no doubt about that. And particularly here, you had an accused person who had no previous criminal record.
Adam Stirling [00:07:07] mhmm.
Michael T. Mulligan [00:07:07] Who pled guilty to the offence, who himself had an opioid addiction. But despite all of those factors here, the judge took into account some other aggravating factors, including the really serious nature of carfentanyl. It’s carfentanyl is many times stronger than fentanyl, as if that wasn’t dangerous enough.
Adam Stirling [00:07:29] mhmm.
Michael T. Mulligan [00:07:29] And here, the fact pattern involved the accused creating a dark web pages to sell fentanyl and carfentanyl, using the Tor network and then setting up ads to encourage people to come and purchase it, some of which had these comments in it. One was that they described he described his operation as, “one of the premium fentanyl vendors in western Canada” and then another tag line “Carfentanyl, when used responsibly, is proven to be very safe.”
Adam Stirling [00:08:01] So the word responsibly is carrying a lot of weight in that sentence.
Michael T. Mulligan [00:08:07] Yes, indeed. That was pretty aggravating. The guy, interestingly, interestingly, was accepting payment ultimately by Bitcoin, which there is a substantial Bitcoin accumulated selling drugs. He was taking them and selling them and shipping them by Canada Post Express Post. At the time, the judge said the Bitcoin, the fellow it accumulated, was worth $83,000 and by the time of trial had gone up to $239,000. That might have gone the other direction this week, apparently on Elon Musk’s comments on Bitcoin.
Adam Stirling [00:08:43] Indeed.
Michael T. Mulligan [00:08:43] But a fair bit of money. And the judge took into account, here, that the person who engaged in this highly lucrative endeavor, that he had put Canada Post employees at risk of grievous harm because, of course, having this stuff even touch your skin can cause extreme problems. And so, he was risking the health and well-being of Canada Post employees, using this online system to take orders and ship it. And then the judge also took into account what he found to be the just complete disregard for the life and safety of people all over the place. He was shipping these drugs all over the world to various places. He described it as a highly lucrative criminal endeavor with indifference to human life. And so, the result of that was an 11-year sentence that was appealed to the BC court of Appeal on various arguments, including that, hey, isn’t that language would be demonstrably unfit, like just, hey, isn’t that just way out of the range for these things?
Adam Stirling [00:09:51] mhmm.
Michael T. Mulligan [00:09:51] And no, indeed, the Court of Appeal took into account all of those factors, including his age. He was only 38. No record. He had a child. The guilty plea. Despite all of that, given the sophistication of the operation and just how dangerous the substances involved were, that 11-year sentence was upheld. And so, you know, we sometimes we talked about in the criminal law the concept of general deterrence, sort of the idea that other people might learn of the sentences imposed for some particular kind of wrongdoing.
Adam Stirling [00:10:25] mhmm.
Michael T. Mulligan [00:10:25] And thereby discourage other people from doing the same thing. And that’s a very substantial sentence, particularly for somebody with no previous criminal record. And I guess I can say if, if it’s not having this, that is to say sentences of that length are not having a general deterrence effect on people selling these substances, it’s hard to imagine what would. And maybe we need to scratch our head about whether sentences do indeed have that effect, because that’s a significant time in prison for selling some very dangerous material. I guess the only way to look at that would be people don’t think they’re going to be caught.
Adam Stirling [00:11:08] yeah.
Michael T. Mulligan [00:11:08] Or maybe they’re not flipping through the most recent Court of Appeal decisions or indeed listening to Legally Speaking.
Adam Stirling [00:11:16] All right. Let’s take a quick break here. We’ll continue with, Legally Speaking, Michael Mulligan from Mulligan Defence Lawyers as we get back right after this break.
Adam Stirling [00:11:24] Our next story I find to be a very interesting one, Michael, because it deals with an area of the practice of the practice of law itself, terms like an article student, ordinary persons might not be familiar with. Take us through this next one, because it’s there are some troubling elements here.
Michael T. Mulligan [00:11:41] You’re exactly right. They certainly are troubling. And I think a lot of bad judgement wrapped up in this case. But the way it works is if you want to become a lawyer, you need to, of course, go to law school, graduate, but you then aren’t immediately released on the public to begin practicing law. People who have finished law school need to then obtain what’s called an articling position, which is like an apprenticeship.
Adam Stirling [00:12:08] hmm.
Michael T. Mulligan [00:12:08] And it would ordinarily go on for about a year. And during the course of that articling time or apprenticeship, the articling student would do work under the supervision of a principal or of a senior lawyer who was supposed to give them some guidance and training. And then the student would also undertake a training course offered by the Law Society. It’s called the Professional Legal Training Course. And then he would write some exams to show that they’ve absorbed all of that. And ultimately the end of it, the Law Society would make a determination as to whether somebody was fit for call and admission or they have good character. Do they have the required training and skill and so on?
Adam Stirling [00:12:49] yes.
Michael T. Mulligan [00:12:49] To protect the public. So, you didn’t have somebody who was unscrupulous or dishonest or poorly trained out there doing real harm. And so, the particular case that is going to talk about is a case involving a one of these articling relationships where the law graduate got a job as an articling student at a law firm in Vancouver. And then, unfortunately, it looks like the thing started to go badly in terms of the relationship between the principal, the senior lawyer who was employing her and the student.
Adam Stirling [00:13:24] Yes.
Michael T. Mulligan [00:13:25] There might have been some bad judgement on the student’s part, including drinking too much at an office function and then complaining about her salary and a colleague, probably not smart.
Adam Stirling [00:13:35] nope.
Michael T. Mulligan [00:13:36] But that’s not that’s not the route to win friends and influence people. But then the principal who was employing her found posted online a blog, law blog. And the principal thought that the law blog had material on it similar to what the law firm had and thought somehow that was going to damage their business in some fashion. But then rather than asking her about that or some explanation or whether she created it or what the origin of that was, the principal decided to terminate the articling student in the harshest possible terms, accusing her of deceitful conduct, dishonesty, reporting her to the law society and then suing her.
Adam Stirling [00:14:22] Oh wow.
Michael T. Mulligan [00:14:23] Claiming she had engaged in improper conduct and theft of things. All of these just terrible allegations. And it resulted in the student, of course, losing her job there. Her marriage deteriorated. She couldn’t get other employment. She was living in her car for a period of time. It just ruined her life, basically. She wasn’t able to get another articling position without that she was not able to become a lawyer because you need to complete that term of sort of apprenticeship before you could do that. And so, it had just this really serious impact on her. And then when the law firm, in addition to firing her in that fashion, decided to sue her, it resulted in her bringing a counterclaim for wrongful dismissal.
Adam Stirling [00:15:09] Yes.
Michael T. Mulligan [00:15:10] Which succeeded. The law firms claim of, you know, theft and all these things went nowhere. Those were rejected by the trial judge. But the law student succeeded. And wound up with a very substantial award against the law firm. But the law firm didn’t know to leave well enough alone, decided to appeal again that decision to the B.C. Court of Appeal. And that then prompted a cross appeal by the law student saying, hey, I should have got punitive damages and he didn’t award it, didn’t award be enough by way of damages for what happened.
Adam Stirling [00:15:43] hmm.
Michael T. Mulligan [00:15:44] The law firm and the principles appeal were dismissed by the Court of Appeal, but then use this language describing how the principal, the senior lawyer, had acted, describing the conduct that he had engaged in as, “high handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.” That was, you know, hard to imagine harsher language out of the Court of Appeal.
Adam Stirling [00:16:12] Indeed.
Michael T. Mulligan [00:16:13] And then increased the amount of damages awarded by $100,000, taking into account the fact that this woman is the articling students’ ability to complete her articles and become a lawyer was stopped. She never hasn’t been able to complete that or practice. So, she was awarded the Court of Appeal, increased the damages by $100,000 for that, and then also added on an award of $25,000 by way of punitive damages on the basis that they found that that conduct was high end and malicious, arbitrary and all those various things which would justify punitive damages. And so, I don’t know I guess there a few takeaways from this really unfortunate state of affairs? Right. You know, first of all, it’s I’ve got to say, very disappointing as a member of the legal profession that, you know, somebody would engage in behaviour found to have been malicious, arbitrary, reprehensible, and so on. That’s really not an acceptable state of affairs.
Adam Stirling [00:17:20] mhmm.
Michael T. Mulligan [00:17:21] And the other takeaway, I must say, having read this entire account of this unfortunate relationship, is the lack of perhaps judgement in terms of continuing to pursue this thing in court, right. Not only did the law firm and the senior lawyer fire this articling student in the way the Court of Appeal has described there, you know, claiming that she was deceitful and dishonest and all of this, but then in addition, suing her and then having failed in that effort at trial, carrying on to the Court of appeal. And I must say, just reading the entire exercise causes me to shake my head about the wisdom of how this entire thing was dealt with from start to finish. You know, I’ve got to say, on any given day, some of my time is occupied giving advice to people about when they should not be pursuing things in court.
Adam Stirling [00:18:21] Yes.
Michael T. Mulligan [00:18:22] You know, lawyers have a professional obligation to, you know, I think to do that and not pursue claims that perhaps don’t have merit. But quite beyond that, you would have hoped that somebody would have provided some counsel to the senior lawyer in this case and the law firm about the wisdom of it continuing to pursue the fashion, to pursue something like this all the way up to the Court of Appeal, because the result of that is now this Court of Appeal decision describing the conduct in that way. And, you know, it just strikes me that this the entire affair is demonstrative of some very bad judgement in terms of not only handling, appropriately, the challenges with somebody who would be in a vulnerable position, like an articling student. But then to carry on with, you know, reports to the Law Society, Civil Claims for theft and all of this, it just strikes me as really unfortunate. So, you know, hopefully other members of the profession are carefully reading the judgement from the Court of Appeal and hopefully provide some guidance to you and everything that you do, try to treat people with some higher degree of respect. And bearing in mind, it seems to me, the just real big power imbalance that would exist in that kind of a relationship, right?
Adam Stirling [00:19:54] Yes.
Michael T. Mulligan [00:19:55] You know, the somebody who’s an articling student working for a senior lawyer, you know, they’re dependent on the person, you know, to be able to complete their professional training. And as we saw in this case, particularly where there are allegations made of deceit and dishonesty and so on, it’s really not hard to imagine how that could be, you know, devastating to a young person trying to get going in the in the profession. And as we saw here, it just completely derailed this person’s ambitions and it cost her, her marriage and employment and all of that. So, you know, I’m sure the damages will go some way down that road. But to repair that. But boy, oh, boy, what an unfortunate tale of, I think, bad judgement from start to finish.
Adam Stirling [00:20:52] Indeed, Michael Mulligan. We always appreciate the benefit of your knowledge and insight on these and all other matters. Thank you so much. Until next week.
Michael T. Mulligan [00:20:59] Thanks so much for having me. Stay safe and always I have a great time doing it.
Adam Stirling [00:21:03] Absolutely.
Automatically Transcribed on May 20, 2021 – MULLIGAN DEFENCE LAWYERS