This week on Legally Speaking with Michael Mulligan:
The previous Conservative federal government added numerous mandatory minimum jail sentences to the Criminal Code and Controlled Drugs and Substances Act. While they have failed to deter crime, they have contributed to the disproportionate number of indigenous and Black Canadians in jail.
Indigenous Canadians represent approximately 5 percent of the population but are 30 percent of federal prisoners. This is double the percentage from twenty years ago.
Black Canadians represent 3 percent of the population but are 7.2 percent of federal prisoners.
Recently introduced Bill C-22 will eliminate 14 of 64 mandatory minimum sentences for everything from possessing tobacco without excise tax stamps, to various firearms and drug offences.
Since the mandatory minimum sentences were introduced, many of them have been struck down as being unconstitutional because they resulted in sentences that were found to be “grossly disproportionate”.
Almost nobody knows what the patchwork of mandatory minimum sentences are, or when they would apply, making them completely ineffective at deterring crime.
Criminal Codes have had to add charts that run on for hundreds of pages to clarify what sentences apply to various offences. Not many people are consulting the charts before deciding if they will attempt to get away without the required stamp on their tobacco products.
Also on the show, a Notice of Civil Claim commencing a lawsuit against four former Esquimalt Police Officers is discussed.
The claim is being brought by a woman who, in 1988, was recruited to be a police informant while she was in Grade 9 at Esquimalt High School. She alleges that she was subjected to a range of abuse by the police officers including numerous sexual assaults. She further alleges that the police officers directed her to engage in activity including making false reports to Crime Stoppers.
The Notice of Civil claim indicates that a 1995 investigation by the Victoria Police Department concluded that the woman was an honest and reliable individual and that many of her allegations were corroborated by other witnesses and or supporting records. It indicates that the woman suffered overwhelming emotional and psychological terror and was unable to complete her testimony at a resulting inquiry.
While the allegations in the Notice of Civil claim have not been proven in court, they raise significant public policy questions including the appropriateness of permitting minors to be paid police informants given their vulnerability to abuse.
If police officers were utilizing a paid informant to make false reports to Crime Stoppers, this is also of serious concern. Anonymous Crime Stoppers reports can serve as the basis for search warrants being issued, and police investigations to be undertaken. People making anonymous reports can also be paid. The system is clearly susceptible to abuse of the kind alleged.
As discussed on the show, one of the former police officers accused of wrongdoing has been the subject of judicial criticism for the reliability of his evidence in court.
Finally, differences between the Canadian and US jury systems are discussed in the context of a recently overturned murder conviction in Washington state. In the US, unlike in Canada, jurors are both permitted to discuss what occurred during deliberations and are subject to routine questioning before being allowed to serve on a jury.
An automated transcript of the show:
Legally Speaking Dec 9, 2021
Adam Stirling [00:00:00] It’s time for, Legally Speaking, joined, as always, by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good 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, talking about the issue, and it’s a controversial one that you and I have discussed in the past. Mandatory minimum sentences, a bill being considered by Parliament that could repeal various instances of that policy.
Michael T. Mulligan [00:00:26] That’s right. So, this piece of legislation is Bill C-22, which was introduced, just introduced, by the government, and it would do a number of things. It would, first of all, repeal 14 of 64 mandatory minimum sentences found in the Criminal Code, dealing with both criminal offences and then also offences related to drugs. And I think that can only be viewed as a positive thing. Many of the conditional sentences were introduced by the last Harper Conservative government, and they’ve essentially been a complete failure, in terms of their desire to deter crime. And you need to ask yourself this question. What sections of the criminal code have mandatory minimum sentences? What are they? How are they going to be effective at deterring you when you have, I’m sure, no idea what those things are or what the sentences might be?
Adam Stirling [00:01:30] hmm.
Michael T. Mulligan [00:01:30] One of the sections being repealed, for example, is for a person who’s found on a second occasion with raw leaf tobacco of more than ten kilograms, that doesn’t have the required excise stamp on it. Until this bill passes, what do you think the minimum sentence is if you’re caught twice with more than ten kilograms? Well, that would be 90 days in jail, and you can only measure how effective is that when you have no earthly idea that it exists? If that’s the case with most of these things.
Adam Stirling [00:02:01] Hmm.
Michael T. Mulligan [00:02:01] I mean, I do this for a living.
Adam Stirling [00:02:03] Yeah.
Michael T. Mulligan [00:02:03] And I can tell you, I could not name the sixty-four different offences for which there’s a mandatory minimum sentence. And most people doing this for a living could not do it either.
Adam Stirling [00:02:12] No.
Michael T. Mulligan [00:02:13] In fact, as a result of this coming in, one of the things which has been added to both of the common law, I think all three of the commonly used criminal codes in the country, certainly Tremors and Martins have it. Is a whole new section that tries to figure out what the possible sentences would be for various different offences. So, it’s gotten so complicated. There’s had to be, and it goes on for about fifty pages trying to figure out what might be the minimum sentence applicable to various offences. And so, what’s happened over time is that courts have been dealing with these things one at a time and often striking them down as being unconstitutional, which can occur if the resulting sentence would be grossly disproportionate, either for the offender or some other reasonable hypothetical circumstance. And so, we’ve been left with this complete patchwork of some things that are mandatory minimum sentences. Some things don’t what have mandatory minimums, and some provinces differ from others because different courts of appeal have come to different conclusions. And overall, they are just resoundingly, clearly ineffective. And people who do this for a living, I think, would be able to tell you that with virtual unanimity. And one of the other undesirable effects that’s pointed out is that we have had the continued and growing disproportionate number of both First Nations people and other visible minorities in jail. And one of the reasons for that, is that despite various efforts to try to reduce that and recognize some of the systemic factors that lead people to do things like possessed relief tobacco without the required excise stamp, even if you recognize those things for an individual, we still have a mandatory minimum sentence, off to jail they go. And so that’s one of the other effects. Another very interesting element of Bill 22, is that it mandates that police officers for drug offences give consideration at least, to whether they should be dealt with. This is like simple possession, what they have in mind here would be the drug addicted person who’s found with some small amount of, you know, drugs in their pocket, whether they should be dealt with in some fashion other than a criminal charge. It asks police officers to consider whether those things might be more appropriately dealt with by some other form of intervention. It doesn’t require that, but it requires that they consider whether some other approach would be more appropriate. Bearing in mind some principles that are set out there, such as the idea that problematic substance use should be addressed primarily as a health and social issue. And that piece of legislation has been getting criticism from, I think, the NDP saying, well, it doesn’t go far enough. There should be removing the criminalization of, you know, the person who’s got some personal use amount of drugs to which they are addicted. Should we be in any circumstances prosecuting the person, because of course, it just doesn’t work. If you, saying something was illegal, causes people not to get it. Well, the drug problem would have been solved long ago. It just doesn’t have that effect. And so that’s another interesting piece of the legislation. And so, you’ve got on one side of the spectrum, the Federal Conservative Party saying all this is soft on this and that. And then you’ve got the NDP on the other side saying this doesn’t go far enough. So maybe there’s some indication there of a compromise if everyone is unhappy about it, but a
Adam Stirling [00:06:05] truly Canadian initiative, yes.
Michael T. Mulligan [00:06:07] That’s right. But I must say, broadly speaking, we’re going to do more justice by giving judge’s discretion to determine. And what is an appropriate sentence, rather than trying to envision what would be a minimum suitable for all people because human affairs are just endlessly complicated, and discretion is broadly good. So, I think it’s a good start. The remaining mandatory minimums will be dealt with one at a time by courts as they consider whether the resulting sentence would be grossly disproportionate and so whether they survive constitutional challenge. But at least this will simplify things by getting rid of a number of these things that have just proven to be completely ineffective at deterring crime.
Adam Stirling [00:06:53] All right. Next up on the agenda, I, this was largely before my time, but those who have followed public affairs in the Victoria area since the late nineties into the early 2000s will remember a seemingly no end to controversies that took place at the Esquimalt Police Department. This was before the province essentially forced the amalgamation of the Esquimalt and Victoria police departments, creating the newly amalgamated entity that we have today. I’m noticing that one of those matters that triggers memories from a decade and a half or more goes back in the news. What’s happening?
Michael T. Mulligan [00:07:28] Indeed. So, this is a, just filed, civil claim being brought by a former teenage paid informant of the Esquimalt Police Department. And in this civil claim, this person who began her interactions with the police when she was a Grade nine Esquimalt High School student, alleges that she became a paid informant of the Esquimalt Police Department. Provided information about people who had drugs and other things in their possession.
Adam Stirling [00:08:03] Hmm.
Michael T. Mulligan [00:08:03] And I should say paid informant is not a job that you get by going on to Monster.com or something and applying for a job. The way that ordinarily happens, as she alleges here, is you’ve got somebody whose trouble, she’s obviously a troubled teenager arrested for theft.
Adam Stirling [00:08:22] Yes.
Michael T. Mulligan [00:08:22] And often what happens is that the quid pro quo for beginning to act as an informant for the police would be, hey, your shoplifting charge can go away if you’ll give me some information about right who you know might have drugs in their locker.
Adam Stirling [00:08:39] Yes.
Michael T. Mulligan [00:08:40] And then it can progress. And the other thing that happens in that kind of a relationship is very quickly the person can wind up being sort of dependent on the police, because first of all, they may be dependent on them for money or they may be dependent on favours to stay out of jail, for example, or stay out of trouble. Or ultimately, you can wind up in a spot where the person’s fearful that if they are known to be somebody who’s providing information to the police, they could be in danger from people who’ve been providing information about. And so, this person alleges that over time, her relationship with four police officers working at the Esquimalt Police Department is that, then was, became extremely abusive, including sexually abusive. She alleges that she was required to perform sexual acts on various police officers with whom she was engaged in that capacity, and she alleges she was sexually harassed, touched, brought to parties, all manner of just terrible sexual abuse. She alleges in the statement of claim, the other elements of it include some very troubling allegations, including that she was directed to provide false information to Crimestoppers. That is a real concern, if true. Crimestoppers, of course, allowing anonymous complaints of criminal conduct that can then lead to search warrants or other police investigations. And she alleges that she was directed to provide information to Crimestoppers that she believed was false. And so, in addition to the very troubling allegations of sexual exploitation by a vulnerable young person, by four police officers at the time, the elements of both having a paid teenage police informant, I think we should all pause and reflect upon whether that’s something that we want as a community to have as a model or as a part of policing. Should we have that? Is it acceptable that police would develop that kind of a relationship with a grade nine student? Should we have that? Is that worth it? We should also reflect upon things like how that Crimestoppers system operates.
Adam Stirling [00:11:09] Hmm
Michael T. Mulligan [00:11:10] Because it, of course, is so susceptible to exactly that kind of abuse. Right? You have in anonymous complaints being made, if they are being directed by the police, you can well imagine how that could lead to really serious problems. One of the police officers, I should say here that’s named in this Notice of Civil Claim, also had a troubled background in terms of his performance in court. I actually recognize the name and looked up a case that he was involved in from 2006, where a judge disbelieved his evidence in court, concluded that he had sort of made things up effectively, that he hadn’t put in his notes. The officer’s explanation at the time was he didn’t make the notes in his notebook because he wrote them on his hand.
Adam Stirling [00:12:04] hmm.
Michael T. Mulligan [00:12:04] And that’s why they appeared nowhere in his report or in his notes. And so, one of the individuals named in the civil claim has had a troubled judicial history. And so, we want to, of course, keep an open mind.
Adam Stirling [00:12:20] Yes.
Michael T. Mulligan [00:12:21] This is simply a notice of claim. These things have not been proven.
Adam Stirling [00:12:26] No.
Michael T. Mulligan [00:12:27] But if these things are true, they are both very problematic in and of themselves because of, you know, some of the things like the sexual misconduct of a young person by people in that kind of a position of authority. And in addition to being individually very troublesome, would also reveal potential systemic problems, which we should reflect upon in terms of, what we should be permitting in terms of police techniques and whether some of these kind of techniques are appropriate ones. And so, this will be a very interesting case to watch. There was some history on it, including a started investigation by the Victoria Police Department closer in time to these activities, which is referred to in the statement of claim as indicating that the complainant appeared to be an honest and reliable individual and including her, at least according to the statement of claim that the allegations were corroborated by other witnesses and supporting records. And then it alleges that an enquiry into this, the complainant became overwhelmed with psychological terror and was unable to continue testifying at an enquiry, which again, if true, you could well imagine if you had a young person who was indeed abused in this fashion, how that could happen. So, we need to keep an open mind. These things have not been proven, but the allegations are extremely serious, and we should pay attention to both the specifics of the case and how that plays out, as well as some of those bigger systemic issues that it squarely raises.
Adam Stirling [00:14:16] All right, let’s take our break. Legally Speaking, we’ll continue in just a moment with Michael Mulligan for Mulligan Defence Lawyers right after this.
Adam Stirling [00:14:23] All right. Continuing with legally speaking on CFAX 1070 with Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers. What’s next on the agenda, Michael?
Michael T. Mulligan [00:14:31] Well, I think next on the agenda should be a discussion of some of the issues that have come out of that overturned murder conviction for the Mr. Talbott in Washington state.
Adam Stirling [00:14:43] Yeah.
Michael T. Mulligan [00:14:44] Most of us have followed this week with some interest.
Adam Stirling [00:14:46] I heard you on the Morning Show, fascinating case.
Michael T. Mulligan [00:14:49] It was really fascinating to me. It’s fascinating from the tragedy, of course, for the young people in the family, but fascinating from a forensic perspective, in that the case began with this use of forensic genealogy, where the investigation focused on this individual because of DNA samples of relatives who had uploaded them to one of the genealogy sites on the internet. So, it was a very interesting investigation. The successful appeal from the conviction also laid bare one of the differences between the Canadian and the U.S. justice system in terms of how they will deal with the selection of jurors in Canada. We don’t ask questions in most cases at all of prospective jurors. We count on the idea that there are twelve of them and hopefully that will work. Even things out.
Adam Stirling [00:15:43] Yes.
Michael T. Mulligan [00:15:44] But the U.S. practice would be to carefully question prospective jurors to determine if the person could be unbiased. And one of the jurors in that case, in the course of that process, candidly said that she didn’t think she could necessarily be fair or unbiased because of her, her background and experiences. And despite an objection to her serving on the jury, the judge nonetheless put her on the jury, and that’s why the case was overturned on appeal.
Adam Stirling [00:16:13] hmm.
Michael T. Mulligan [00:16:14] So it laid bare that important difference between our two systems. But one of the other differences that we’ve got in Canada in the US. Is that in Canada, jurors are not permitted to discuss what went on during their deliberations. They can speak later about what they saw in court or their general experience as being a juror, but they couldn’t say what was talked about in the jury room. And the idea is to provide a forum where people can freely talk about things without thinking they’re going to be named on the evening news about what they had to see concerning their decision to acquit or convict somebody and the provision that provides for that in Canada is section 649 of the Criminal Code.
Adam Stirling [00:16:59] mmhmm.
Michael T. Mulligan [00:16:59] That makes it an offence to reveal what was going on during the course of deliberations. There’s an interesting exception to that, which is for investigations into alleged offences under 139(2) which is obstruction of justice, and that, of course, that might be referred to as the Gillian Guess provision. She was the juror who in a high-profile trial back in 2000, she had a sexual relationship with the accused during the trial. Eyes met across the courtroom, and so eventually she was convicted of that.
Adam Stirling [00:17:36] Good, good.
Michael T. Mulligan [00:17:37] So there is that exception.
Adam Stirling [00:17:37]. I’m glad that’s documented. Yeah,.
Michael T. Mulligan [00:17:41] yeah, you wouldn’t think you need to have that in the jury instruction, but don’t do that, it’s not allowed. So, we are not allowed to talk about things with jurors in Canada, but jurors in the US or in Washington state, at least, are permitted to talk about what went on during their deliberations. What do they think of the evidence? What did the other jurors say? How did you come to your decision? And so, one of the interesting things following this conviction being overturned, I went back and had a look at some of the interviews that were conducted with the jurors who convicted, and the comments and explanations they provided, from my perspective, as a Canadian lawyer, I thought were fascinating because we just don’t get that here. For example, you know, this case was based on these DNA samples. There was no witness to the murder right. You had these two young people whose bodies were found, and you had DNA linking them, linking the body of the, one of the deceased, to the accused. But that was it. And so, for example, one of the jurors in the interview said this, he said, we got a whole bunch of discrete, not clearly connected data points. It’s like a spreadsheet or a crossword puzzle with all kinds of blank cells, and we’re supposed to figure out the pattern filling these holes. They didn’t provide us the connectors. How in the world are we going to say yay or nay on this?
Adam Stirling [00:19:10] Hmm.
Michael T. Mulligan [00:19:11] And it gives you a real insight into the struggle that jury had. Ultimately, they spent three days deliberating and other jurors are quoted talking about, you know, they were trying to figure out all different scenarios, what might have happened, and they couldn’t tell and so on. And ultimately, after three days of deliberation, the jury did convict. But we have an interesting insight into that particular case in terms of just how challenging the jurors found it. And so well, that, of course, was not the basis for the conviction being overturned. Their conviction was overturned because of that juror, who at the outset had acknowledged that she didn’t think she could be necessarily fair because of her background. It does paint a clear picture when you hear the accounts from the jurors is just how much they struggled with the evidence that they did have to come to the conclusion that the accused was guilty. And one of the other jurors who was interviewed spoke about the fact that even though they were told by the judge that they should draw no adverse inference from the fact that he did not testify. One of the other jurors candidly acknowledged that that bothered the jurors, and they thought that it would be human nature to tell his side of the story. So clearly, despite what the judge had told them in terms of how they’re to approach it and not, you know conclude somebody is guilty because they didn’t testify. That was one of the considerations by at least some of the jurors in coming to their conclusion. And so, it is an insight into what a challenging case it was because of its nature based on, essentially, just this DNA evidence.
Adam Stirling [00:21:16] Yeah.
Michael T. Mulligan [00:21:17] Without actual witnesses to what occurred and just how much the jury struggled with it. And as we watch this case go forward will also need to keep an eye on things like if there’s a new trial, does this man testify, given the comments by the jurors here about how they wish to hear from him? So, a really interesting case, a tragedy for the family and the young people involved, and hopefully they get it right and make sure that we haven’t, or they haven’t convicted somebody who isn’t responsible for it. Because it was clearly a challenging case that could have gone in either direction, according to the jurors.
Adam Stirling [00:21:55] Michael Mulligan we appreciate the benefit of your knowledge and insight is always Legally Speaking during the second half of our second hour every Thursday. Talk to you next week.
Michael T. Mulligan [00:22:03] Thank you so much. Stay safe.
Adam Stirling [00:22:04] All right, you too.
Automatically Transcribed on December 13, 2021 – MULLIGAN DEFENCE LAWYERS