Legally Speaking Episode Summary: June 11, 2020
In 2015 a BC conservation officer was dismissed from his position for refusing to kill two bear cubs.
Initially, the conservation officer didn’t have the assistance of a lawyer and the issue of his dismissal was dealt with by a union representative and the Labour Relations Board.
Eventually, the conservation officer retained a lawyer who identified that conservation officers are peace officers and issues relating to their discipline or dismissal need to be dealt with pursuant to the Police Act.
After several years of litigation, the BC Court of Appeal finally determined that the Labour Relations Board lacked jurisdiction, and the case should have been deal with pursuant to the Police Act from the start.
Also discussed, in the context of the killing of George Floyd in the United States, are the special legal protections afforded police officers in Canada.
In Canada, the Criminal Code only protects peace offers that use force that is likely or intended to cause death or grievous bodily harm if the police officer believes, on reasonable grounds, that the force is necessary for self-preservation, or to protect someone the police officer is protecting from death or grievous bodily harm.
A police officer in Canada would not be permitted to choke off someone’s air supply in order to punish them, make them more compliant, or easier to load into a police car while unconscious.
There are some special provisions in Canada that do permit a peace officer to use force likely or intended to cause death or grievous bodily harm in order to prevent an inmate from escaping a penitentiary, if the escape can’t reasonably be prevented by less violent means, as long as the officer believes, on reasonable grounds, that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm.
This could permit, for example, an escaping inmate to be shot even if a peace officer didn’t know if the particular inmate posed a threat to kill someone. There still would need to be no other reasonable way to prevent the escape, by less violent means for the defence to apply.
Finally, a case concerning the Civil Resolution Tribunal is discussed on the show.
The Civil Resolution Tribunal was established to adjudicate strata disputes, and small claims cases for less than $5,000. It’s intended to be an expedited, online, dispute resolution system.
Unfortunately, the legislation that created the Civil Resolution Tribunal requires parties to ask permission to have a lawyer represent them, unless they are a child, or suffer from a disability.
When a man sued the strata corporation in his building for $30,000 over a dispute concerning a patio repair, that strata corporation asked for permission to have their lawyer represent them.
Strata corporations would often be run by a group of volunteers, who may not have the time, experience, or interest, in personally conducting a case.
The adjudicator working for the Civil Resolution Tribunal refused the request and much litigation ensued, eventually resulting in the case going all the way to the BC Court of Appeal. That court concluded that the adjudicator had acted unreasonably in refusing to permit the strata corporation to have a lawyer help them. The case has now been sent back to be done again.
The poorly conceived legislation that permits the Civil Resolution Tribunal to prohibit a party from using a lawyer should be amended to remove this authority. It’s both unfair and likely to produce more unnecessary litigation, which undermines the very justification for the tribunal to exist at all.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the show form June 11, 2020:
Legally Speaking June 11 2020
Adam Stirling [00:00:00] Barrister and Solicitor with Mulligan Defence Lawyers Michael Mulligan. How are you?
Michael T. Mulligan [00:00:04] I’m doing great. Ready to clear up all legal ambiguity.
Adam Stirling [00:00:06] All right, or at least attempt to do so at the time provided.
Michael T. Mulligan [00:00:11] That’s about it.
Adam Stirling [00:00:12] So all the B.C. Court of Appeal has made a ruling on a conservation officer who refused to kill bear cubs and was dismissed once upon a time indeed. I’ve had many interactions with Mr. Bryce Casavant over the years. I find him to be a very well-spoken and moral man. I’m interested to hear your take on this case.
Michael T. Mulligan [00:00:30] Yes, this has had a long legal history in addition to, of course, the interesting sort of ethical and moral issues surrounding, you know, how are we to deal with things like bears eating garbage? And no doubt, as most listeners will be aware, this is a fellow who is employed in the conservation officer, he was ordered to go and destroy mother bear and two cubs on the basis that they had been eating garbage. It turned out that only the mother bear had been eating garbage and he refused to, an order to kill the two cubs, and instead took them up to a vet who eventually took them to a recovery center and they were released into the wild. He had apparently in the past not followed other directions to shoot animals. So there apparently was another incident back in 2015 where he was instructed to shoot a cougar that was captured in a live trap. But he didn’t follow that order and instead took a video of the cougar which escaped. So, with that background, he was, it amounted to dismiss. They transferred him or tried to transfer him to a position where he would no longer be a conservation officer, and that amounted to a dismissal.
Adam Stirling [00:01:52] mmhmm.
Michael T. Mulligan [00:01:52] He took issue with that, and the matter started as a he was a union member and eventually the matter, the case wound up in front of the Labour Relations Board. At that point, he didn’t have a lawyer helping him, which was a little unfortunate. And he wound up, the transfer that amounted to a dismissal, wound up being upheld by the Labour Relations Board. He then got a lawyer. The lawyer did things, including making a Freedom of Information request to reveal some other internal reports that suggested reasons for his dismissal. And the lawyer then also realized that the Labour Relations Board may have had no jurisdiction to deal with the matter of his dismissal because as a conservation officer, he was a peace officer under the Provincial Police Act. And as a rule, everyone, of course, will recall there is a specialized and rather intricate process for the discipline or dismissal of a police officer all the way up to police chief.
Adam Stirling [00:02:57] Indeed.
Michael T. Mulligan [00:02:58] So the lawyer then said, well, look, the Labour Relations Board didn’t have jurisdiction to deal with this, this was something that should have been handled under the Police Act. To which originally a judge, a single judge, and the Supreme Court said, well, he should have raised that at the time, at the time when he didn’t have a lawyer, back in front of the Labour Relations Board; but the Court of Appeal, having now reviewed that decision, concluded that, No, the Labour Relations Board did not have jurisdiction. And the fact that this man without a lawyer didn’t use the language talking about lack of jurisdiction back when he was on his own in front of a Labour Relations Board, wasn’t determinative, and all of this process was ill conceived in the wrong forum and all should have been under the Police Act. All of that was complicated by the fact that in the course of all, this sort of a settlement was reached with respect to his dismissal. So, what’s now been determined, by the Court of Appeal, is that he was not properly dismissed. The Labour Relations Board did not have jurisdiction to do what they did. He should have been dealt with under the police act because he was a peace officer. And all of what went on for the past number of years was just completely ill-considered and wrong. All of that, of course, got off on the wrong foot because he didn’t have anyone helping him to give him advice on things like, hey, maybe you’re under the Police Act. This might be the wrong forum. And how on earth is somebody supposed to come to that conclusion and use that language on their own? So, I suppose what we can say now is he can keep his head held high and say, look, he was not properly dismissed. He did not have the sort of hearing that he should have been provided on the basis that his dismissal was with respect to his behaviour as a peace officer. He wasn’t being dismissed for, you know, being late for a staff meeting or something. He was being dismissed on the basis that he didn’t follow this order to kill the bear cubs, when he took the position that that was contrary to the policy of the province. He took that position because the determination was the bear cubs weren’t eating garbage.
Adam Stirling [00:05:12] interesting.
Michael T. Mulligan [00:05:12] It may have been the mother that was, but the bear cubs weren’t. And so, he can hold his head high and say he was not properly dismissed. And this may not be the end of a legal odyssey because it’s been complicated by the fact that in the interim there was a resolution of it. All of this, of course, is interesting stuff, not only in terms of the bear cub and the conservation officer and how that should have been handled. But, of course, in the context of all of the discussion following George Floyd’s killing in the United States with respect to how peace officers ought to be disciplined or not disciplined and what protections they ought to be afforded as a result of their role.
Adam Stirling [00:05:56] hmm.
Michael T. Mulligan [00:05:56] And you’ll recall at the time when the former police chief here was being dealt with, there was much discussion about whether the Police Act process for discipline is an appropriate one.
Adam Stirling [00:06:05] Yes.
Michael T. Mulligan [00:06:05] Whether it may be overly convoluted and there are all kinds of good issues there to be considered. In our Canadian context. We have a very different regime than that which exists in the United States, for example.
Adam Stirling [00:06:21] Yes.
Michael T. Mulligan [00:06:21] Right. There’s been discussion now in the United States about things like do you need to ban chokeholds.
Adam Stirling [00:06:28] Yes.
Michael T. Mulligan [00:06:28] and so when might that be permitted? In Canada, the Criminal Code, both the Criminal Code and the Police Act afforded some special protections to somebody who’s operating or acting as a peace officer to protect them from being sued or charged criminally. And there are some protections to deal with when a peace officer could use force that is intended to or likely to cause death or grievous bodily harm, which I think most people would agree cutting off somebody’s air supply for eight or nine minutes is certainly in the category of something that’s likely to kill somebody.
Adam Stirling [00:07:02] Absolutely.
Michael T. Mulligan [00:07:04] And so in Canada and this is presumed to Section 25 of the Criminal Code. A police officer is only permitted to use force that is intended to or likely to cause death or grievous bodily harm, if, the peace officer believes, on reasonable grounds that it is necessary for self-preservation of themselves or the preservation of someone under the peace officer’s protection from death or grievous bodily harm.
Adam Stirling [00:07:33] Would that include all members of the public?
Michael T. Mulligan [00:07:36] I think so.
Adam Stirling [00:07:37] Okay.
Michael T. Mulligan [00:07:37] I think probably in an immediate way.
Adam Stirling [00:07:39] Okay.
Michael T. Mulligan [00:07:39] Right. You know, if a peace out, if you see one-person yell, if a police officer sees a man holding a gun ready to shoot somebody.
Adam Stirling [00:07:47] Yes.
Michael T. Mulligan [00:07:48] Right, the police officer would be permitted to shoot the individual to protect the person that was being aimed at from death or grievous bodily harm.
Adam Stirling [00:07:55] Okay. So, I’d have to be a declaration of someone being onto the peace officer’s protection first.
Michael T. Mulligan [00:07:59] That’s true. Now, there’s an interesting little one that I just refresh myself on dealing with special powers to deal with people escaping from a penitentiary.
Adam Stirling [00:08:09] Yes,
Michael T. Mulligan [00:08:09] There’s an interesting exception. And sub five of Section 25 of the criminal code that permits a police officer, and I would include in that context, like a jail guard, right…
Adam Stirling [00:08:19] Yeah,
Michael T. Mulligan [00:08:21] …from, it would permit the use of force that is likely to cause death or grievous bodily harm to prevent an inmate escaping from a penitentiary. If the peace officer believes on reasonable grounds that any of the inmates in the penitentiary pose a threat of death or grievous bodily harm to the peace officer or any other person. And if the escape can’t be prevented by reasonable means in a less violent manner. And so that section been there for some time. But, you know, you may have seen in the movies or things sort of guard towers and guards with guns.
Adam Stirling [00:08:55] Yes.
Michael T. Mulligan [00:08:56] There is some special power that would permit, for example, if there was no other reasonable means to prevent the escape, somebody who was an inmate escaping from a penitentiary could end up being shot and killed, if the person doing the shooting and killing is a peace officer. And if they believe that any of the inmates in the penitentiary could be a threat, to pose a threat of death or grievous bodily harm to anyone.
Adam Stirling [00:09:22] Wow.
Michael T. Mulligan [00:09:22] And so that would authorize that sort of use of deadly force if there wasn’t some other way to prevent an escape. I suppose on the theory that, look, if you see somebody in an orange jumpsuit going over the wall, you may not know is that the, you know, person in for the, you know, the serial killer or the person who’s awaiting trial on their, you know, fraud charge?
Adam Stirling [00:09:47] Yes.
Michael T. Mulligan [00:09:48] And so there is some special power there. But the takeaway here is that in Canada, there is only that protection for police officers to use force that’s intended or likely to cause death or grievous bodily harm, if it is reasonably necessary to protect yourself or somebody else from death or grievous bodily harm.
Adam Stirling [00:10:09] Interesting.
Michael T. Mulligan [00:10:09] Can’t do it because it makes it more convenient to load the person into the back of a police cruiser. If you’re able to render them unconscious, it can only be used in those very limited purposes. And if you, as a peace officer, were to use that kind of force for some other reason, you would not enjoy the protections that would be otherwise available to you in the Criminal Code.
Adam Stirling [00:10:31] Thank you for that information, Michael. I think our audience will find it very beneficial as we navigate this sometimes-turbulent debate, animated, of course, by the awful incident involving George Floyd in the United States. Want to take a quick break. We’ll continue our conversation with Michael Mulligan from Mulligan Defence Lawyers right after this.
Adam Stirling [00:10:47] And we are all listening to Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, anything else for? We move on to the latest on the B.C. Civil Resolution Tribunal.
Michael T. Mulligan [00:10:57] Well, another thing I think people should be aware of in terms of special protections that are afforded to peace officers in Canada, in addition to some of the ones we just talked about that are protections against the possibility of criminal prosecution for the use of force. We do also have in British Columbia and pursuant to the Police Act, some special protections that would prevent a peace officer from being personally liable for harm they might cause. In many cases, there is liability for the municipality that employs the police officer. But of course, for that, there are often really short fuse limitation periods. When we talked about a case a few weeks ago where a person lost out because they hadn’t quickly enough notified the municipality.
Adam Stirling [00:11:51] Yes.
Michael T. Mulligan [00:11:51] The police officer personally was liable. And in terms of civil liability, we excuse police officers for personal liability broadly in British Columbia, unless there’s a finding that the peace officer acted dishonestly, with gross negligence, or engaged in malicious or willful misconduct, or for libel or slander. So, in addition to the protections we afford here for criminal prosecution, there are also some restrictions on when a peace officer could be civilly liable for activity to engage in, in the course of their employment, even if, for example, you were to find that a peace officer was negligent as opposed to grossly negligent, they wouldn’t wind up being personally responsible for a loss. So, there are some, I think, interesting issues there for debate in terms of public policy and what might encourage good behaviour. But just to be aware, there are some special provisions there as well as with respect to criminal prosecution.
Adam Stirling [00:12:56] You and I have discussed in the past, British Columbia’s Civil Resolution Tribunal, not a court per say, but a dispute resolution mechanism that was originally envisioned, at least my understanding was, solving things like strata disputes, not quite small claims court, i.e. you can go to a web site and fill out a form and have some sort of a dispute adjudicated. And I know what it’s been expanded to deal with many ICBC cases. And I know you and I have also discussed, I think with general rule 20, involving counsel being able to be retained. What’s the latest on that?
Michael T. Mulligan [00:13:25] Yes, well, you’re quite right that this was the thing. I think it was sort of modelled on things like a PayPal dispute. Right.
Adam Stirling [00:13:31] Okay.
Michael T. Mulligan [00:13:31] You know, the like an online forum, click a little circular buttons type into a window, what’s wrong with your item, and then have somebody resolve it. And it dealt originally with the strata dispute, things like, you know, fighting over whether you should be allowed to have a barbecue on the patio or that kind of thing. And then they expanded it to deal with very small, small claims cases, sort of up to five thousand dollars. And there may well be a I think, a good rationale for sort of a dispute resolution process, sort of in keeping with the scale of the dispute. Right. Maybe if we’re fighting over a barbecue, we don’t need to engage the court process. But the problem becomes once this that sort of a process that has modest sort of procedural protections and fairness issues associated with it, starts expanding into things that are a bigger deal than whether you can have a barbecue or not. It’s becoming it may become a particular problem in the context of trying to move ICBC disputes to it because the people that make the decisions are not independent like a judge would be. Right. A judge can’t be fired if the province doesn’t like the decision made about an ICBC dispute, whereas the people that work for the Civil Resolution Tribunal making these decisions are on contracts that may or may not be renewed.
Adam Stirling [00:14:52] mmhmm.
Michael T. Mulligan [00:14:52] And so the people working there are really on a bit of a leash. Now, there was a recent decision from the Court of Appeal with respect to the Civil Resolution Tribunal that reveals another, I think, serious problem in terms of how it is legislation is organized and in terms of how that the legislative authority is being exercised. The issue here started out with a strata dispute, and it was a person living in a condo that was trying to use the Civil Resolution Tribunal to get compensation from the Strata Corporation over a $700 dispute for repairs to a patio. That combined with a claim for $300 in costs and, I like this one, $25,000 for the loss of enjoyment of life, threats, abuse, and stress.
Adam Stirling [00:15:39] Hmm
Michael T. Mulligan [00:15:40] Now, I presume the fact that you might be, you see, see fit to have to bring a claim for $25,000, a loss of enjoyment of life, threats, abuse, and stress is probably not something in a marketing brochure for the, you know, condo development or what originally went on sale.
Adam Stirling [00:15:57] No.
Michael T. Mulligan [00:15:58] So that’s what the claim was about. Must have been quite a problem with the patio. But the strata corporation, faced with this claim, wanted to have a lawyer help them. And the problem is that somebody, for reasons that escape me, thought it was a good idea when they drafted the legislation for the Civil Resolution Tribunal to require, in most cases, that a person get permission to be able to have a lawyer help them.
Adam Stirling [00:16:28] Yes.
Michael T. Mulligan [00:16:28] Unless somebody is a child or is found to have an impaired capacity, you need to actually ask permission for a lawyer to be able to help you. Which is pretty head scratching in strange state of affairs. Why in the world would you want to stop somebody from getting legal help? Right. But like we saw in that case concerning the conservation officer, sometime some early legal help is going to avoid years of problems. But that’s how the legislation is structured. And in this case, the strata corporation asked to be able to have a lawyer help them to defend this claim for $25,000 or $26,000 dollars. The one of these adjudicators said, no, you can’t have a lawyer help you. And that difficult to comprehend decision, layered on top of it being difficult to comprehend why you would even have that authority, resulted in the case then going all the way up to the B.C. Court of Appeal, who just determined that that decision was an unreasonable one. The strata corporation should have been permitted to have a lawyer help them, when the adjudicator person sort of dismissed their request for a, to be allowed to have their own lawyer help them. Talking about things like oh this is just a standard sort of dispute, that was viewed as an unreasonable decision. And so back the thing will go for another hearing. All of this over seems to me like a completely ill-considered process that would permit somebody to not have a lawyer help them. Doesn’t make any sense.
Adam Stirling [00:18:00] What is the standard of review for decisions made by the CRT? I can’t remember.
Michael T. Mulligan [00:18:04] It’s going to be like any administrative decision, right? It’s going to be reviewed on a reasonableness threshold.
Adam Stirling [00:18:11] Okay.
Michael T. Mulligan [00:18:11] And originally, when that decision was reviewed and went to the B.C. Supreme Court, the Supreme Court judge used sort of deference and saying, well, you know, this was within the range of reasonable possible outcomes given the nature of the legislation, that kind of a.
Adam Stirling [00:18:27] Okay.
Michael T. Mulligan [00:18:27] Deferential approach, which is typically how administrative decisions are reviewed. But the Court of Appeal had none of that and found that the, that was an error and the tribunal had misapprehended the nature of the dispute and the decision was unreasonable. And of course, these things are going to be coloured by virtue of the fact that the starting point of refusing to allow somebody to get legal help just on the face of it is, that’s pretty difficult to understand why you would ever want to have a judicial scheme in place that would not permit somebody to have their, hire a lawyer to help them with it. So all of a head scratcher, my take away from this would be, the province should probably amend the Civil Resolution Tribunal Act and remove the whole provision that would, ever, permit them to not allow a person to have a or strata corporation of a lawyer and help them. It just makes no sense.
Adam Stirling [00:19:25] I wonder if the provision was designed to prevent asymmetry of power, if one party did have counsel and the other party could not afford or did not retain counsel. And that might be seen as unfair because I don’t, I don’t see a purpose for that provision.
Michael T. Mulligan [00:19:39] Well, I mean, how does that solve it?
Adam Stirling [00:19:40] Yeah, I guess.
Michael T. Mulligan [00:19:41] Again somebody who is very sophisticated and experienced on one side of it and the other person could be naive and inexperienced and not know how to handle the process. And then the inexperienced person would be told, I’m sorry, you can’t have a lawyer do this for you. You must go in with whatever degree of experience and knowledge you’ve got. Good luck to you. And that just doesn’t make any sense.
Adam Stirling [00:20:01] No.
Michael T. Mulligan [00:20:02] It’s not a provision that would involve paying for the lawyer or requiring a person to have a lawyer. It’s literally a provision that will stop a person from if they think it’s necessary hiring their own lawyer to help them. And why you would ever want to prevent the lawyer from being able to conduct this sort of a thing just strikes me as bizarre. And I think it really needs a rethink, and the legislation needs to get amended to remove that authority and having to have cases like this over a $700 patio dispute that wind up in two levels of judicial review all the way up to the Court of Appeal and back for a new hearing. Also, utterly defeats the entire justification for trying to have a streamlined, easy to use dispute mechanism. It just runs contrary to the entire scheme of it and just points out the absurdity of that provision to begin with.
Adam Stirling [00:20:54] Michael Mulligan, we have less than 60 seconds left in today’s segment. There’s always more to say on these matters, though. Anything else you touch on?
Michael T. Mulligan [00:21:01] No. I think that probably covers it for this week. I can provide a brief answer there was an earlier caller called in with a question about prosecution of drug offence.
Adam Stirling [00:21:11] Yes. Yes.
Michael T. Mulligan [00:21:12] The way that ordinarily the prosecution of offences would be, most offensive under the Criminal Code would be prosecuted by the Provincial Prosecution Service. However, prosecutions for alleged drug trafficking under the CDSA would be prosecuted federally.
Adam Stirling [00:21:32] Okay.
Michael T. Mulligan [00:21:32] So we actually have the federal government doing prosecutions for drug offences. The real take away with those is we’ve been trying that for years and years. Everything we can possibly muster, and you will have to swim mightily if you wish to try to go up the river of economic supply and demand.
Adam Stirling [00:21:51] Indeed.
Michael T. Mulligan [00:21:51] And all we really managed to do is to drive up the cost of such things, which produces more social disorder like shoplifting and prostitution and robberies and this sort of thing. We’ve tried for many years to try to stop people from buying drugs that are going to kill them.
Adam Stirling [00:22:09] Yeah.
Michael T. Mulligan [00:22:09] Never with much success, and we cause great harm, in my view, in the trying. We drive people to engage in conduct that’s very harmful to them and very harmful to other members of the public in a probably futile effort to stop them from doing really serious harm to themselves. So, I do think there’s much to be rethought there. But as it currently stands, it’s the federal government busily prosecuting people and waiting for general and specific deterrence to kick in. And by that means deter somebody from engaging in conduct, which there is already subjecting you to the risk of death. So, I think we’re going to uphill battle there. But that’s what we continue to do.
Adam Stirling [00:22:48] Here we go, call it the moral of the story. If you have a legal question, ask a real lawyer like Michael Mulligan, Michael, thank you for the benefit of your wisdom, as always.
Michael T. Mulligan [00:22:56] Thank you so much for having me. Stay safe and have a great day.
Adam Stirling [00:22:58] You, too. Have a great day.
Automatically Transcribed on June 11, 2020 – MULLIGAN DEFENCE LAWYERS