This week on Legally Speaking with Michael Mulligan:
The former Clerk of the BC Legislative Assembly, Craig James, was successful in having one of the charges he was facing dismissed.
Mr. James was charged on a six-count direct indictment.
To be charged by direct indictment, either the Attorney General or Deputy Attorney General need to provide their consent. When this happens, an accused person no longer has the right to elect what kind of trial they wish to have and there can no longer be a preliminary inquiry to determine if there is enough evidence to proceed to trial.
Five of the charges on the direct indictment alleged specific wrongdoing, such as obtaining a benefit from the purchase and use of a trailer and wood splitter paid for with public funds.
The first charge, on the direct indictment, alleged that between September 10, 2011, and November 21, 2018, he did “commit breach of trust in connection with the duties of his office by using his position to advance his own personal interests of the public good, contrary to section 122 of the Criminal Code.”
The trial judge agreed that there were several challenges created by this charge.
The charge duplicated the other five charges, without adding anything new. It would have made the trial more complex for the jury and ran afoul of a principle that a charge should generally relate to a single transaction.
As a result, the trial judge exercised her authority to quash the count and manage the trial in a way that would be fair to Mr. James.
Also on the show, the BC Court of Appeal has concluded that the Motor Vehicle Act provisions that make it an offence to “hold” an electronic device while driving are not restricted to holding a device in your hands.
The driver in question had a phone wedged between his leg and the seat.
The Court of Appeal concluded that the ordinary grammatical meaning of the word “hold” and found that it can include “physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used.”
Finally, on the show, a judge has approved a settlement of a class action against Cathay Pacific Airways Limited as a result of a 2018 data breach that affected 9.4 million passengers worldwide.
Approximately 230,000 passengers were covered by the BC class action.
As a result of the data breach, names, passport numbers, credit card numbers, and other sensitive data were exposed online.
When there is a proposed settlement of a class action a judge needs to determine if the settlement would be in the interest of the class members.
The judge is also required to approve legal fees and an honorarium for the person who served as the representative plaintiff and needed to spend time assisting with the case.
In the case discussed, a settlement of $1.55 million was approved and the representative plaintiff was provided with an additional $1,500 honorarium.
Legally Speaking July 29, 2021
Adam Stirling [00:00:00] It is 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 [00:00:08] I’m doing great. Always good to be here.
Adam Stirling [00:00:10] Always new things on the agenda about which we can speak to. What’s on the list today?
Michael T. Mulligan [00:00:16] At the top of the list involves some progress in the Craig James trial. That is to say, the former clerk of the legislature in B.C. wood splitter fame.
Adam Stirling [00:00:32] Oh yes.
Michael T. Mulligan [00:00:32] And there was a decision just released with respect to one of the charges on the indictment that he was facing and a judge striking out with one of the charges. And that requires, I think, a bit of explanation to get everyone tuned in to what’s going on with that case. Now, ordinarily, the way a criminal charge would begin is crown counsel would draft what is referred to as an information, which is a piece of paper that would have listed on it the various things that a person is alleged to have done. And each thing that they are alleged to have done, each crime they’re alleged to have committed would be listed on the information as what’s called a count on the information.
Adam Stirling [00:01:17] mhmm.
Michael T. Mulligan [00:01:18] One, two, three, four, whatever they might be. And the idea with that information is you should be able to read it to determine, you know, what are you alleging the person did, right?
Adam Stirling [00:01:27] Yes.
Michael T. Mulligan [00:01:28] It sort of frames what’s going to go on from that point on. And ordinarily in a criminal prosecution, one of the first things that would happen is that the accused person who’s charged with serious offences, which are referred to as indictable offences, which is what Mr. James is charged with. Would be given what’s called an election or a choice as to what kind of trial they would want to have. Do they want to have a trial in Provincial Court or in Supreme Court or in Supreme Court with a judge and jury? And so ordinarily, the accused person would make that choice and then that would determine how the case was going to proceed. With respect to Mr. James, one of the unusual things that’s occurred is that the Crown has decided to proceed by means of what’s called direct indictment. And what that means is that the either the attorney general or the deputy attorney general has to personally approve it. And when that occurs, it bypasses what could some of the earlier stages in a criminal prosecution, like, for example, a preliminary inquiry, which would be held if the person asked for one, to determine if there was enough evidence to proceed to trial. And so, the matter winds up going directly to trial in Supreme Court with a jury. And so that’s what’s happened. First of all, in Mr. James’s case, there’s been this direct indictment. And on the direct indictment there, he was charged with a total of six different counts. And so, if you looked at the piece of paper, you should be able to read it and figure out, okay, you know, what is he alleged to have done? And in his case, there was a, there’s been a controversy with respect to the first count on the indictment. And this is why it’s controversial. The other counts on the indictment, other than the first one, listed things that were reasonably specific could be looked at count number 2 on the indictment, it alleged that he improperly kept a long service award of some t$257,000;.
Adam Stirling [00:03:33] hmm.
Adam Stirling [00:03:33] For count 3, you look at it and see, well, he’s alleged to have obtained a benefit by the purchase and use of a trailer and wood splitter paid for with public funds.
Adam Stirling [00:03:43] Yes.
Michael T. Mulligan [00:03:44] Or count 5 alleged to have submitted and received reimbursement for personal travel expenses. Okay, those are all pretty clear. I still think they should put that wood splitter on tour around the province and let people sign up a little bit of wood splitting. (indiscernible)
Adam Stirling [00:04:00] I had actually forgotten about the wood splitter, like I guess it had I hadn’t had cause to turn my mind to that whole episode for quite some time. So, I’m just laughing to myself because again, this is all real in this bonkers Twilight Zone situation that we find ourselves in.
Michael T. Mulligan [00:04:15] And I love the wood splitter explains. The wood splitter explanation at the time was that in the event of something like an earthquake where there is no power to the legislature, it was just a part of the basis that you might go chop down some trees, on the legislature grounds, I mean that big one in the middle and then feed it through the wood splitter. And I guess he was going to heat the place with the wood. Well, what happens with that, I still think the public can get a shot at that thing. Right. Once in a while, they could use some good splitting look at the way.
Adam Stirling [00:04:44] yep.
Michael T. Mulligan [00:04:45] But so but the first count on this indictment was different from the other kills. The first count on the indictment alleged that: craig James between September 10th, 2011, and November 21st, 2013, inclusive, had or near Victoria and then being the clerk of the House did commit a breach of trust in connection with his duties, the duties of his office by using his personal his position to advance his own personal interests over public good, contrary to Section 122 of the criminal code. And so, the complaint defence counsel had with this count was, well, what are you talking about there? You’re alleging he’s done something.
Adam Stirling [00:05:28] mhmm.
Michael T. Mulligan [00:05:28] To advance his own interests sometime in this period between September of 2011 and November of 2018. What might that be? Hmm? What am I defending against here?
Adam Stirling [00:05:37] Yeah, because you need to know how to beat the case. Yeah. okay, that makes sense. Correct.
Michael T. Mulligan [00:05:40] And that raises a number of issues. One does exactly that. What is this. Right. And in response to that, what are you talking about here? The Crown said, well, we’re only alleging conduct that is covered by the other counts.
Adam Stirling [00:05:54] hmm.
Michael T. Mulligan [00:05:54] And so that raises a number of other objections. Well, why do you have this if it’s covered by the other counts specifically? And then it raises a number of potential issues for the trial. And they include things like okay, so if you’ve listed these various specific things like the wood splitter or the $250,000 long service award, etc., and any and all of those things could be covered by this one count that’s just over this long period of time. Now, let’s think about let’s think it through. Let’s say, it’s a jury trial. Let’s imagine two jury members are satisfied that the wood splitter was a problem. Several are satisfied that the $250,000 was a problem. And the rest don’t think either of those were a problem, but don’t like you’ll find that the travel expenses were improper.
Adam Stirling [00:06:43] hmm.
Michael T. Mulligan [00:06:44] Now, can that jury convict on that count? They don’t agree about what happened here, but they all think something happened.
Adam Stirling [00:06:51] Yeah,.
Michael T. Mulligan [00:06:52] Right. And so that creates a potential issue for the jurors. There’s other complexities that would arise from this, including the issue of, well, doesn’t this just add needless complexity if this one just duplicates the other specific ones? And then there’s another issue, which is that the criminal code specifies that a count on the information should, shall generally apply to a single transaction. And so, the concept there would be like if you’re alleging somebody committed an assault, you know, in a bar fight and punch somebody in the nose.
Adam Stirling [00:07:30] mhmm.
Michael T. Mulligan [00:07:30] That could be the subject of account. Okay, if you’re alleging that the person had some other fight five months later with somebody else. Well, generally, that should be a second count on the information. It shouldn’t be, you did commit some kind of an assault with somebody or other in some place because it’s okay, well, what is that? How is that to be defended against? Maybe the first one was self-defence. And the second one your position was it wasn’t there? Well, now what? The idea is that each one of these things, the counts should clearly refer to a specific thing. And, well, you can’t have a circumstance where there are a series of transactions that would all amount to a single transaction, like let’s say, for example, somebody is doing the same thing multiple times. Let’s say somebody is stealing coins out of a parking meter.
Adam Stirling [00:08:18] Yes.
Michael T. Mulligan [00:08:18] And they’re doing basically the same thing every day for two weeks. You could charge the person with theft of money from parking meters between this date and that date on the theory that that’s all really one activity. You’re just every day taking money out of parking meters.
Adam Stirling [00:08:35] hmm.
Michael T. Mulligan [00:08:35] It’s all the same thing. That could be a single transaction. It could be framed in that way rather than listing each parking meter separately. So, there is some flexibility there. But in this case, the judge took into account all of those various considerations, complexity for the jury. What if they disagree about things, all the instructions they need about that, the fact that the first count, according to what the Crown’s explanation was, was just a complete duplication of the other specific ones. So, it really added nothing. It just sort of duplicated them in a rolled-up hole. And that issue of the single transaction rule, you know, isn’t the, for example, is the travel expenses really the same transaction as the wood splitter? Or is the two hundred and fifty something thousand-dollar payment, is that really the same thing as the, you know, paying for your personal trip?
Adam Stirling [00:09:31] hmm.
Michael T. Mulligan [00:09:31] It doesn’t really seem like a single transaction. They seem like distinct things. And so, all of those factors led to the defence counsel in the case being successful in having the judge who’s hearing the case should say Associate Chief Justice Holmes, who’s a very experienced with criminal law.
Adam Stirling [00:09:50] mhmm.
Michael T. Mulligan [00:09:50] Agreeing that the first count on the information, this kind of wide ranging one over the entire period of time should be quashed or removed. And so that’s what was just decided in the case. The first one is now gone. And so, the ultimately the jury will be left with the specific things to go and decide, are you satisfied beyond a reasonable doubt that, for example, the wood splitter?
Adam Stirling [00:10:13] yes.
Michael T. Mulligan [00:10:14] Or the retirement amount or the travel expenses and so there is judicial discretion to deal with those kind of issues, even though generally it would be crown counsel that would decide how you’re charging somebody and what you’re charging them with. And even though there’s this special provision in the criminal code that allows for the direct indictment, which is to say no preliminary enquiry, no choice as to what kind of trial you’re going to have if the attorney general or deputy attorney general approve of that. And so that’s what’s happening in this case. We’ve got a direct indictment and now we’ve had the first count struck out. And so, we will now move forward with a trial dealing with the remaining specific counts. So not a conclusion of the whole case. But I think an interesting example of how that works, how a criminal case starts and what’s a bit unusual about this one. And hopefully this decision will get things focused a bit more to make the trial a bit easier and to make it less complicated for the jury to sort out whether they’re satisfied beyond a reasonable doubt. He did the specific things without having to worry about this one wide ranging sort of duplicate charge on the indictment that may have just added needless complexity without really moving the ball forward too far.
Adam Stirling [00:11:32] Legally speaking, on CFAX 1070, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers will be back right after this.
Adam Stirling [00:11:38] All right. Back on the air, Michael Mulligan Barrister and Solicitor, Legally Speaking, on CFAX 1070. I tell all listeners to the program, make sure you listen. During this segment, I learn new things about the criminal justice system in the way that it functions every single week. And Michael, we’re always appreciative of the benefit of your insight. What’s next on the list?
Michael T. Mulligan [00:11:56] Well, next on the list is one that I think could affect a lot of people. It is a decision out of the B.C. Court of Appeal, once again interpreting the electronic device prohibitions in the Motor Vehicle Act. Right?
Adam Stirling [00:12:13] Oh, good, that again.
Michael T. Mulligan [00:12:14] Texting while driving, we’re still working at it.
Adam Stirling [00:12:16] All right.
Michael T. Mulligan [00:12:17] And so the facts of this case involved a fellow who was driving, and he had a cell phone which was either on his leg or wedged between his leg and the seat of his car facing up. And the police were conducting an enforcement action at an intersection. And they spotted this particular activity. And the way this section is drafted is that it prohibits the one of the things that prohibits is the use of an electronic device and then it defines various ways in which you can be using an electronic device. The first of which is holding the device in a position in which it may be used.
Adam Stirling [00:12:57] Yes.
Michael T. Mulligan [00:12:58] There are other ways, like operating one or more of the devices functions or communicating orally, using the device with another person or various other things. But the first one is holding it in the position in which it may be used. Now, things didn’t go exactly swimmingly at the first at the trial for this fellow. He had a trial in traffic court and the crown, and everyone seems to agree that the judicial justice who heard the case made some clear mistakes, including making comments that a device could be used simply by being in the vehicle anywhere because that could be distracting.
Adam Stirling [00:13:39] Hmm.
Michael T. Mulligan [00:13:39] The device was charging in the car. That’s just not right.
Adam Stirling [00:13:42] No.
Michael T. Mulligan [00:13:42] And so he was convicted, but then it produced an appeal, first of all, to the B.C. Supreme Court and now all the way to the Court of Appeal. I think that was sort of prompted by that mistake by the judicial justice who heard the case initially. But it led to a judicial consideration of what does it mean to hold a device. And this fellow’s argument was, look, the premise of this thing was that I was holding it in a position which it may be used. I wasn’t holding it. It wasn’t in my hand. It was wedged between my leg in the seat. And so, the Court of Appeal was dealing with the issue of what is meant by this legislation when it uses the language holding the device in a position in which it may be used. And that caused the Court of Appeal to go and look at things, including the Oxford English Dictionary definition of holding. And that definition included the concepts of to support something, or to keep something in a particular place or position. And so, the outcome here is that the Court of Appeal has now found that in the context of this legislation, holding doesn’t necessarily require you to hold the device in your hand. And you could be holding the device on your leg, for example. And that is sufficient.
Adam Stirling [00:15:02] hmm.
Michael T. Mulligan [00:15:03] And so the fellow had the thing, had the phone, I think even on his version of it, sort of on his leg or wedged between the leg in the seat facing up. And so that was sufficient to be both holding the device and having it in a position in which it may be used. And so that is prohibited. And so even though the initial basis for the conviction was not correct, the Court of Appeal found that his conviction would have been inevitable, even if a proper interpretation of all of this was applied, because the man agreed that he had this thing wedged by his leg that amounts to holding it. And it is in a position in which it may be used. So, the takeaway is, don’t do that. There are some specific exceptions where you are permitted to as long as you’re not a new driver, for example, you could have a device which is affixed to the vehicle in a safe fashion. And you have to look at the exact wording of that sort of mounted in a way that you would be able to, for example, make a hands-free telephone call with it or use a single touch to answer a call. But you can’t do that by simply having the device flopping around loose that’s not allowed or wedged by your leg. That amounts to holding. And I think the concern there is that, you know, let’s say you swerve. If the device goes flying right, you might be tempted to grab the thing or take some other action whether that could be unsafe. And so, they want to make sure that the thing is secure and don’t have it sitting on your leg or anywhere else like that, because it’s now clear from the Court of Appeal that you could be convicted. And these things have bigger consequences than some people realize, because on a second conviction, you will be prohibited from driving.
Adam Stirling [00:16:57] Yes.
Michael T. Mulligan [00:16:58] And so for many people, that is a major implication because that means they can’t work or get to work. And so that’s a challenge. I do think this legislation requires some updating and some clarification because it is so broad that there can be activity which most people wouldn’t conclude would be unsafe or at least more unsafe than various other things people might do in a car holding a drink.
Adam Stirling [00:17:27] yes.
Michael T. Mulligan [00:17:27] Or having their wallet in their hand or something like, for example, there’ve been convictions now based on devices that were dead. The person was just moving them.
Adam Stirling [00:17:36] Yeah.
Michael T. Mulligan [00:17:37] Things of that sort, which, you know, when you look at that, you’ve got to say to yourself, is that really what’s intended here? Right. Do we need to be convicting people or prohibiting them from driving for doing something like, you know, putting a dead device over? Or one fellow was convicted for having an earbud in his ear with a cord running to the device? And he was found to have been holding the device in his ear.
Adam Stirling [00:18:01] Yeah.
Michael T. Mulligan [00:18:02] And so it’s pretty broad. Most people that I think agree you shouldn’t be emailing away as you drive down the road.
Adam Stirling [00:18:08] No.
Michael T. Mulligan [00:18:08] But you know whether we need to capture people who have an earbud in their ear or who are, you know, putting a dead device in the glove box or something, I think this perhaps it’s time for some legislative updating because the courts aren’t analyzing whether this is a good idea or not. They’re just left with here’s the language. It says, you know, using means holding. And so now I have to decide whether, you know, having it on your leg amounts to holding. That’s not an analysis or whether that’s a good idea or whether we really should be prohibiting that. That’s a legislative decision. And the courts are just doing their best to interpret the wording they have. And so, while I appreciate we all want to have safe streets, we also want to avoid convicting people who are morally blameless for engaged in activity, engaging in activity, like having, I think, things like an earbud in their ear or, you know, putting a device away that’s got a dead battery or something. I’m not sure that that’s really what we need to be capturing unless we also want to be capturing people who are, you know, taking a drink of water out of a bottle or all kinds of other things you might be doing in a car that could be distracting. So, room for legislative improvement. But in the short term, for everyone, don’t have the device sitting on your lap, on your leg or somewhere that could flop around in the car or else you may find yourself in some pretty serious difficulty.
Adam Stirling [00:19:32] Three minutes remain in this week’s segment. And I see one more story on the list.
Michael T. Mulligan [00:19:36] Yeah, the last one involves a settlement of a claim against Cathay Pacific Airways who had a data breach in 2018 where hackers got several million pieces of information, passport numbers, names and so on. That produced a class action in Canada. Bring some 230,000 class members who had their private information stolen by the hackers. It’s resulted now in a class action settlement of 1.55 million dollars. And the decision that came out is that when there’s a class action settlement, the lawyers who are acting for the representative plaintiff in the class action need to get approval from the court to determine that a proposed settlement is an appropriate one, to make sure that it’s in the interests of the class members. And the decision that came out as an example of one of those decisions where the court is tasked with reviewing the suggested negotiated settlement to determine whether it is in the interests of the class members. The court doesn’t have authority to tinker with it because, of course, this is an agreement. Right. You can’t sort of force somebody to agree to something they’re not agreeing to. But the court has the authority to give the thumbs up or thumbs down to a suggested resolution to determine whether it is in the interests of the class members. And before that happens, what occurs is they would send out notices and publish notices to people who would be members of the class so that if people want to object or opt out, they’re able to do that because they want to run their own case for having their data breached. And various people write in. When you have 250,000 some odd people, you know, not surprising, a few people are going to have their own ideas about what should be happening. And I must say, I enjoyed reading through the various I think there were 6 people that objected to it by email, none of whom showed up, but they sent an email. So, the court was having to analyze each of the various objections of these 6 people. One of them I liked who thought it was unfair to the defendant, the airline, that they had to pay this money. But nonetheless, he wanted $20,000 for what he described as a rough estimate by himself of harm caused by the intentional infliction of mental distress by Cathay Pacific, wrongdoing. That didn’t work out for him.
Adam Stirling [00:22:00] That’s a pretty high standard to meet to prove that tort. But good luck to him.
Michael T. Mulligan [00:22:03] Indeed. So, the judge analyzed the various objections, analyze things like, you know, the nature of the claim, took into account that this was interesting, the fact that covid-19 has substantially changed the litigation landscape, particularly with respect to the travel industry.
Adam Stirling [00:22:19] yeah.
Michael T. Mulligan [00:22:19] That’s code for these airlines, I think may be on the verge of bankruptcy in some cases.
Adam Stirling [00:22:23] Yes.
Michael T. Mulligan [00:22:24] And considered all of the work done here by counsel and ultimately approved the settlement and also, interestingly, approved an honorarium, which has become common for the representative plaintiff, the person who’s the nominal representative plaintiff of the class. That person here is going to get $1,500 for their work, you know, showing up and answering questions and so on is the case. So, if you had your data stolen by Cathay Pacific, you may wind up with a few dollars, depending on how many people register for the register for the settlement.
Adam Stirling [00:22:57] Legally Speaking, on CFAX 1070 Michael Mulligan with Mulligan Defence Lawyers pleasure as always, until next week.
Michael T. Mulligan [00:23:03] Have a great week. Stay safe.
Adam Stirling [00:23:04] All right. You too. Bye now.
Automatically Transcribed on August 3, 2021 – MULLIGAN DEFENCE LAWYERS