Confusing COVID-19 orders and a murder appeal vs privilege


This week on Legally Speaking with Michael Mulligan:

A BC Supreme Court Judge describes the BC COVID-19 public health orders as “fraught with inconsistency and ambiguity” and that it’s “not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance.”

This case is one of many that have arisen where separated parents disagree about the interpretation of the orders and how they should be applied in the context of children spending time at both parents’ homes.

The particular case was made more complicated because the orders seem to assume traditional family structures. In the case discussed the separated father, who had care of the two young children in question half the time, had become an adherent of polyamory. He described this as “a belief that all genders are equal and that loving, negotiated, individualized, consensual, and egalitarian relationships can include more than the Judeo-Christian ‘normality’ of a monogamous heterosexual couple.”

In accordance with this, the father’s new partner has a husband with whom she spends slightly more than half of her time. All three parties to this relationship were supportive of the arrangement.

Because of how the COVID-19 orders are drafted, the result of this scenario is that the husband’s apartment became a “vacation accommodation” for his new partner despite this being completely at odds with the ordinary meaning of this term.

Having worked through various ambiguous and difficult to interpret provisions of the orders, the judge concluded that the father’s relationship was not in breach of them, and that the mother should stop withholding access to the children.

It would seem that the government is aware that the orders in question are ambiguous as they have posted a notice on the government web site that says, “Do not look for loopholes or excuses to gather.”

The judge in the case also pointed out that the premier of BC, relying on advice from his Minister of Heath, was obliged to change his plans for Christmas Day at home with his wife, son and her daughter-in-law when it was pointed out to him that such a gathering would be in breach of the orders.

Also discussed in the episode is the case of a man who was convicted of murder in the year 2000. He has maintains his innocence and is still in jail. He blames his conviction on the ineffective assistance of two lawyers: one at his trial and the other on his appeal.

The Court of Appeal clearly had a concern with how the man’s second lawyer conducted himself as it asked the Law Society to investigate the lawyer, who was eventually required to stop practicing.

The man who was convicted was applying for permission to use records the Law Society collected in the course of investigating the lawyers in question. This application was, however, denied by a judge who needed to weigh the importance of the documents against claims of privilege by the Law Society.

The records collected by the Law Society, when investigating the lawyers, would include privileged information concerning other clients of the lawyers in question.

The man will need to advance his renewed application for leave to appeal to the Supreme Court of Canada, or to the Minister of Justice, without the benefit of the Law Society records.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30am.


An automated transcript of the episode:

Legally Speaking Jan 7, 2021

Adam Stirling [00:00:00] Time for Legally Speaking on CFAX 1070, joined as always by Michael Mulligan from Mulligan Defence Lawyers with Legally Speaking. Good morning, Michael. Thank you for your time.

Michael T. Mulligan [00:00:08] Thanks very much for having me.

Adam Stirling [00:00:09] And indeed, a happy New Year.

Michael T. Mulligan [00:00:11] I can’t complain. Nobody stormed my office. On the other hand, I haven’t gotten any trips to Africa. So, you know, there you are.

Adam Stirling [00:00:17] I was just going to say it’s splitting the difference between the two, one might think. What’s on our docket today?

Michael T. Mulligan [00:00:24] Well, the first case I want to talk about is a case that involves, I think, some of these public health orders that have been that have produced some controversy recently.

Adam Stirling [00:00:34] Yes.

Michael T. Mulligan [00:00:35] And the particular context came from a B.C. Supreme Court decision, which was just recently released. And it was a decision dealing with a family court matter and a dispute involving separated parents who were co-parenting. Two young, two young children.

Adam Stirling [00:00:54] Yes.

Michael T. Mulligan [00:00:55] Six-year-old and a four-year-old. And the problems related to the interpretation and what people are supposed to make of the public health orders that have been put in place.

Adam Stirling [00:01:07] Yes.

Michael T. Mulligan [00:01:07] And I think that, according to the judge, is not an uncommon problem. The judge was extremely critical of how these orders read and made clear that even for people who, like these two individuals are, well-educated people, one mother is a biologist, father an engineer, and the rules that are in place, have made it very difficult for them to sort out whether what was going on, met the rules or didn’t meet the rules. And so, here’s the sort of the human affair, the background of the particular dispute. This couple is separated, they are waiting for a divorce to come through and the former husband became an adherent to polyamory after separation. Which he described as a, belief that all genders are equal, loving, negotiated, individualized and consensual, and can include relationships that are not simply monogamous or heterosexual. And with that background, he began a relationship with a woman, who was, remained married to another man, and all three of them were consenting to this relationship. The woman in the new relationship with the separated husband would spend some time with her husband and other times with, with him on this case. And so, the mother, the ex-wife in this case, became concerned that, that wasn’t in compliance with the orders made under the Public Health Act. And so, she started withholding access to the children, refusing to allow them to go over to see their father.

Adam Stirling [00:03:00] mhmm.

Michael T. Mulligan [00:03:00] And the problem, here, was with respect to how were these two people to interpret what these rules mean. And in that regard, the judge was to sort out this problem. He described it this way. He said the messaging accompanying these orders and indeed the language of the orders themselves is fraught with inconsistency and ambiguity. And it is not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstances. And then the judge pointed out as an example of that confusion, the fact that the Premier of British Columbia, relying on advice from the Ministry of Health, was originally planning to spend Christmas with his son and daughter in law and his wife, and then changed plans after having different provisions of the orders pointed out to him.

Adam Stirling [00:03:55] I have a question on procedure. Would the judge be permitted to take judicial notice of that fact or would that need to be included in applications or submissions from the parties?

Michael T. Mulligan [00:04:03] Yeah, that’s a good question. It looks like he just sort of took judicial notice of it. I don’t think he was relying upon the premier’s interpretation, but I think he was simply using it as to illustrate why the order or how the order could be.

Adam Stirling [00:04:18] Okay.

Michael T. Mulligan [00:04:18] Viewed as using to reasonable people who are doing their best to try to interpret it.

Adam Stirling [00:04:23] Yes.

Michael T. Mulligan [00:04:23] But he then goes on to sort of look at the actual order. And when you look at the order, the judge has a good point. The order has been amended many times.

Adam Stirling [00:04:32] Yes.

Michael T. Mulligan [00:04:33] And so it seems to have happened. Is there over time as new problems or outbreaks have developed, the order gets modified in various ways to, I think, try to, you know, cap off some particular problem that’s been identified. And so now the order reads with a beginning that starts with its two and then a whole list of various people, residents of British Columbia, operators and occupants of vacation, accommodation, et cetera, et cetera. Down to one of them. I got a kick out of is now also issued to the owners and operators of places,.

Adam Stirling [00:05:06] hmm.

Michael T. Mulligan [00:05:06] You must say what is a place?

Adam Stirling [00:05:07] Yeah.

Michael T. Mulligan [00:05:08] You then have to look through these multiple pages of definitions. A place includes both inside and outside, an area open to the public and areas not open to the public.

Adam Stirling [00:05:18] hmm.

Michael T. Mulligan [00:05:18] Think of everything.

Adam Stirling [00:05:20] It’s a binary modifier and both conditions are permitted. It’s like, OK, so that’s just everywhere.

Michael T. Mulligan [00:05:27] Everything, everywhere. And so, when you’re going through this thing and you’re trying to make some sense of it,.

Adam Stirling [00:05:33] yeah.

Michael T. Mulligan [00:05:34] And then when you’re trying to apply it particularly to, you know, circumstances like the one in this case, well, you know, it raises questions like, for example, okay, there’s some rules that would apply to people who are living alone.

Adam Stirling [00:05:47] Yes.

Michael T. Mulligan [00:05:48] And so is a does a person who has a young child, are they living alone.

Adam Stirling [00:05:53] yeah.

Michael T. Mulligan [00:05:53] Or can they, can they not have any contact with anyone like that? What is meant by the term vacation accommodation? Oddly, that term has been defined to include any place which gives a whole list of possible things, including temp suites, yurts, houseboats and various things, decks gardens, yards, that is not the occupant’s primary residence.

Adam Stirling [00:06:14] And so you can wind up with things like in the particular dispute that was in court this occasion, the apartment of the husband.

Michael T. Mulligan [00:06:23] Yes.

Adam Stirling [00:06:24] Could be viewed as a vacation accommodation because his new partner was an occupant there. But it was not her primary residence because she spent something more than 50% of her time with her husband.

Adam Stirling [00:06:35] Hmm.

Michael T. Mulligan [00:06:35] But she was staying there. And so, you wind up with this when you try to apply all of these things, you can wind up with the result that that are not intuitive. Like, for example, you know, your boyfriend’s apartment has become a vacation accommodation because that’s not your primary residence. And then you wind up with those issues, for example, with children, if infant counts as an occupant, then no one who has an infant is going to be living alone and so could have no contact with anyone else in their bubble, right those provisions wouldn’t apply. Is that really what was intended here? And so, the point that the judge has made is that these, the provisions, I think in part because of how they’ve developed over time are, have become very difficult for reasonable, smart people to try to divine, you know, what exactly can be permitted here, right?

Adam Stirling [00:07:32] Yeah.

Michael T. Mulligan [00:07:33] They’ve even added provisions, one of the provisions they put up on their website is do not look for loopholes or excuses to gather.

Adam Stirling [00:07:39] I know, I saw that. What do you mean? Well, OK, how are we defining loophole? And we ran into this recently, Michael, because we were reviewing the regulation with respect to mandatory masks in indoor public spaces. And there is language in there that grants exemptions to those who are not physically able to wear a mask or not able to wear a mask due to psychological impairment. But there is nothing to say who ultimately decides whether or not a person meets that test. It just doesn’t exist.

Michael T. Mulligan [00:08:08] Well, the government tried to offer some help, the website, I must say. Chuckling. If you go to the government website where this is, they seem to have revised the concept from the I think it was the early 90s and if you remember when Microsoft Office had the paper clip.

Adam Stirling [00:08:22] Yes.

Michael T. Mulligan [00:08:23] Down to the bottom corner, will they get a paper clip where you now have the beefy covid assistant where you could type in questions, which I guess the computer is supposed to try to answer? I tried polyamory, but it didn’t have any information about that.

Adam Stirling [00:08:37] Interesting.

Michael T. Mulligan [00:08:37] I rephrase the question. And so, there’s just no doubt about it that what we’ve got here is, I think, obviously well intentioned.

Adam Stirling [00:08:46] Yes.

Michael T. Mulligan [00:08:47] It has clearly sort of developed over time, you know, and, you know, some issue develops. You know, you end up with a prohibition on high intensity, you know, sporting activity inside, but low intensity is somehow permitted. And then how does that relate to different interpretations for youth and activity? It’s very hard. The rules now go on for some 33 pages. And as is evident from the comments from this judge trying to interpret all of this, it’s going to be very hard for people who are doing their level best to comply with it, to remain in compliance. Ultimately here, the judge concluded that looking at all of these definitions, including this definition of vacation accommodation.

Adam Stirling [00:09:33] Yes.

Michael T. Mulligan [00:09:34] That seemed to apply, even though nobody would think of your boyfriend’s apartment as a vacation accommodation.

Adam Stirling [00:09:38] Yeah.

Michael T. Mulligan [00:09:40] Weeding through all of that and analyzing the issue of you know, does a young children make you no longer a sole occupant. The end result was the judge concluded that the ex-husband was not in breach of any of these orders by having his new partner come over and stay, in what became vacation accommodation for her, because she still spent time, more than 50% living with her husband, found that that was not in breach of any of the orders. He was not in breach of any of this. In fact, the judge concluded that he was trying to be careful. Both he, the ex-husband, his new partner, and her husband were all symptom free and ceased other all other in-person social interactions. And as a result of all of that, the result of the particular case was to refuse the mother’s application, to stop access to the children, to order that the time that she had withheld be made up. So, you get to spend time with his kids and there they are. But that just doesn’t address the underlying issue with the, with the health orders.

Adam Stirling [00:10:55] Yes.

Michael T. Mulligan [00:10:56] Perhaps a takeaway there would be, you know, we’ve been in this very difficult circumstance now coming up on a year.

Adam Stirling [00:11:03] Yes.

Michael T. Mulligan [00:11:03] You know, these orders have been amended over time. Perhaps it would be an opportunity to revisit how all of this is drafted, and to try to redraft these orders in a way that people can reasonably interpret. You know, when you’ve got a Supreme Court judge scratching, I think it was his head, and then taking 11 pages to try to sort out, you know, what does this mean?

Adam Stirling [00:11:32] Yeah.

Michael T. Mulligan [00:11:32] That ought to be a pretty clear message that this is, not, easy to interpret for people who are doing the best, their best. Even the premier can’t apparently interpret what exactly all of this is supposed to mean. I mean, the big concepts, I think we all get. But when you get down to the minutia of it and I guess those disputes come out. I think more often and in these sort of co-parenting circumstances where you might have other animosities and so on at play, layered on top of legitimate concerns for health. This is how it’s producing litigation.

Adam Stirling [00:12:12] Yes.

Michael T. Mulligan [00:12:12] you know, for each case that winds up in litigation and some, you know, 11-page reasoned decision trying to fish through how all of this applies, they’re going to be hundreds or thousands of people that are trying to type questions into the, you know, 2021 equivalent of the office paperclip, trying to figure out whether they’re allowed to go to the, you know, basketball or not.

Adam Stirling [00:12:36] I shouldn’t laugh, I am sorry, but Yeah. I wonder if that counts as a legal opinion, you know, before you engage in this activity. What advice would you seek? Well, I typed it into the paper clip on this day, and I have a screenshot of that, like, I guess I guess that’s what they would submit.

Michael T. Mulligan [00:12:49] Yeah. There’s a concept of officially induced error. So, you know, maybe you want to take a screenshot of the paperclip’s response inquiry whether you can or cannot go over to your boyfriend’s apartment, whether you’ll be put in breach, depending on, you know, how long you spend there and how old are the children that might be there from time to time. So, I think the solution isn’t a better paperclip. The solution, I think, at this point needs to be a rationalization and clarification of the public health orders. And I must say that, that also might have some utility, too, in the context of things like travel decisions.

Adam Stirling [00:13:29] Yeah, right.

Michael T. Mulligan [00:13:29] You know, I think one of the defences people are raising, not in a legal defence sense, but to politicians that are being caught out, having travelled places, and saying, look, you know, this isn’t an order. It’s a recommendation.

Adam Stirling [00:13:42] Yeah.

Michael T. Mulligan [00:13:43] You know, fair enough. But, you know, I think there should be some clarity there so that everyone involved can know what is expected of them. And it doesn’t turn into a circumstance where, you know, it turns out that, you know, location was a place because it was inside or outside, public, or private. And somehow you’ve breached the place requirement. You know, people just can’t be expected to be able to internalize and figure out what these 33 pages of rules mean. So, I think we need some perhaps a redrafting and clarification of these so that people know what is expected of them.

Adam Stirling [00:14:24] You know, as an ordinary person, I can read statute and I can tell you what those words say, but I usually have no idea what they mean. Legal words have specific meaning. That’s one thing I have learned from all of these conversations, Michael.

Michael T. Mulligan [00:14:35] Yeah, that’s true. I can’t figure out what many of these things mean. I read the thing in the context of this decision. You know, the judge has come to. I guess we have now a decision in that particular case about what some of these things mean. But boy, oh, boy, you know, somebody is trying to figure out whether, whether and what provision might actually apply to them. There is just a great scope for ambiguity and typing something like, you don’t look for loopholes at the end of it. I don’t think solves the problem.

Adam Stirling [00:15:02] let’s take our break here on Legally Speaking, Michael Mulligan continues after this.

[00:15:08] COMMERCIAL.

Adam Stirling [00:15:08] Back to legally speaking on CFAX 1017 with Michael Mulligan from Mulligan Defence Lawyers. Michael, I was laughing at myself during the break because I’m imagining some perhaps public health experts or bureaucrats draughting these regulations for the Website. One of them says the other, what do we do about the loophole problem. The other one says, don’t worry, I’ve got it covered and I do not seek loopholes as the final condition. It’s Bullet-Proof print that. And that’s literally what ended up on the website.

Michael T. Mulligan [00:15:36] It’s like the putting up a sign that says follow all rules on sign.

Adam Stirling [00:15:43] What else is on our agenda for today?

Michael T. Mulligan [00:15:45] Well, the next case is an unfortunate saga that’s been going on now for many years. And it relates to a fellow, Mr. Dunbar, who was convicted of first-degree murder back in October of the year 2000. He’s now been in jail for 21 years or so and he has been maintaining his innocence and appealing his conviction ever since. His appeals are grounded in an argument that he received the ineffective assistance of counsel both at his trial and on his appeal. With respect to the trial, he claimed that his lawyer didn’t allow him to testify, despite wanting to. He claimed that he had an alibi defence that wasn’t presented, claim that the lawyer failed to call various witnesses and didn’t order a transcript of the preliminary inquiry. But he then had an appeal to the Court of Appeal, where he had Mr. Goldberg acting for him as counsel. And unfortunately, Mr. Goldberg’s conduct on the appeal was such that it caused the Court of Appeal to ask the Law Society to investigate Mr. Goldberg. The Law Society, of course, is the organization, lawyers being self-governing profession, that would be responsible for the conduct of lawyers, right?

Adam Stirling [00:17:14] Yes.

Michael T. Mulligan [00:17:15] And so it’s bad news when you’ve got the Court of Appeal asking of the Law Society to investigate the conduct of both. Well, I think in this case, both the lawyer on the appeal and the Law Society also investigated the lawyer who conducted the original trial. So obviously there was at least serious cause to be concerned. The lawyer who conducted the appeal in this case ultimately is no longer a lawyer, had been disciplined numerous times. And so, the particular issue being dealt with here is that this man, who’s still in jail, Mr. Dunbar.

Adam Stirling [00:17:55] mhmm.

Michael T. Mulligan [00:17:55] Was in the course of this legal odyssey, was able to have possession of records from the Law Society concerning the discipline hearings and investigations into his lawyer at trial and his lawyer on the appeal. But all of those documents were provided on conditions that they couldn’t be released publicly because they would contain information that was privileged. Right. He would have, when the law society’s investigating the conduct of a lawyer, it could include information about other clients of the lawyer, for example.

Adam Stirling [00:18:31] Yes.

Michael T. Mulligan [00:18:31] The legal opinions about things. And so, this most recent application was an application by Mr. Dunbar to be able to use these Law Society documents to further his continued efforts to overturn his conviction. Those continued efforts would include, and I should say he, after losing in the Court of Appeal, he applied for leave to appeal to the Supreme Court of Canada and was refused. So, he wants to try again to go to the Supreme Court of Canada or failing that make an application to the Federal Minister of Justice, claiming there was a miscarriage of justice and he was wrongly convicted. But at the end of the day, the judge hearing his application to be able to use these Law Society records was denied, because the judge had to waive the privilege being claimed by the Law Society over those documents relating to the lawyer’s, right; you don’t want to be releasing, you know, private information about those lawyer’s other clients, against the potential benefit or use that would have for Mr. Dunbar in trying to establish that he was wrongly convicted or receive the inefficient, ineffective assistance of counsel that led to that.

Adam Stirling [00:19:55] hmm.

Michael T. Mulligan [00:19:55] And so the upshot here is that Mr. Dunbar. Although, he said counsel will review these was 20 boxes of material concerning the investigation into those two lawyers, he won’t be able to use those to further his continued efforts to appeal to the Supreme Court of Canada again or ask the Minister of Justice to review the case. And that’s because the judge wasn’t satisfied that they would be likely relevant, and he had to weigh that against the privacy and privilege claims being made by the Law Society. The takeaway here, I think the big takeaway, though, is how damaging it can be for people when you don’t have counsel conducting themselves in a potentially in an appropriate fashion. And on that score, there’s obviously a real reason to be concerned here, given the fact that the Court of Appeal sought the, asked the Law Society to investigate the lawyer who conducted the appeal. And that lawyer is no longer practicing and has been disciplined numerous times. When you look at the Law Society website, I find 14 occasions of a lawyer wound up being in hearings and ultimately is no longer allowed to practice.

Adam Stirling [00:21:13] Michael Mulligan. We thank you, as always, for the benefit of your knowledge and insight, Legally Speaking, during the second half of our second hour, every Thursday on CFAX 1070. Until next week.

Michael T. Mulligan [00:21:21] Thank you so much, Stay safe.

Adam Stirling [00:21:22] You too. Bye now.

Automatically Transcribed on January 8, 2021 – MULLIGAN DEFENCE LAWYERS