This week on Legally Speaking with Michael Mulligan:
The British Columbia Court of Appeal finds that the Director of Child, Family and Community Services acted unreasonably, and without authority, in telling a single father that children under 10 years of age could not ride the public bus without supervision.
The children that were riding the public bus together, to get to school, were 10, 9, 8 and 7 years old.
The father had spent two years teaching his children how to use the public bus and provided them with a cell phone, with a tracking feature so that he could monitor their location.
The father was required to sign an agreement not to permit any child under the age of 10 to be unsupervised at any time, including on the bus, and implied that the children could be apprehended if he did not comply.
The father was able to raise money with a go fund me page to help pay for the court challenge that eventually reached the Court of Appeal.
The Director of Child, Family, and Community Services argued in court that the agreement the father was required to sign was just a suggestion. The Court of Appeal judges disagreed and pointed out that while lawyers were making this argument in court, social workers employed by the Director continued to treat the agreement as an order.
Also discussed is another British Columbia Court of Appeal decision dismissing a sentence appeal by an aboriginal man who was sentenced to 12 months in jail for growing marijuana and possessing marijuana for the purpose of trafficking.
This sentence was upheld despite the fact that marijuana is now being sold in government-run stores that have been deemed an essential service in the context of the COVID-19 pandemic.
In 1999 the Supreme Court of Canada’s decision in R. v. Gladue dealt with the massive overrepresentation of aboriginal people in Canadian jails.
Since 1999, however, the percentage of aboriginal people in jail has increased significantly.
Aboriginal people make up approximately 5% of the Canadian population but now account for more than 30% of the federal prison population. This is an increase of 5% from four years ago.
The disproportionate percentage of aboriginal people in jail is even starker for women: 42% of women in federal prisons are aboriginal.
Finally, the BC Attorney General is running into opposition from the Trial Lawyers Association over suggestions including the suspension of civil jury trials, or binding arbitration, to clear a backlog of ICBC cases caused by COVID-19 disruptions to courts.
The Trial Lawyers Association has asked the Attorney General to abandon his unpopular plan for mandatory ICBC no-fault insurance if he wishes assistance with the backlog.
Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the show:
Legally Speaking July 9, 2020
Adam Stirling [00:01:53] It’s time for Legally Speaking, on CFAX, July, 9, joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, good morning. How are you doing?
Michael T. Mulligan [00:02:02] Good morning. Thanks so much for having me. I’m doing great. COVID free and can’t complain.
Adam Stirling [00:02:07] Absolutely a number of very interesting stories on this week’s show. In fact, I’m going to be interviewing the father who is the subject of our first story. Coming up on the noon show today. So, I’m thankful that we can or that you can help me better understand the legalities of this case before we get there.
Michael T. Mulligan [00:02:22] That is good to hear. It’s a really interesting case and a potentially important one for parents of young children. So, this case arose a couple of years ago, and the fellow involved with it was a single dad. He shared parenting responsibilities with his former partner. Equally, they both lived in Vancouver, on different sides of the city, and they had five children. The children were ages 10, 9,8,7 and 5, which, of course, makes you wonder what was going on 6 years ago. Now, the father over a period of time, had spent 2 years teaching his children how to ride the public bus.
Adam Stirling [00:03:08] Yes.
Michael T. Mulligan [00:03:09] And the evidence was that over that 2-year period, he repeatedly rode the bus with them, slowly stepping back, showing them what they needed to do. And the bus was important so that the children could get to school over where their mother lived. Right, they shared time equally, but their school was near the mum’s house.
Adam Stirling [00:03:29] Yes.
Michael T. Mulligan [00:03:30] And the father took other steps, including things like getting a cell phone for the children with a location tracker. So, he could track where they were at all times. And then eventually after that, two years of teaching them what to do and having the cell phone, he would allow the oldest four children 10, 9, 8 and 7 to ride the public bus together to get to school or get to their mum’s cells. Well, somebody complained to the Ministry of Children and Families about that, alleging that the children were somehow in need of protection, because they were on the bus without an adult present. The Ministry of Children and Families investigated that. They found that the father was an excellent father, interactive and supportive of his children. They had a healthy, good relationship and he’d taken all the steps that I’ve just indicated in terms of teaching them how to ride the bus and making sure they had a cell phone and this sort of thing. But nonetheless, the Ministry concluded that they thought it was not permissible for him to allow his four oldest children to ride the bus without adult supervision. And indeed, they presented him with a legal opinion saying that which expressed the view that a court would likely find that a 10-year-old child should not be taken taking transit unless accompanied by an adult. And in those circumstances would find that a child was in need of protection. And the implication of finding that a child is in need of protection can be the ministry apprehending the child. You no longer be able to care for the child so very serious consequences.
Adam Stirling [00:05:11] Yes.
Michael T. Mulligan [00:05:11] They then had the father sign a safety plan whereby he agreed not to allow the children to ride the bus without an adult present until further direction from the Ministry of Children and Families. Now, he didn’t think that was appropriate and he took the matter to court to challenge it. And it eventually got to the Court of Appeal, who just rendered a decision finding that the Ministry decision was both unreasonable and they lacked the authority to do what they purported to do. Interestingly, one of the defences the Ministry of Children and Families advanced, and the Court of Appeal roundly rejected was a suggestion that, oh, no, we weren’t exercising or any statutory authority or making any decision at all. We just made a recommendation to him.
Adam Stirling [00:06:08] Hmmm.
Michael T. Mulligan [00:06:09] Well, the court didn’t have any time for that because, of course, when the Ministry tells you, you better do something or your children may be in need of protection and you better sign this agreement. The implication of that is that if you don’t do what they’re telling you to do, your children may be taken away. So, they had absolutely no time for the Directors claim that they weren’t making any kind of an order, which the court could review. That sounds like they were suggesting that this was just some kind of a helpful tip or something, but none of the material they gave to the father, including this report and legal opinion and requiring him to sign that agreement suggested in any way that they were just making some helpful suggestion. It would appear clear from all of that they were ordering him to do this or else with the implicit threat that he would lose his children if he continued to permit them to ride the bus. The other interesting point the Court of Appeal made is that they pointed out that all through the legal process. Well, the Directors lawyer was in court arguing that, you know, this wasn’t really a decision, that was just a helpful suggestion that things of that sort. That the director’s delegates, like the social workers, didn’t behave in that way at all. And so, you had the Director for children and families, often the Court of Appeal and in the Supreme Court taking this position that, you know, this has nothing to be reviewed as just a helpful suggestion. While, at the same time, all of the material and the way they, like the social workers were acting was entirely inconsistent with the legal position that the director was arguing in court to try to justify what they had done. And I must say, the director, while it’s usually the case that a review of an administrative decision like this wouldn’t produce a costs award. It’s clear that, well, the father didn’t get the cost award from the Court of Appeal, it was right on the edge, given that the social workers continued to act in a fashion inconsistent with what the director was claiming in court. And ultimately, the Court of Appeal, I think, kindly described the delegates or the social workers as misguided in their communications and approach. So, an important case, in important needs both for the dad, right. Trying to get his kids to school.
Adam Stirling [00:08:42] Yes.
Michael T. Mulligan [00:08:43] But also, hopefully that will change how the Ministry of Children, Families, Community Services is behaving. Because when you’re telling somebody you better do such and such or, you know, if you don’t, your children may be found to be at risk. You’re really telling the person you’re going to lose your kids unless you do something. That’s not a helpful suggestion.
Adam Stirling [00:09:06] Yeah.
Michael T. Mulligan [00:09:06] So, here, the Court of Appeal felt this was unreasonable and they lacked authority to do what they were doing. And so it’s say it’s a vindication for dad, which I think when you read the description of what kind of a father he was and the safety steps that he took in terms of making sure the kids were safe and tracking them on the phone, it sounds to me like this is a circumstance where the Ministry of Children and Families went well beyond what they should have been doing. Of course, there are many kids that do genuinely need protection and so every hour you spend on a caring father who’s seems to be, by all accounts, behaving in a careful and considered way with respect to his children. Every hour and dollar you spend on this fellow is an hour in dollar you don’t have to spend, or you don’t have to spend in cases where there are kids that are genuinely in danger. And this is a ministry which forever appears to be short on funds. And so, this, I think, was an unfortunate enterprise and good on the dad for pursuing the matter to the Court of Appeal and getting the decision he did.
Adam Stirling [00:10:22] Indeed and again, we will be interviewing this father Sunday during the noon show. Our next item on the agenda, B.C. Court of Appeal holding upholding a twelve months jail sentence, Michael, for producing marijuana. I thought it was legalized. Now, what’s going on?
Michael T. Mulligan [00:10:35] Well, I think a lot of people would think that other than this poor fellow who is going to be sitting in the in jail for 12 months. So circumstances this case was an Aboriginal man who was convicted of producing marijuana and possessing it for the purpose of trafficking and growing it in a rural community in B.C. And after the conviction, there was a thing called a Gladue Report which was ordered. And a Gladue Report is a report that is named after a 1999 Supreme Court of Canada decision, which deals with sentencing for Aboriginal people. And that case from the Supreme Court of Canada was one which interpreted a section of the criminal code that’s designed to reduce the number of Aboriginal people who are in prison. And it was interpreting Section 718.2 that lists all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. And that’s a really important section and particularly important in the current context, where there’s discussions of systemic racism.
Adam Stirling [00:11:59] Yes.
Michael T. Mulligan [00:12:00] Treatment by the justice system. And I should say that since 1999, we have not done well in terms of trying to reduce the number of Aboriginal people who are in prison and here are the stats from this year. The Aboriginal people, Indigenous people in Canada make up about 5% of the population.
Adam Stirling [00:12:20] Yes,.
Michael T. Mulligan [00:12:20] They account now for more than 30% of people who are serving federal jail sentences. That’s an increase from about 255 four years ago and Aboriginal women account for 42% of the women who are serving federal jail sentences.
Adam Stirling [00:12:39] Wow.
Michael T. Mulligan [00:12:39] That is really unfortunate.
Adam Stirling [00:12:43] Yes.
Michael T. Mulligan [00:12:43] And to give you some sense of what’s happened since that Gladue decision back in little year after that in 2010, back in 2010, the number of people who were Aboriginal, percentage of people who were in prison had actually increased by 43.4% t, whereas non non-indigenous population has declined by 13.7%. So since Gladue a case designed to give some more life to that section that I’ve referred to in the Criminal Code, the number of Aboriginal people total have gone up by 43%, while non-Indigenous people in prison has gone down by 13.7, a terrible outcome. And so, this case from the Court of Appeal was talking about, you know, had the sentencing judge taken sufficient consideration to this man’s Aboriginal background when deciding that a 12-month jail sentence needed to be imposed for growing marijuana. The other argument was made was, look, haven’t community values changed. You know, cannabis is now legal.
Adam Stirling [00:13:47] Yeah.
Michael T. Mulligan [00:13:48] Very unfortunately, I think the Court of Appeal dismissed the sentence appeal and found that even though the fact that public attitudes may have changed it didn’t affect the suitability of the 12 month jail sentence, nor did the way the judge dealt with the Gladue considerations. And I must say, in terms of the as the court sort of dismisses the idea that community standards or attitudes may have changed, not being a significant factor, to my mind, as well as not perhaps paying adequate consideration to the statistics I’ve just mentioned and terms groups of Aboriginal people in jail. In terms of community values of marijuana that’s even pretty short shift by the Court of Appeal in this decision. But it strikes me that it’s much more than a shift in community values. We now have the province of British Columbia running, for profit, marijuana store.
Adam Stirling [00:14:50] Indeed,.
Michael T. Mulligan [00:14:51] That’s more than a shift in public opinion. It strikes me that, you know, that at least should be taken as some evidence that there’s been a determination that the substance is not as harmful as we once thought it was. For you know, if it’s so harmful that we need to send people, Aboriginal people, to prison for extended periods of time. Why in the world do we have the Province of British Columbia and other provinces now openly selling the substance? So, there it is. I think it’s a decision worth commenting on, both in terms of that really difficult issue concerning Aboriginal people in custody and how hard it is to try to make progress in that regard. One of the things, of course, that in some circumstances makes that a hard thing to achieve. Unlike, I suppose, of this case with growing marijuana is so often the case, like in the Gladue case itself, like he saw back in 1999, which was a British Columbia case. That was the circumstance of an Aboriginal woman who killed her husband. So often you have a circumstance where you’ve got the victim of offences where there’s an accused person who’s Aboriginal, also being an Aboriginal person. And you know that that itself may be an indication of just some of the just really fundamental and systemic challenges and why perhaps it’s been so hard for the justice system to correct what appears to be a very significant overrepresentation of Aboriginal people in prison, which most, unfortunately, has only exploded over the last decade. So, we have much more work to do there. And I think people should be aware that, you know, the criminal code provides for it, the Supreme Court of Canada’s provided, you know, instruction about how significant that is and how we’re all to deal with it. But sometimes that becomes hard or isn’t occurring when you get down to the individual case, like perhaps this Aboriginal man who’s going to spend 12 months in prison as a result of producing marijuana.
Adam Stirling [00:17:03] I think is very helpful and I want to thank you, Michael, for explaining exactly what a Gladue you report is and is not, because I know some people out there are under the mistaken impression that a Gladue report, or the Gladue Principles results in all Aboriginal offenders automatically qualifying for lighter sense, is not true at all. The obligation is to consider factors not to be necessarily swayed at once decision point by those factors. It is consideration that is that is asked. Yes?
Michael T. Mulligan [00:17:30] Yes, that’s absolutely correct. And when you look at the outcome, the outcome appears to be despite the fact that we have those reports and I’m sure the judges are carefully considering them. Now, we still have a circumstance. We are increasing the number of Aboriginal people who are in prison, both in terms of absolute numbers and in terms of the percentage of people who are in prison. And at the moment, federally, they are both six times overrepresented from what you would expect, based on the number of Aboriginal people in the Canadian population. So good principles, good admonition for all of us but the outcome is clearly not achieving the desired result, at least yet.
Adam Stirling [00:18:13] We have one more story on the docket today regarding the possible changes that may be made to the civil court system in response to the backlogs with COVID-19 and it intersects with our topic you and I have discussed any number of times. Motor vehicle litigation and how it may pertain to things like ICBC.
Michael T. Mulligan [00:18:31] Yes, indeed. So much like the courts dealing with criminal matters have been struggling, dealing with keeping people safe. While moving cases forward in the age of COVID-19, the processing and handling of civil claims has also run up against a whole number of challenges. And it’s produced suggestions by the Attorney-General that he presented to the Trial Lawyers Association of B.C. that represent lawyers who do civil litigation work, including ICBC cases.
Adam Stirling [00:19:05] Yes.
Michael T. Mulligan [00:19:05] And the suggestions made by the attorney general to the trial lawyers were suggestions about doing things, including potentially suspending the right of people to have a civil jury trial and potentially requiring people to deal with cases by way of arbitration through binding arbitration. Now civil jury trials are an interesting thing most people are familiar with jury trials in criminal cases, right? We’ve all seen 12 angry men.
Adam Stirling [00:19:36] Yes.
Michael T. Mulligan [00:19:37] We also have civil juries in British Columbia and civil juries only have eight people on them rather than twelve. And in addition, they don’t have to be unanimous like a criminal jury would need to be six out of eight if they deliberated, I think, for three hours is sufficient. And that comes from the fact that when you’re suing somebody for money, you don’t need to prove it beyond all reasonable doubt, it just has to be established on a balance of probabilities.
Adam Stirling [00:20:04] Yes.
Michael T. Mulligan [00:20:04] We don’t need to have the same very rigorous standard we’d require before we send somebody off to prison. If what we’re determining is, you know, how much money should be awarded for negligence, for example.
Adam Stirling [00:20:14] Yes.
Michael T. Mulligan [00:20:15] And so they are an important thing to have, both in terms of the fact that it brings community standards to the justice system, but I think also important, having community members serve on juries, civil and criminal, and then having them go back and report to their friends and family about what we’re all doing up at the courthouse, I think is also really valuable in terms of maintaining public confidence in the system. So, they are important things. It’s also, interestingly, perhaps not surprising that the Trial Lawyers Association, in response to the Attorney General’s proposal, includes, I think, the not unreasonable suggestion that, look, if you want her cooperation and doing these things, you should be abandoning your misguided efforts to impose mandatory No-Fault ICBC insurance on people.
Adam Stirling [00:21:04] Indeed.
Michael T. Mulligan [00:21:04] Because that’s the group of lawyers who would be dealing with injured people suing ICBC and other drivers. And they’ve pointed out as well that ICBC, right, the entity that the government wants to give essentially authority that would be not reviewable in any meaningful way by a court, you’d be unable to sue the other driver in a car accident. That ICBC has been, at least in some cases, appears to be strategically using a request for jury trials to produce adjournments and ICBC claims. And there’s at least one clear decision where their effort to do that was rejected by the court. And so it’s another example of how they’re I think it’s not unreasonably concerned that based on how ICBC is shown to conduct itself, if like a No-Fault system would allow, they are permitted to simply make decisions that a court couldn’t review, you are likely to see unfairness to people who are injured. And so the attorney general, while proposing this No-Fault ICBC scheme, is running into some pushback on his suggestions in terms of how to unclog the backlog to being created by virtue of the fact that we at the moment just can’t force either 8 or 12 people to serve in a small room as jurors. So that’s the current state of affairs there. And one thing I should say the Attorney General could do without needing the agreement of the Trial Lawyers Association would be to provide direction to ICBC to act in a fashion which is designed to be fair to everyone and not use these sort of things strategically.
Adam Stirling [00:22:56] Yeah, and I thought the CRTC decisions were reviewable to some degree, but I just I barely had my head around Dunsmuir than the Bell Canada case happened and then Vavilov happened and I have no idea where it is now, but maybe that’s for another day. Almost out of time, Michael. But thank you for your time, as always.
Michael T. Mulligan [00:23:11] Always a pleasure. Thank you so much. Stay Safe.
Adam Stirling [00:23:13] Thank you so much.
Automatically Transcribed on July 9, 2020 – MULLIGAN DEFENCE LAWYERS