Court of Appeal is now back thanks to Zoom and instilling fear of COVID-19 from other parent not in best interests of a child


The BC Court of Appeal will be back operating at full capacity thanks to Zoom.

After several weeks of dealing only with urgent matters, the BC Court of Appeal has announced that all oral hearings will proceed using Zoom. All material will be filed electronically. A desire to have an oral argument in person, rather than by Zoom, will not be a reason for an adjournment.

The Court of Appeal is able to make this change more easily than trial courts can because it does not hear from live witnesses and does not need to manage things like juries.

The Supreme Court of Canada has, for many years, both permitted lawyers to appear by video connection, and has video-recorded its hearing. Video recordings of hearing are posted on the court’s web site.

While the constitutional requirement for public trials in criminal cases doesn’t apply to appeals, it would make sense to utilize the recording function in Zoom, and for the Court of Appeal to post the recordings of oral arguments in the same way that the Supreme Court of Canada does.

Also discussed on the show is a bail review decision, which resulted in a man who had been held in jail to await a series of fisheries offences being released.

The man was charged with various Fisheries Act offences including unlawfully possessing crabs, fishing without authorization, and being on board a fishing vessel when he was not allowed to be. He was originally detained, at the beginning of March, because he had been convicted of similar offences on 11 previous occasions.

Since the original order for detention, COVID-19 has made it completely uncertain how long it will take for the case to get to trial. As a result, the man could end up spending more time in jail waiting for his trial, than the sentence he would receive if he ever is convicted.

Accordingly, the judge ordered that the man be released, on house arrest conditions, until his trial. He will be required to reside with his mother, who will be acting as a surety.

Finally, a Family Law Act decision makes clear that a generalized concern about COVID-19 is not a reason to withhold a child from exercising access to a child pursuant to a court order.

The fact pattern of the case included a mother that did not want to return a child to a father because the father’s mother performs elder case in a care home, and lives with the father.

The court also made clear that parents who attempt to create fear in the mind of a child by suggesting the child is at risk by being in the care of the other parent, without any objective justification for doing so are not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy.


Automated transcript of the show:

Legally Speaking April 23, 2020

Adam Stirling [00:00:00] In these extraordinary times, …is meaning, that means it’s time, I should say, for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, as we benefit from his analysis and insight on the latest in legal affairs this week. Michael Mulligan a pleasure. Good morning.

Michael T. Mulligan [00:00:14] Thank you very much for having me. Very nice to be here.

Adam Stirling [00:00:16] I would imagine that the courts are having to resort to extraordinary measures in these extraordinary times to ensure the dispensation of justice is continued. What is going on?

Michael T. Mulligan [00:00:26] Well, the various levels of court have been working, I think pretty well continuously trying to adapt to the requirements of COVID-19. And there was just an announcement, just released, from the British Columbia Court of Appeal in terms of how that court is going to be able to resume essentially full functioning without putting anyone at risk. The intention and this will begin on May the 4th, is that the court will recommence dealing with all matters, not simply emergency hearings. And they are going to do so using Zoom. And the Court of Appeal issued a directive in terms of how that is all going to occur. It is going to be mandatory and it is now mandatory that material with the Court of Appeal be filed electronically and then all hearings are going to proceed using Zoom technology to make submissions,

Adam Stirling [00:01:30] Mmhmm.

Michael T. Mulligan [00:01:31] And applications are called Chambers Applications, something that is not a full hearing, but sort of a procedural application.

Adam Stirling [00:01:37] Mmhmm

Michael T. Mulligan [00:01:38] Those are going to occur by telephone. So, it’s very interesting to read all of the specifics of that. They include things like, even people who are unrepresented are going to be expected to use Zoom to participate, hearings are not going to be adjourned simply because somebody might prefer to attend in person to make submissions. Things are going to be back at full speed, at least in the Court of Appeal operating in that fashion, which is, I think, great to see. Now, that that same process hasn’t been adopted by the trial courts and there are a few reasons for that; one of the reasons there’s a constitutional impediment that could be at play depending on how it was done. The constitutional issue would arise from Section 11(d) of the Charter, which says this, “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” We do not have secret trials in Canada. Now that same court, that constitutional imperative is not something which would apply on an appeal, because an appeal isn’t just a do over. If somebody doesn’t like the result and they were convicted at trial or don’t like to have been found liable or something. You can’t simply say, well, I’m just going to go and try again, off in the Court of Appeal. The Court of Appeal would deal with reviews of decisions made by trial judges or verdicts and jury cases. But they’re analyzing it from the perspective of, you know, did the judge make a legal error or was there some fundamental misunderstanding of the evidence, that sort of thing. It’s not simply a do over her.

Adam Stirling [00:03:34] mmhmm.

Michael T. Mulligan [00:03:34] And for that reason as well, the Court of Appeal is dealing with things like live witnesses. They’re going to be dealing with things like a transcript of the trial, a written argument and then by Zoom, now, the what was the oral argument in person, will be conducted in that fashion. The other thing which was interesting, we’ll see how this plays out, and the court has also said there will be some follow up in terms of the procedure for these Zoom hearings and what’s expected. And there was, some listeners might recall, there was a judge in the U.S. recently that admonished counsel who were appearing by Zoom there to make sure that they’re out of bed and properly dressed. (laughter)

Michael T. Mulligan [00:04:17] They’re showing up in court making submissions by Zoon. I’m sure there will be some requirements here.

Michael T. Mulligan [00:04:23] That boggles my mind. As a layperson in my imagination, a courtroom is nothing, if not a place of decorum and and solemn observance of the magnitude and gravity of the power that the courts wield. Any person who thinks it’s appropriate to literally be in bed while making submissions before an honourable court, I have to question their judgement overall, Michael.

Michael T. Mulligan [00:04:45] That’s probably true. I recall last month, though, Wal-Mart reported that they had seen an uptick in the sale of shirts like tops, they describe them in (laughter) these pants and other bottoms. People were working from home, appearing by video and didn’t need to worry about taking off their sweatpants. They’re just putting on a shirt with a tie and off they go to work.

Adam Stirling [00:05:08] That is very funny. At least they don’t have the electronic Snapchat filter or whatnot to put a person in a shirt and tie. Yet, (laughter) but I suspect someone somewhere is toiling over code that will do just that.

Michael T. Mulligan [00:05:19] But the other thing I think really interesting to see is what even though the don’t have a theme constitutional imperative to have a an open trial, Zoom, of course, does permit things like the recording of the meeting.

Adam Stirling [00:05:32] Yes.

Michael T. Mulligan [00:05:33] And it’ll be interesting to see what the Court of Appeal chooses to do with that. Because, of course, even though it may not be a constitutional requirement, we don’t have secret justice in Canada and people are free, reporters or otherwise, are free to go in and watch an appeal and watch the oral argument.

Adam Stirling [00:05:49] Yes,

Michael T. Mulligan [00:05:50] The Supreme Court of Canada, for example, they broadcast everything. They have an automated TV camera system. Whoever is speaking, the camera just focuses on them. And then that’s broadcast on TV. Go to the Supreme Court of Canada website and watch the oral argument. And so it would seem to me, given that that’s a function built into Zoom and it’s a regular process in the Supreme Court of Canada where there’s no concern about witnesses being intimidated or, you know, that sort of thing. Concerns that might apply in trial courts, it would seem to me to be good practice if the Court of Appeal decides to simply record the oral arguments using Zoom. It can put them up on its website and any member of the public that wanted to go and watch what was said or the questions that were asked would be freely about freely available. So, I think this is a great use of technology by the Court of Appeal. It’s good they’re going to be back and going full tilt. And hopefully they do it in a way where anyone who’s interested can just log on and watch what’s going on there.

Adam Stirling [00:06:59] Now, as a journalist who has covered legal matters from time to time in this province over the years, I am accustomed to paying the $6 fee for document retrieval online. I wonder if that would apply to Zoom recorded proceedings.

Michael T. Mulligan [00:07:10] Yeah, that’s an interesting fee, I’ve got to say, you know, you have to pay that fee if you want to get a copy of electronic filings in civil cases, for example. Those are again, public, we don’t have secret, secret things going on in court. No good comes of that. But it would seem to me that there’s no need to apply a cost to that. It wouldn’t be a great technological feat to simply flip the record option on Zoom. The Court of Appeal has a robust website, you know just like they post decisions when they come out, also, anyone can go and read those. It seems to me that they’ve got all of this technology working. It wouldn’t require much to simply record the hearing uploaded it to the website. And if anyone is interested in reporting on it or perhaps having a hard time falling asleep some night, they could just click on a Court of Appeal website, and listen to the oral argument (laughter)

Adam Stirling [00:08:04] Michael Mulligan for Mulligan Defence Lawyers. Let’s take a quick break. Legally Speaking, we’ll return in just a moment here on CFAX 1070.


Adam Stirling [00:08:12] We continue with Legally Speaking here at CFAX1070. All of us do our best to deal with the realities required by the physical distancing guidelines and advice provided by public health officials, both here in British Columbia as well as beyond. Michael, another story that we’re looking at this week, a prolific offender in terms of fisheries getting bail post COVID-19. What’s the story?

Michael T. Mulligan [00:08:34] Indeed. Well, this is a fellow who is charged with various offences under the Fisheries Act. Those include things like being on board a fishing vessel, when not allowed to be, being in possession of fishing gear and possessing crabs. And you might wonder, you know, just how deep in the glue can somebody get for doing things like do this in crabs and fishing without the required authorization?

Adam Stirling [00:08:59] Yeah?

Michael T. Mulligan [00:09:00] Well, for this particular fellow, he wound up being held in jail as a result of that collection of charges. And you might wonder how in the world could somebody wind up actually in prison for things of that sort. Well, the judge in this case described why it was that it was not unreasonable for the crown to be, as the judge described, vexed by this person’s series of convictions.

Adam Stirling [00:09:27] I like that word. Vex is such a good word.

Michael T. Mulligan [00:09:30] He this fellow had been convicted apparently 11 times in Nanaimo, Victoria and Surrey for various fisheries offences and wound up over a period of years getting increasingly long sentences, including 45 days in jail, 60 days, 80 days, all for fisheries related things. Seems like that’s all he does. So back at the beginning of March, he got arrested for the series of, you know, possessing crabs and being on the boat and so forth. And he had a bail hearing in front of a provincial court judge to determine, does he have to remain in jail until he’s going to get his trial to determine whether he did indeed possess said crabs. And at that time, the provincial court judge concluded that he just needed to be detained. And the reason for the detention was referred to as the secondary ground. And what that means is that there are various specific reasons why a judge could conclude somebody has to remain in jail waiting for their trial. The primary ground would be if a judge is persuaded, the person is just going to take off, it isn’t going to be there. Right.

Adam Stirling [00:10:38] Yes, yes.

Michael T. Mulligan [00:10:38] The secondary ground would be a concern about whether there would be a danger posed by the person committing further offences. And that, indeed, is why this fellow with 11 prior fisheries convictions wound up getting held in jail. If the judge concluded, probably not unreasonably, hey, if I let this guy out, we may have you know, number 13, he is accused number 12. So, in he went. And then this case, then COVID- 19, of course, exploded and so this case that was released recently was what’s called a bail review.

Adam Stirling [00:11:13] Mmhmm

Michael T. Mulligan [00:11:13] And a bail review is like an appeal, we talked about earlier, to the B.C. Supreme Court usually. And it’s to review whether somebody, whether the decision to detain somebody should be revisited. And just like on an appeal from a conviction, it’s not a matter of just going and saying, let me try that again. Maybe a different judge will, you know, look more kindly on my crabbing offences. A judge would need to be persuaded that there was an error made. Something with a decision was completely inappropriate or as in this case, there was a change in circumstances. And so the thrust of this person’s argument was, hey, there’s been a change in circumstances. All right. COVID-19 has exploded since the beginning of March. And so, the way this hearing proceeded, they had the judge said, both counsel were at home by phone. Or by phone, maybe they didn’t need to get out of bed. Hard to know. The judge says he was at home. (laughter)unclear whether where he’s sitting. And then they had the accused fishing person attend by video link from the jail into a courtroom in Vancouver, where the court clerk was present. And the court clerk would be running the recording equipment, making notes, keeping the court file updated and so that’s how they got everyone together. And so, they conducted this bail review to determine, hey, has things have things changed since the provincial court judge ordered this person detained? And indeed, the Supreme Court judge found that they have changed. And the reason they’ve changed is because of COVID-19. And there’s been a large number of cases that have just been adjourned or put off as a result of being unable to conduct the trials. And now at this point, the judge said, look, no one can reasonably know when this guy is going to actually get his trial to deal with whether he was fishing improperly on this occasion. We don’t know how long it’s going to be. And the concern raised there is that you could have somebody who spends more time waiting in jail for their trial than the sentence they might receive if indeed they were convicted of the various crabbing and fishing offences.

Adam Stirling [00:13:25] Yes, huh

Michael T. Mulligan [00:13:25] And so on that basis, the judge found that this is material change in circumstances. We have no idea when this guy is going to get a trial. And so, the judge ordered that he be released. He was released on house arrest, effectively, he’s got to go to Nanaimo and live with his mother, who’s going to act as a surety and he’s going to remain in this house for basically 24 hours a day unless he has permission from a bail supervisor to go out and do specific things. So presumably he won’t be catching any crabs from his house, but we’re not going to keep the alleged unlawful crabber in jail for some unknown period of time waiting for a trial, which we do not know when that’s going to occur because we haven’t got those happening by whom yet.

Adam Stirling [00:14:11] Family law, I’ve been told any number of times by lawyers over the years, can be among the most difficult to practice given the enormous emotional stakes that are held by the participants in some hearings. For example, there’s a story that we’re going to be discussing next about which conditions may or may not justify someone refusing to return a child over mere concerns about contact with COVID-19, set this one up for us.

Michael T. Mulligan [00:14:37] You’re quite right. I mean, for many people, these things like being able to see their child is going to rank right up there, with some cases will be more important than things like am I going to be convicted of a criminal offence.

Adam Stirling [00:14:50] Yes. Yes.

Michael T. Mulligan [00:14:51] And so this was a case where there was an application to a judge asking that there be an urgent hearing to deal with the issue of whether a child should be returned in accordance with a court order and the basis of it was that or underlying dispute or concern here was that the mother of the child was wanting to take full custody of the child, not allow the father to have custody or access to the child on the basis of a generalized concern that the child’s the grandmother, the mother of the father of the child, that she worked as a caregiver to seniors. And so, the mother was concerned that the father should not be able to care for the child, lest there be a general concern that because the grandma worked in that capacity, that could somehow put the child at risk.

Adam Stirling [00:15:53] Yes,

Michael T. Mulligan [00:15:54] The judge concluded that, no, that wasn’t appropriate. The judge also said that essentially this: The judge said unless the parents of some specific reason to withhold the child on valid medical grounds as opposed to a parent’s subjective opinion, the parent should comply with an existing court order. And you just cannot have people deciding on sort of a generalized anxiety aboutCOVID-19 to say I’m not going to comply. And so the reason expressed by the mother here was sort of a generalized concern and that, that was not satisfactory. The judge also said this, it is important to bear this in mind for people who were in this very difficult circumstance, there would be many people who would be in this spot. The judge said this parents who attempt to create fear in the mind of a child by suggesting that the child is at risk, by being in the care of the other parent without any objective justification for doing so, are not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy. So that, I think, is a warning to people about how they’re behaving in these really trying times. And we should remember that these kinds of family law decisions involving children are not analyzed from the point of view of, that’s my right to have that my child, does not analyze from a parental rights perspective. That’s not how it all works in Canada. The consideration is always what is in the best interests of the child, not the parents. And so what the judge is saying there is that if you as a parent are, you know, doing things like trying to make your young child fearful about going and returning to another parent’s home in accordance with a court order, and that there isn’t a compelling, objective reason for doing so, a court may draw the conclusion that you are failing to act in the best interests of your child by doing that. And the result may be an order that it’s not in the child’s best interest to continue to be in an environment where that’s going on. So that’s, I think, a really important warning for people that the two takeaways here. first of all, a generalized concern is not a reason for failing to comply with a court order. All right. That’s not to say that there could be some circumstance where a person would be justified in going in and asking for a change. Like, let’s say there was something objective of the other parent, for example, is actually diagnosed with COVID -19.

Adam Stirling [00:18:48] Yes, yes.

Michael T. Mulligan [00:18:48] You know, you don’t look at actual specific reason why. You know, it just can’t return the child at 5:00 p.m. on Friday to the parent who’s, you know, at home having been diagnosed with it. But it’s not enough to have a generalized concern that, well, somebody, you know, somebody else lives in the household might have been exposed. That’s not going to do it. And whatever you do as a parent, this is the second takeaway. You shouldn’t be trying to instill some fear in your child that somehow, they’re going to be in danger if they go back and see the other, see other parent, just don’t do that. And so, the judge concluded that, look, what was going on here didn’t need to be dealt with on an urgent basis. This wasn’t a basis to change the court order and admonish the parties to, to go back and comply with the order, setting out that the general principle, that there has to be some specific reason, not just a generalized concern. That’s not going to get your custody order changed and that absent some, something specific, not just a generalized concern, not only should you be complying with the court order. But you shouldn’t be doing things to try to instill fear in your own children.

Adam Stirling [00:20:03] Indeed.

Michael T. Mulligan [00:20:03] Really important takeaways there for parents.

Adam Stirling [00:20:05] And we should note that is independent of whether the concerns are honestly held, because I’m sure many parents do hold genuine, deeply felt concerns. But absent some rational reason to do so, that’s not sufficient to impart that on the child. Yes?

Michael T. Mulligan [00:20:19] You’re exactly right.

Adam Stirling [00:20:20] All right.

Michael T. Mulligan [00:20:21] So I think that’s the message will comply with the court orders. And, you know if there’s a specific reason, go and make an application. Don’t just fail to return the child when you’re required to.

Adam Stirling [00:20:31] Michael Mulligan. Thank you so much for the benefit of your knowledge and insight this week as well as all other weeks when you join us during the second half of the second hour on Thursday. Thank you. And stay safe.

Michael T. Mulligan [00:20:40] Always a pleasure. Thank you very much for having me.

Adam Stirling [00:20:41] Take care. Bye now.

Michael T. Mulligan [00:20:42] Thank you.

Adam Stirling [00:20:43] Michael Mulligan with legally speaking for Mulligan Defence Lawyers every Thursday here at CFAX 1070.

Automatically Transcribed on April 23, 2020 – MULLIGAN DEFENCE LAWYERS