Crown Dating Defence Paralegal Mistrial and Random Stranger Attack of Crown

 

Michael Mulligan from Mulligan Defence Lawyers joins us to untangle the intricate web of legal challenges sparked by personal entanglements within the courtroom. Imagine a scenario where a defence counsel’s paralegal is romantically involved with the Crown counsel during a sexual assault trial. This isn’t a plot twist from a legal drama, but a real-life case from Courtenay that led to a mistrial application, questioning the boundaries of professional ethics and the accused’s right to know. We navigate through the complexities of this case, drawing parallels with precedents from Canada and the UK, and ponder the judge’s authority to declare a mistrial post-conviction.

Shifting our focus to Vancouver’s courthouse, we confront the grim reality of operating in a neighbourhood plagued by violence and open drug use. Despite the Crown Counsel Association’s plea for relocation, Attorney General David Eby’s decision keeps the courthouse at its precarious location, raising concerns for all who walk its halls. The need for heightened security measures and the pressing call for addressing underlying social issues become glaringly apparent. As we wrap up, a seemingly trivial lawsuit over a $90 lens coating teaches us a valuable lesson about weighing the cost of legal battles. Michael Mulligan offers his perspective on exercising sound judgment before entering the legal fray, emphasizing the importance of picking one’s battles wisely.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking Dec 5, 2024

 

Adam Stirling [00:00:00] It’s time for our regular segment. Legally Speaking, joined as always by Michael Mulligan with Mulligan Defence Lawyers. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:07] Hey, good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:09] Some pretty interesting issues on the docket for this week. Number one, I’ve always wondered what sorts of rules are in place regarding romantic relationships that might exist between participants in opposing legal battles or situations by way of lawyers, paralegals, staff. How does all that work?

Michael T. Mulligan [00:00:28] It would seem we might need one more.

Adam Stirling [00:00:30] Okay, so.

Michael T. Mulligan [00:00:31] This this particular decision is sort of an unfortunate case. It’s out of Campbell River here. And it was a sexual assault charge which originated from back in 2021. The accused elected to have a trial by a judge and jury so, a trial date was scheduled. The first trial date had to be adjourned because the accused was involuntarily committed to a psychiatric facility. Never a good thing. Trial is adjourned. New trial date set. At the new trial date defence counsel makes an application to the judge to allow the lawyer’s defence counsel’s paralegal to sit at counsel table. That’s unusual, but it’s not an unheard-of thing. One thing to note is that we don’t at this point have the best definition of what, who may qualify as a paralegal.

Adam Stirling [00:01:28] hmm.

Michael T. Mulligan [00:01:28] Although the provincial government is trying to force changes to the Legal Profession Act so that we’d have paralegals provided to amongst other people, amongst other categories of people, to individuals who can’t afford to hire a lawyer. But that’s for another show. So, in this case, the lawyer applied for the paralegal to sit at counsel table. The paralegal apparently was quite involved with the conduct of the defence, sitting in on meetings and strategy meetings showing up at all the trial and so on. Trial carries on jury trial and eventually the accused doesn’t testify and the jury convicts. Okay, we go. There’s a first person who gets a couple of post conviction applications are scheduled. This is an interesting thing to comment on. One of the applications that was filed following the jury conviction is an application to deal with Well, on what fact pattern should the judge sentence somebody because a jury just comes back and finds somebody guilty or not guilty. They don’t explain what they believe or don’t what they didn’t believe. And sometimes with offences, there are multiple ways something could have going on, right. Or there are disputes about whether aggravating things occurred or not. Right. And it can be unclear from a jury verdictm, well on what basis should the judge sentence somebody? And so, one of the things that was scheduled was as an application to determine, okay, on what basis should the judge sentence this person? So that gets set. In the interim, a different crown counsel comes into court prior to that hearing. And there is a disclosure that the paralegal who was present, who is assisting defence counsel, had been dating Crown Counsel who conducted the trial.

Adam Stirling [00:03:22] hmm.

Michael T. Mulligan [00:03:23] So that raise the issue. Well, what about that? And the defence counsel stood up and said something about it and indicated that this was significant. Said that it turns out and it wasn’t entirely unknown to me that she was dating the prosecutor. And the problem or several problems arose from this. One is that the accused was not told about this, didn’t know about it nor was the court told about it.

Adam Stirling [00:03:57] hmm.

Michael T. Mulligan [00:03:57] And so then this led to a mistrial application by new counsel for the now convicted accused. Now, the first legal issue that arose was in the accused, I should say, filed an affidavit saying that he was in a state of shock and disbelief when he learned about the relationship, that he wasn’t told about it, that the paralegal was participating in discussions about strategy, considered her to be part of the legal his legal representation. Had he known about it, he would immediately ask for a new lawyer, very upset about all of this. So, the first issue that arose, the legal issue, is what authority does the judge have to do? Well, what authoritiy does the judge, have at that point to do anything about this? The trial itself is essentially over if the jury has convicted him. Does the judge have authority to grant a mistrial after a jury conviction or acquittal, for that matter? And there are some interesting law around that. One of the cases dealing with the Canadian case was from Ontario, where a jury comes in after deliberation and judge asks them to, they have a verdict. And the foreman stands up and says, guilty. And the judge and everyone else in the courtroom heard that as not guilty.

Adam Stirling [00:05:16] Oh No.

Michael T. Mulligan [00:05:16] And so the man was released.

Adam Stirling [00:05:18] oh No.

Michael T. Mulligan [00:05:18] And the jury was going out. And then the jury saw the man in the parking lot and then asked, why is this man out.

Adam Stirling [00:05:25] Oh No.

Michael T. Mulligan [00:05:25] We convicted him. And so, everyone had to get gathered back up and they said, no, no, no, we miss heard, he coughed. It was guilty, not guilty. And so that raised the issue. But what can you do about that at that point? That actually went all the way to the Supreme Court of Canada, who eventually ordered a new trial. And part of the consideration was that people all left the building. And one of the things they’re supposed to be some finality when a jury finds somebody guilty or not guilty.

Adam Stirling [00:05:53] Yeah.

Michael T. Mulligan [00:05:53] And there’s one of the concerns about that is there’s sort of this concept of being functus. It’s over. Right.

Adam Stirling [00:05:58] Yeah.

Michael T. Mulligan [00:05:58] And you wouldn’t want, for example, a jury being able to change its mind. It’s like if somebody finds somebody not guilty and then doesn’t like something, they learn afterwards. Well, no, no. Guilty then.

Adam Stirling [00:06:07] Yeah.

Michael T. Mulligan [00:06:08] Anyways. The reverse, interestingly, happened a few years ago in the UK where there was a jury trial, and the jury came in and again there was a cough when they were rendering their intended to be not guilty verdict. Somebody coughed and the judge heard guilty. And as did other people in the courtroom. And so, the judge admonished the man and then sentenced him to two years in prison. With the jury sitting there, the jury didn’t say anything. And then after that, it ended. Then the one of the jury foremen asked one of the court staff, why did the judge sentence an innocent man to two years in prison, which then tells everyone they have to come back together and unwind that. And so, there are two of the UK in Canada over that many years, two examples of coughing during jury verdicts that led to opposite incorrect outcomes. Anyways, the judge had to, with the benefit of reviewing that case law and others had to look at the issue of does she have any authority to do anything at this point or does it have to go off to an appeal? Right. That would be the other remedy, you know, if nothing could be done. But can the trial judge still do anything?

Adam Stirling [00:07:21] Yes.

Michael T. Mulligan [00:07:22] And anyways, after considering those cases and others, the judge concluded that, yup, she had authority to do something and looked at them, looked at the fact that some of those cases talked about there being some residual discretion to for a judge to remedy an injustice where information comes to the judge’s attention after the jury verdict, but before, you know, sentencing and everything is completely done because at some point it’s got to be over. Right.

Adam Stirling [00:07:47] Yeah.

Michael T. Mulligan [00:07:47] You know, you don’t have a circumstance where somebody can be found not guilty. And two weeks later, the judge says, I thought about it some more and I think I’m going to convict you. Right.

Adam Stirling [00:07:54] Yeah.

Michael T. Mulligan [00:07:55] At some point, there’s this concept of the judge is done it is Functus, is the term. It is over. Any case, the judge concluded, yup, she still has the authority to do something, but should she do anything? And so, the judge looked at this issue of, you know, what are the duties of defence counsel? What are the duties of Crown? Is the fact that somebody on the defence team was dating the prosecutor, is that necessarily a conflict of interest? And there is a B.C. Court of Appeal decision where there’s a complaint about possible conflict of interest, where the fact pattern was the senior partner of a law firm was married to a corporate solicitor for the defendant. That’s a little convalided, got to think about that. And the Court of Appeals said no, on that fact pattern, there just isn’t a presumption that because people are married, they’re breaching their clients confidences and sharing information improperly and relied upon, I mean, they weren’t people directly involved in the case anyways, but it was sort of a he somebody else in the firm is married to somebody else with the other party, right.

Adam Stirling [00:08:57] Yeah.

Michael T. Mulligan [00:08:58] But there was some reliance placed on the fact that both of the parties were lawyers. They have professional obligations not to be able to maintain confidences. Right. You’re a lawyer. You don’t do until your spouse about what you’re doing at work any more than you would hope your doctors and showing up and just chatting about all the, you know, embarrassing conditions that somebody might have with their spouse. Right.

Adam Stirling [00:09:17] Yeah.

Michael T. Mulligan [00:09:18] And so that’s not enough. But in this case, the paralegal, the evidence was he had no legal training and was directly involved with this. And what the the way the judge focussed it is the judge analysed it both from the perspective of the duties that a lawyer has that defence counsel would have. And those duties include various things including a duty of undivided loyalty to a client. And one of the other things is that a lawyer has a duty of candour to their client. Right. So, it would have been a different circumstance had the defence counsel said to his client, look, my legal assistants dating the prosecutor, Are you okay with that?

Adam Stirling [00:10:00] Yeah.

Michael T. Mulligan [00:10:00] Right.

Adam Stirling [00:10:00] Yeah.

Michael T. Mulligan [00:10:01] And he said, Yeah, that’s fine. Okay. That would be a different circumstance. You just haven’t told the poor person. And then also the judge just admonished the crown. Even he found that even if defence counsel, even leaving aside the what the judge found to be a breach breach of the defence counsel’s duty of candour found that the Crown prosecutors conduct in not disclosing the relationship to the court was extremely serious. And that alone would have constituted a miscarriage of justice. You know, you said that the failure to disclose information to the court, its conduct so egregious that it creates an appearance of unfairness.

Adam Stirling [00:10:42] Yeah.

Michael T. Mulligan [00:10:43] To such a degree that it would keep the administration of justice in the eyes of a reasonable and objective observer. And so, the judge really admonished both parties for breaching different obligations. So, the result of all of that is the judge declared a mistrial. And it will need to be done over, presumably with not that prosecutor or paralegal. And so, it’ll be a do over. So that’s the unfortunate case from upisland. And what can happen when you have some of these sort of complicated relationships, particularly here, where they’re kept secret from both the court and the client. And that is the latest from upisland.

Adam Stirling [00:11:20] All right, Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. We’ll continue right after this.

[00:11:25] COMMERCIAL.

Adam Stirling [00:11:25] Back on the air here at CFAX 1070 Michael Mulligan for Mulligan Defence Lawyers. What’s next on our agenda, Michael?

Michael T. Mulligan [00:11:32] Next on our agenda is a sentencing recent sentencing decision that arose out of a random attack or apparently random attack that occurred near the Vancouver provincial courthouse at 222 Main Street. This was an attack that occurred in February, and the unusual circumstances of it included include that it was an attack that was caught on video. Also, it was the person who was attacked or one of the two people who was attacked was a crown counsel prosecutor walking to work at the courthouse. The third unusual factor was that the Crown counsel at the time had been participating in a “safe work” program, whereby because of the danger in that area of Vancouver, Crown Counsel had hired a security service to walk crown to and from the courthouse to try to prevent them from being attacked. It didn’t work here. Now, it doesn’t appear that the person who was attacked was attacked because they were crown. That’s significant. Apparently, the attacker, attacked another woman nearby as well. Whether having a security guard there had any impact at all. It’s unclear position just ran up and really hit the woman, causing the orbital bone fracture and nerve damage and she remains off work still. The accused for his part in the case was 28 years of age, and he was described as living in the Downtown Eastside with untreated mental illness and self-medicating through substance abuse. So that’s the profile.

Adam Stirling [00:13:26] hmm.

Michael T. Mulligan [00:13:26] Now, the several things come out of this. One thing which I thought was quite concerning is it speaks to the danger in that area of Vancouver, is that the Crown Counsel Association, as a result of this and I suppose other incidents as well, was calling for the closure of the courthouse and moving it to a safer area of town. And so just think about that. Right. You’ve got the Crown Counsel Association President saying that it is so unsafe around the courthouse for crown counsel that the courthouse need be closed and moved to a safer location.

Adam Stirling [00:14:08] Wow.

Michael T. Mulligan [00:14:08] Just think about that.

Adam Stirling [00:14:10] Yeah.

Michael T. Mulligan [00:14:11] David Eby’s response was no, there are no plans to move the courthouse due to the safety issues that surround it. The B.C. Attorney general, their response included firing the security company that was doing the safe work. Safe Walk program.

Adam Stirling [00:14:30] Wow.

Michael T. Mulligan [00:14:30] Although I must say you can watch the video of this online and it looks like the person just kind of runs up like a streak and just punches the crown in the in the head. I don’t know what anyone would do about that. I don’t know how being armed would help, but I just don’t know how you’re going to protect somebody from that sort of completely random out of the blue violence.

Adam Stirling [00:14:51] Yeah. Working next to Centennial Square, it’s a scenario that we’ve actually put a lot of thought in here as well, and it’s difficult. Trust me.

Michael T. Mulligan [00:14:59] Yeah. I mean, just having somebody walk with you, I guess they could be looking around for danger, but you know. I don’t know how you prevent this.

Adam Stirling [00:15:08] Yeah.

Michael T. Mulligan [00:15:09] So the the the fire, the security company for whatever good that’s going to do. And they’ve been trying to make more use of the sheriff’s service to provide protection. Sheriff’s or peace officers. They are armed. So, to the extent that could have any impact. The other thing about all of this, of course, is that, you know, it’s very troubling when the crown counsel can’t get safely to work. But, of course, they’re not the only justice system participants. Right. You’ve got not only defence counsel who’s going to get in and out of these places, but all the other people involved. You’ve got witnesses, complainants. I mean, that particular courthouse is a provincial courthouse. It does provincial criminal in Vancouver. That’s an interesting thing.

Adam Stirling [00:15:59] Yeah.

Michael T. Mulligan [00:15:59] In most places in the province, including in Victoria, the courthouse, like the downtown Victoria courthouse, has everything in it. You’ve got in there the court of appeals sits there. You’ve got the B.C. Supreme Court; you have the provincial court. And those courts would deal with not only criminal matters, but also family matters and small claims matters and civil claims. All of that stuff all occurs in one building here. We have another courthouse out in the Western Communities that is only provincial court. But again, that would deal with a whole range of things that provincial court deals with there. So criminal cases, family cases, small claims matters, traffic ticket disputes, all of that happens there. In Vancouver, there are multiple courthouses around the region, but in Vancouver proper, they’ve separated the criminal court, which is at 222 Main Street from the other main courthouse people may be familiar with the main one in downtown there, which has houses on one side of it. The B.C. Supreme Court and the Court of Appeal and on the other side, the provincial court, but doing like provincial court, small claims, and family. And so that’s the division over there. But there’s just no doubt about it, the 222 Main Street courthouse is right in the centre. It’s right near your 100 block of East Hastings. It is the epicentre of drug use in the, you know, open drug use in Vancouver and has been for many years. I actually started out my career over there frequently, and there’s no doubt about it. It is a rough area of town.

Adam Stirling [00:17:34] Yeah.

Michael T. Mulligan [00:17:34] But, you know, things have gotten worse. The older areas there, even many years ago, which you would be you know, you would not leave your car out there if you wanted to see it intact. You came back or at least you would make sure there was nothing in it that would be attractive to anyone. Anyways, it’s a really worrisome state of affairs. I don’t know what the answer to that is, but it’s certainly indicative of a very serious problem when the Crown Council themselves are not safe and are calling for the courthouse to be moved. You know, we really have to address that in a meaningful way. You know, I’m not sure that whatever solution you might come up with in order in terms of like having sheriffs help Crown get in and out of the courthouse through trial, is really solving anything because you want all these other people that have to go there. Imagine being a, you know, reading this or watching a video of this to be told, okay, you’re the witness to that. You know, break, and enter or shoplifting or whatever it might be. Here’s your subpoena. We’ll see you at 222 Main Street.

Adam Stirling [00:18:40] Yeah. Yeah.

Michael T. Mulligan [00:18:41] That’s not going to feel too good.

Adam Stirling [00:18:44] Nope.

Michael T. Mulligan [00:18:44] You know, and I’m not sure having these barbs, sheriff walking the prosecutor, it is. You’re trying to dart from the bus stop to the courthouse or whatever it might be is going to be a very concerning state of affairs. So that’s what’s going on. That was the sentence. They naturally hired an experienced lawyer of private practice to do the prosecution work. And really at the origin of all of this thing is you’ve got this 28-year-old man with untreated mental illness living on the street in the Downtown Eastside who’s using drugs all day long. And so, while, of course, this particular event is random. It is not as if this is like a meteor hitting the earth. If you leave, you know, hundreds of people or thousands of people living on the street with mental illness, no treatment using drugs. You also have no meaningful facility to get treatment for that. This is going to happen. It’s not really random in that way. You know, it’s random that this 28-year-old mentally ill man happened to do it. And it’s random. I suppose that the person who he happened to hit very seriously injur was Crown counsel. That’s kind of random and unfortunate.

Adam Stirling [00:19:52] Yeah.

Michael T. Mulligan [00:19:53] But it’s not random in the sense that we can’t predict what’s going to happen if we just sort of carry on with what we’re doing. Unless you address those underlying issues, unless you address the fact that you’ve got untreated, people with untreated mental illness and serious substance abuse issues cannot get treatment even if they desperately, desperately want it. This will just continue. And so, you know, the answer to it, I don’t think, is to provide armed sheriffs to defend the prosecutors as they try to get back and forth to their car. We have to, we just have to address those things. And, you know, it’s also not addressed by firing the security company and feel bad for them too.

Adam Stirling [00:20:38] Yeah.

Michael T. Mulligan [00:20:38] You know, it is just some person, some security guys walking back and forth. I don’t know that it would have made any difference if the person was a sheriff with a gun, you know what? What are you going to do about that? And so that’s the latest from the latest on the grim circumstance of the 222 Main Street courthouse in downtown Vancouver.

Adam Stirling [00:20:58] All right. We’ve got less than a minute left, Michael.

Michael T. Mulligan [00:21:02] Final case briefly. It was a dismissed appeal from the B.C. Court of Appeal. It’s an example of how people should exercise some judgement before they go to court. It was a man who decided to sue an optometrist claiming breach of contract and fraud, alleging that when he ordered what he would, he believed online to be lenses with a blue blocker coating that instead they were blue barrier lenses that didn’t have a coating on them. And he decided to sue and claim that that was fraud and wound up in the B.C. Supreme Court for days, wound up with a judgement of $90 and then still wouldn’t give up and wound up off in the Court of Appeal, appealing the 90-day judgement. For their part, the person being sued was claiming the counter claims for defamation and breach of privacy, all of which were dismissed and the case then wound up in the Court of Appeal, taking up yet more court time. And that also dismissed. And so, I just mentioned the thought it was worth mentioning for the, for the perspective that you really need to exercise some good judgement before you decide to go to court. Not every $90 unhappiness with your online purchase should necessarily end up with days in court and ultimately time in the Court of Appeal.

Adam Stirling [00:22:16] Indeed, Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday. Michael, pleasure as always. Thank you.

Michael T. Mulligan [00:22:23] Thanks so much. Always great to be here.

Adam Stirling [00:22:24] All right.

Automatically Transcribed on December 16, 2024 – MULLIGAN DEFENCE LAWYERS