This week on Legally Speaking with Michael Mulligan:
Bill C-21 proposes various amendments to the Criminal Code and Firearms Act to restrict gun ownership.
One part of the legislation is a proposal to freeze the sale or transfer of handguns. This has already had the unintended consequence of causing handgun sales to skyrocket in anticipation of the possibility of sales being stopped.
As currently drafted Bill C-21 includes other provisions that would have unintended consequences. These include various automatic and mandatory provisions that would prohibit people from possessing firearms if there are ever subject to a protection order or engage in an “act of domestic violence”.
Protection orders can take many forms. Some protection orders can be obtained “ex parte”. This means that the person against whom the order applies was not present for the application and did not have an opportunity to make submissions to a judge about it.
Automatically prohibiting someone from continuing to possess firearms without affording an opportunity to attend a hearing or challenge the decision is not procedurally fair and would almost certainly have intended consequences.
The proposal to impose automatic prohibitions on firearms ownership based on a person engaging in an “act of domestic violence” is also problematic. This term is not defined in the legislation. Pursuant to the Family Law Act in British Columbia, family violence has been defined to include things inconsistent with the ordinary meaning of violence.
Pursuant to the Family Law Act, family violence includes “unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy” and “intentional damage to property”.
If the undefined term in the legislation was interpreted in a way consistent with the Family Law Act, automatic firearms prohibitions could flow from someone causing some minor damage to property or unreasonably restricting the “financial autonomy” of a spouse.
Much like with mandatory minimum sentences, while automatic and mandatory provisions are politically catchy, they fail to consider endlessly variable human affairs. Discretion and judgment are required to prevent unintended consequences.
Also on the show, the impact of the ICBC no-fault motor vehicle insurance scheme on the case of a protester who was injured when the ladder he was sitting on collapsed is discussed.
The ladder in question was attached to a trailer that was positioned on a highway to block access to a ferry terminal. A person who was stuck in the resulting traffic jam removed a piece of wood that was attached to a rope that was attached to the ladder. A few minutes later the protester, who remained at the top of the ladder to make it more difficult to remove the trailer from the road, fell to the ground when the ladder buckled and collapsed.
A foundation of the no-fault insurance scheme in British Columbia is a provision in the Insurance (Vehicle) Act that prohibits people from suing for injuries they suffer that is “caused by a vehicle arising out of an accident”.
The term “vehicle” is defined to include a trailer.
As a result, the injuries sustained by the protester may therefore have arisen out of an accident caused by a vehicle: the trailer with a tall ladder affixed to it.
The flip side of this is that the injured protester may be able to claim no-fault accident benefits from ICBC.
Finally, on the show, a Court of Appeal decision concerning the quashing of a search warrant for video surveillance footage from a Hells Angels clubhouse is discussed.
A transcript of the show:
Legally Speaking June 16, 2022
Adam Stirling [00:00:00] Time for Legally Speaking. Joined by Michael Mulligan from Mulligan Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:06] I’m doing great. Good to be here.
Adam Stirling [00:00:08] I really enjoy having you on the show, Michael, because you have an uncanny way of breaking down exceedingly complicated legal issues in common-sense ways that help all of us understand these situations. And also, you as you remind us, the law is constantly being refined, constantly changing in terms of both statutes being passed and new interpretations by the courts. We have some interesting cases on the docket this week, including no-fault insurance coming up. But what’s first on our agenda?
Michael T. Mulligan [00:00:35] Well, I should say that generally one of the things which is, I think, great about the common law, right, which we enjoy, is that generally, legal principles are going to be in accordance with, how you would hope, a reasonable person who thoughtfully considered something would come to a decision. So that’s actually one of the beauties of the law. I mean, of course, things are complicated, but often when you sort of bear down on them, it’s not as bad as it might seem when somebody is using some Latin or some, you know, complicated language or something. One thing I thought I just mentioned before I get to the first topic I had planned was it was a question that was just asked by somebody about property rights.
Adam Stirling [00:01:19] Yeah,.
Michael T. Mulligan [00:01:19] And the charter.
Adam Stirling [00:01:20] Yeah.
Michael T. Mulligan [00:01:20] The Constitution, in the United States, they actually have protection for property rights in their constitution. It was part of the Fifth Amendment, which passed in 1791, and it provides that no person shall be deprived of life, liberty, or property without due process of law. Nor shall private property be taken for public use without just compensation. In Canada, we have none of that. And that was a debate at the time when the charter was introduced whether there should be some protection for property rights. And one of the interesting ways of that’s actually going to play out right now, are the various efforts being made to seize assets of Russian oligarchs or what are believed to be assets of Russian oligarchs. You’ll see news stories of governments scooping up super yachts.
Adam Stirling [00:02:10] Yeah.
Michael T. Mulligan [00:02:10] And various things. And so, in the United States, those efforts to scoop stuff up would be subject to the Fifth Amendment of the United States Constitution. And so there would be an assessment as to whether they could be, in fact, taken, sold, and used for some other purpose, as opposed to just temporarily frozen. Right. Like, you’re not, going on your super yacht as opposed to discussions of we want to take sell the superyacht and send the money to the Ukraine. And in Canada there’d be a much freer hand to do those kinds of things, even without any kind of a hearing, because we don’t have any constitutional protection for property.
Adam Stirling [00:02:48] hmm.
Michael T. Mulligan [00:02:48] And so whether you’re a Russian oligarch or a very large yacht owner with a Russian accent or somebody who’s trying to do something much more modest with property, we just don’t have that protection in Canada. And unfortunately, many, many times it seems these days that the assessment as to whether a law should be passed doesn’t seem to be an assessment of whether it’s a good idea, just fair or wise. Often now the debate becomes, is something constitutional, like can you possibly get away with it? Which to my mind is kind of like setting the dose of medication by figuring out what would kill somebody and then backing it off just a little bit.
Adam Stirling [00:03:32] Nope. Still dead. Yep. Keep going down the line.
Michael T. Mulligan [00:03:34] No, that didn’t work.
Adam Stirling [00:03:35] yep.
Michael T. Mulligan [00:03:35] Hey, they survived. That’s what we should print on the bottle. You would hope there’d be a bit more caution used for that, but so it is. So, one of the things I wanted to talk about was a bill that’s gotten some, a federal bill, that’s gotten attention. Bill C 21.
Adam Stirling [00:03:52] Mm hmm.
Michael T. Mulligan [00:03:52] Which is a bill dealing with further regulation of firearms. And it’s, it’s an interesting read, and it’s an interesting read in the context of some other efforts that are being made federally to eliminate mandatory minimum sentences. We’ve talked about that topic before.
Adam Stirling [00:04:12] yeah.
Michael T. Mulligan [00:04:12] And how when you design a minimum, you’ve got something or other in your mind and you think, well, we have to always harshly deal with this. But of course, you know, human realities are endlessly complicated and sometimes you wind up with completely undesirable results.
Adam Stirling [00:04:27] Yeah.
Michael T. Mulligan [00:04:27] Like, one of the things we’ve talked about before, for example, is we used to have a mandatory minimum for possession of a, handgun with readily accessible ammunition. And we used to have, it was a two-year mandatory minimum sentence, and I have this distinct memory of this World War Two veteran with a cane and all of his medals repeatedly shuffling into remand court because for some reason, the police found the Luger he took off with a German soldier at the end of the Second World War.
Adam Stirling [00:04:54] Oh, yeah. I remember that story.
Michael T. Mulligan [00:04:55] with bullets in the Kitchen drawer.
Adam Stirling [00:04:56] Yeah.
Michael T. Mulligan [00:04:57] And the crown, seeking a two-year jail sentence for this octogenarian who came in with a cane, and it was only after multiple appearances, I think it became so embarrassing the prosecution ended. But, you know, at the moment, we’ve got an effort to repeal some of these mandatory minimums. But at the same time, in this the gun legislation dealing with firearms, there is sort of a similar theme to some of the provisions that are in there and, sometimes I refer to as sort of the law of unintended consequences. That bill has already generated, of course, some controversy because telling people that you were going to in the future prevent people from purchasing handguns had the result you probably should have anticipated, which was that every person and their dog was interested in, the handgun flooded into every gun shop and bought up.
Adam Stirling [00:05:47] Yep.
Michael T. Mulligan [00:05:47] Every handgun that was for sale in the country.
Adam Stirling [00:05:49] Yep.
Michael T. Mulligan [00:05:49] Not a lot of foresight there.
Adam Stirling [00:05:51] No.
Michael T. Mulligan [00:05:52] So that’s been documented. But there are a couple of other provisions in the bill that I think are worth pointing out that cause me a little bit of concern, just knowing how these things can work. And one of them is that there are these provisions, in here that you sort of use mandatory language, kind of like a mandatory minimum. But in this case, they are provisions which would provide for automatic prohibitions on people having firearms in various circumstances. And again, when you talk about automatic things, you have one thing in your mind, right? Like, for example, you know, the legislation talks about people that are subject that might have committed an act of domestic violence can be automatically prohibited from possessing firearms. And of course, we all might have on our mind what might be intended by that, right or some violent, dangerous person. Of course, you don’t want them having guns. That’s going to be a potential tragedy. But what is that? Right. And domestic violence, of course, can run the entire gamut. And in B.C., for example, in B.C. of the B.C. Family Law Act, which defines the term family violence.
Adam Stirling [00:07:00] oh yeah.
Michael T. Mulligan [00:07:01] And I think domestic violence is not defined in Bill C21, family violence in British Columbia includes the unreasonable restriction or prevention of a family member’s financial or personal autonomy.
Adam Stirling [00:07:15] huh.
Michael T. Mulligan [00:07:15] So somebody who’s restricting somebody’s financial autonomy unreasonably.
Adam Stirling [00:07:19] Can’t hold the gun.
Michael T. Mulligan [00:07:20] Committed.
Adam Stirling [00:07:20] Wow.
Michael T. Mulligan [00:07:21] Family, family violence or the other, another element in BC, a way you commit family violence in BC is the intentional damage to property. So, you know, a woman gets angry and, you know, at an argument and smashes a vase or something. Right.
Adam Stirling [00:07:39] hmm.
Michael T. Mulligan [00:07:40] Well, is that what we had in mind when we thought there should be an automatic prohibition on somebody possessing a firearm? Probably not. And so, I think the real takeaway there is we have to be careful when we insert provisions that are mandatory and don’t serve any exercise of judgement or discretion. The bill also provides for these automatic prohibitions occurring in the event that somebody becomes subject to a protection order.
Adam Stirling [00:08:07] Hmm.
Michael T. Mulligan [00:08:08] And that’s interesting. It’s could depend on what exactly is viewed as a protection order, because that can be anything from, like, a peace bond that can be put in place under the criminal code where a person’s going to reasonable grounds to fear that they’re going to be injured by somebody.
Adam Stirling [00:08:22] Mm hmm.
Michael T. Mulligan [00:08:23] But you can also have things which are referred to as protection orders. They can be what are called ex parte, that means like an order made without the person being notified of it. And so, you can have a circumstance where a person goes and applies for, in a family law context, a protection order against somebody else. Like, I don’t want this person having contact with me. And the person against whom the protection orders issued may have had no opportunity to say anything about that or respond to it. And so, if you have that combined with what’s currently in Bill C 21, you could wind up with somebody who is subject to that kind of an order where they’ve had no opportunity to respond to it. What’s being alleged here may be accurate or inaccurate, and you have an automatic result. And as it’s currently drafted, the only exceptions to those automatic things are if a firearms officer is persuaded that the person requires a firearm in order to hunt and feed themselves, or it would deprive them of any other meaning, any other realistic opportunity for employment. So very narrow grounds. So again, there are provisions in here which I think require some careful thought because otherwise we may be going down the road that we’re trying to retreat from upon the mandatory minimum sentence front by creating unintended consequences that may produce needless litigation and results that we just didn’t have in mind when we passed legislation trying to deal with a legitimate concern.
Adam Stirling [00:10:01] Indeed, Legally Speaking here on CFAX 1070, I think that’s a good time for our first break. We’ll take a quick break. And right after this, we’ll talk about the old growth blockade issue that we reported on earlier this week. British Columbia’s no-fault insurance. What do the two have in common, if anything? That more coming up.
Adam Stirling [00:10:20] All right. Back on the air here at CFAX 1070, Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Up next on the agenda, Michael, another interesting potential complication now that we in British Columbia having no fault insurance system. And how can that potentially relate to the blockade we saw on the Pat Bay earlier this week?
Adam Stirling [00:10:39] I think we can probably put this in the category of one of the dangers of going to law school is that then everything you see, you have the sort of legal amounts of.
Adam Stirling [00:10:49] Oh, no.
Michael T. Mulligan [00:10:50] That is complicated. Oh, no.
Adam Stirling [00:10:51] Endless anxiety. Yeah.
Michael T. Mulligan [00:10:53] That’s right. So, I was watching with interest the video of the old growth protesters who were blocking the Pat Bay highway access to the ferry terminal the other day.
Adam Stirling [00:11:06] Yep.
Michael T. Mulligan [00:11:07] I guess, they somehow thought that was going to persuade people of their cause. But leaving that assessment aside, the way in which they were blocking it was interesting, because the there was a fellow who was, if you haven’t seen any of the pictures or video of it, the protesters appeared to have positioned a trailer across the highway and then attached to the trailer was a tall aluminum ladder at the top of which was, kind of a makeshift chair, that a protester climbed up and was sitting on and attached to that were some ropes and pieces of wood. Not exactly an engineering masterpiece. I’m sure when engineers were watching this thing, they had a different reaction to my legal reaction to it, probably. Oh, no.
Adam Stirling [00:11:54] I’ve got emails from I’ve got emails from engineers, and you are absolutely correct. There was a lot of “oh no’s”
Michael T. Mulligan [00:12:00] So the some of the frustrated motorists that these protesters were blocking, one of them came out there and broke off a piece of wood, trying to clear the path to which a piece of rope was attached. And then a few minutes later, this rickety aluminum ladder bent over, causing the protester sitting at the top of it to crash onto the road, injuring the protester. And so, my analysis of that looking at it, tied in with the operation of no-fault insurance in British Columbia. And you might think, how? why? Well, the way that works is that in order for us to have no fault, you need to prevent people from suing,.
Adam Stirling [00:12:42] hmm.
Michael T. Mulligan [00:12:42] If they are injured.
Adam Stirling [00:12:43] yeah.
Michael T. Mulligan [00:12:43] In car accidents. Otherwise, you would just say, well, that’s interesting, I’m suing you anyways. And so, what British Columbia did is that the amended the Insurance Vehicle Act to provide that a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident. Now, vehicle is defined in that act, means, is defined to include a trailer. And so, when you put those things together from the perspective of the person sitting on the chair on the top of the trailer, the trailer would be a vehicle and there would be a real issue if that trailer, the person sitting at the top of the ladder who collapsed onto the road and apparently was injured,.
Adam Stirling [00:13:32] mmm.
Michael T. Mulligan [00:13:33] Were to try to sue somebody for that injury because there would be a real issue about whether that was an accident caused by a vehicle arising out of an accident. Because the trailer is a vehicle, you’ve got the ladder attached to the trailer, the chair in the top of the ladder. And so, is this an accident? The rickety thing falling over, is that caused by a vehicle arising out of an accident? And if so, one of the implications would be the person who fell onto the road would not be able to successfully sue somebody who might have contributed to that injury or accident.
Adam Stirling [00:14:12] huh. Wow.
Michael T. Mulligan [00:14:12] The other side of it, is if this is a caused by a vehicle arising out of an accident, to wit the chair tipping over the ladder, bending and falling to the highway. You could have the circumstance where that protester may be free to collect no fault benefits on the basis that they were injured in an accident caused by a, right a, caused by a vehicle arising out of an accident. And so, if it was caused by, for example, the failure of the ladder attached to the trailer, that may be a vehicle. And if that’s what and there was an accident and there was some injury arising from that. We could have the again, law of unintended consequences where whereby we may be paying for the losses suffered by the ladder sitting protester on the basis of how our no-fault scheme is drafted in British Columbia.
Adam Stirling [00:15:09] huh.
Michael T. Mulligan [00:15:09] So there it is. One of the a must say, the other impact of going to law school. It also occasionally ruins movies when there’s some legal scene, and somebodies, oh, my goodness, that’s just not how it works.
Adam Stirling [00:15:21] No, no,.
Michael T. Mulligan [00:15:22] I probably, it’s probably worse being an engineer, I’m sure as they sit there, hearing sounds go through space and things do things they never could do. I’m sure they’re sitting there going, this is just not real. This is just not real. But in any case, we may find that our no-fault insurance scheme is engaged by this guy falling off the top of his ladder in the middle of a Pat Bay Highway.
Adam Stirling [00:15:44] Interesting. Now, I’m trying to think of the exceptions, though, where no fault would not shield someone from liability. And I know that there is a threshold involving, I’m not sure if it’s the marked departure of the standard of care of a reasonably prudent person. That’s from another matter that you and I discussed.
Michael T. Mulligan [00:15:58] mm hmm.
Adam Stirling [00:15:59] There are there are criminal thresholds that can be breached, though, where litigation and liability are possible, are they not?
Michael T. Mulligan [00:16:06] You’re correct. So that marked departure of the standard of care of a reasonably prudent driver is the test for dangerous driving.
Adam Stirling [00:16:14] Okay.
Michael T. Mulligan [00:16:15] Under the Criminal Code.
Adam Stirling [00:16:15] Okay.
Michael T. Mulligan [00:16:16] And one of the exceptions to that general prohibition saying you can’t sue, is if another person is convicted of a criminal offence related to the accident.
Adam Stirling [00:16:26] I see.
Michael T. Mulligan [00:16:27] Like if you’re injured by a drunk driver who is convicted criminally, then you may be able to sue. And so that’s another analysis of this whole thing. If they were ever charges against somebody that then caused this, that may negate the general prohibition on suing, which then leads to a whole other level of, you know, do you have lawful authority to try to remove the persons blocking the highway? And the answer to that, I must say, is also ambiguous. The person does have authority to, for example, arrest somebody they find committing a criminal offence. Right. A citizen can. Right.
Adam Stirling [00:17:06] yeah.
Michael T. Mulligan [00:17:06] If you see somebody committing a criminal offence, like obstructing the highway to prevent people from going about their business to try to get them to save trees.
Adam Stirling [00:17:13] Yes.
Michael T. Mulligan [00:17:14] You would have the lawful authority to arrest people, engage that behaviour. Sir, you’re under arrest. I’m going to hold you and contact the police and turn you over to the police. Now you’d have to think about whether you want to be in a wrestling match with some logging protesters. On some roads somewhere.
Adam Stirling [00:17:32] mm hmm.
Michael T. Mulligan [00:17:32] But the law is such that you’re not powerless. We don’t require people to just sit there and watch criminal activity go on. If, for example, there aren’t police reasonably available. What happens if the logging protesters are blocking some highway in the middle of rural BC? You know, you don’t need to, people don’t need to be at their mercy for, you know, an hour while the RCMP officer drives over there to clear the road. There is authority under the criminal code for somebody who’s not a peace officer to, for example, arrest somebody. But you’d have to, you know, of course, consider the wisdom, not only the legality of doing something. And so, you know, there would be a potentially complicated legal analysis as to whether you would be permitted to take physical action to try to, for example, arrest somebody or clear the blockade on the highway. That would also be a matter of ambiguity. Much like the analysis as to whether this person bending over in the ladder and crashing down on the road, is that caused by a vehicle arising out of an accident? Arguable, that’s ah, one of the beauties, again, of the common law. You know this. Somebody wants to push that point. We’ll get a decision on it eventually. And we’ll all know whether tipping over an aluminum ladder that you set up in the middle of the highway attached to the back of a trailer is an accident caused by a vehicle arising out of an accident.
Adam Stirling [00:19:00] I wonder what the legal test will be called if they create one. One can only imagine. We have two and a half minutes left in today’s segment, Michael.
Michael T. Mulligan [00:19:11] Sure. Last case I think I can deal with briefly is a decision out of the BC Court of Appeal dealing with an application to quash a search warrant for video footage from a Hells Angels clubhouse. And it’s a good example of how search warrants work. So that’s why I thought it’d be a case worth mentioning. And it was a case where there was a car accident, a jeep went through a red light and the driver got out and ran away. Police looked at the jeep and they found loaded handguns and liquor and the passenger still sitting there with white powder around his nose. And so, to investigate this, the police applied for a search warrant to search and seize video recordings from a Hells Angels clubhouse that the Jeep had left from recently. And they got a search warrant, and the search warrant was challenged, successfully. And it’s a good example of what is required to get a search warrant. To get a search warrant, the police need to persuade a justice that they have reasonable grounds to believe that there’s going to be evidence of an offence in the place they wish to search. So, in this case, they wanted the video recordings.
Adam Stirling [00:20:20] Yes.
Michael T. Mulligan [00:20:21] And so when a search warrant like that is challenged, the assessment is whether there would be reasonable grounds, which are more than like a hunch or a suspicion that you’re going to find evidence of the offence you want to investigate in the place you want to search. And here, both the judge reviewing a search warrant, and then recently the Court of Appeal, concluded that that just didn’t exist here. And the fact that the RCMP wanted to get this video recording amounted to nothing more than a speculation that there might be some video recording of these men outside the clubhouse using cocaine or, you know, handling these firearms. And they found that there just wasn’t enough to meet that test of having reasonable grounds to believe that that would be that kind of evidence would exist. And so, the result is that the search warrant for the video from the clubhouse was quashed and it was found that that would be too intrusive, and the police won’t be permitted to use that.
Adam Stirling [00:21:24] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday here on CFAX 1070. Michael, your versatility, and depth of knowledge, as always are greatly appreciated, until next week.
Michael T. Mulligan [00:21:37] Thanks so much. Have a great day.
Adam Stirling [00:21:39] All right. Bye now.
Automatically Transcribed on June 17, 2022 – MULLIGAN DEFENCE LAWYERS