This week on Legally Speaking with Michael Mulligan:
Sentencing considerations for dangerous driving causing bodily harm: why do we sentence someone who drives dangerously and has an accident that causes serious bodily harm differently from someone who drives in the same way but is lucky and does not cause an accident?
The Criminal Code sets out various factors, and principles, that a judge is required to consider including denunciation, deterrence, and rehabilitation that must be balanced.
One sentencing option, called a conditional sentence, which often amounts to house arrest, would not appear to be an available sentencing option as a result of an amendment to the Criminal Code that prohibits such sentences where the theoretical maximum penalty would be 14 years, or more, in jail. Recently, however, the Ontario Court of Appeal found this restriction to be unconstitutional because it was overbroad and made it more difficult to reduce the number of aboriginal people sentenced to jail.
In Canada, aboriginal people are significantly overrepresented in jail and the Criminal Code directs judges to consider all reasonable alternatives to jail when sentencing offenders.
Also discussed is an estate litigation case which involved a separation agreement that required the deceased to maintain life insurance payable to an ex-wife until child and support payments ended. The deceased ex-husband changed the name of the beneficiary from his ex-wife, to that of his adult children from a former relationship. The separation agreement also required the ex-husband to “make Aeroplan points available” to his ex-wife for several years.
Ultimately, even though the life insurance proceeds would have exceeded the amount of spousal and child support still owing, the judge concluded that the ex-wife should have received the money because of how the separation agreement was drafted.
The ex-wife was not, however, entitled to compensation for the Aeroplan points, because there was no evidence, she asked to use them, and no evidence was presented with respect to their value. The case may stand for the proposition that, without evidence, Aeroplan points are presumptively worthless.
Finally, a Builders Lien Act case is discussed in the context of COVID-19 related Ministerial Orders that stopped the running of limitation periods. The master that decided the case concluded that, even though a second ministerial order which replaced an earlier one, excluded the Builders Lien Act from the suspension of limitation periods, the suspension that was in place pursuant to the earlier Ministerial Order was still effective to provide additional time.
An automated transcript of the episode:
Legally Speaking Oct 29, 2020
Adam Stirling [00:00:00] The time for Legally Speaking, joined by Barrister and Solicitor with Mulligan Defence Lawyers Michael Mulligan. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Good to be here.
Adam Stirling [00:00:08] An update on a story you and I have been following through the legal proceedings. A tragedy involving driving as well as the, well, it’s the Tenessa Nikrik sentencing. Where do we even start with this awful set of circumstances?
Michael T. Mulligan [00:00:23] Well, I think you’re quite right, there’s no other way to describe what happened here is a complete tragedy. And of course, whatever we do at the end of the day isn’t going to help the young girl who was so badly injured in this accident. But what’s going on at the moment are submissions to the judge who’s going to have to struggle with the appropriate sentence to impose here. And that’s not easy and it is particularly not easy where there’s a case like this one where you have a person who engaged and has found to have been engaged in dangerous behaviour, which had this completely tragic and serious consequence. And that is difficult. One of the reasons why that’s difficult from a sentencing perspective is that, of course, the sentence is impacted by this awful outcome.
Adam Stirling [00:01:21] Yeah
Michael T. Mulligan [00:01:21] Right. We we just if you had somebody who was texting on their phone, speeding, and then just got lucky and got pulled over by the police. Well, they’re going to get a fine. Right.
Adam Stirling [00:01:32] Yeah.
Michael T. Mulligan [00:01:32] But where you have a tragic outcome like this one, the ordinary result would be a much more significant sentence. Usually a jail sentence would be what would be expected. And that’s challenging given what we’re trying to do when a sentence is being imposed. And the way it works is that there are a number of principles and purposes of sentences which are actually set out in the criminal code. And there are various, it’s not simply an exercise of vengeance and it’s not simply the length of the judge’s foot.
Adam Stirling [00:02:12] Yes.
Michael T. Mulligan [00:02:13] They are required to consider specific things and they include things like denouncing unlawful conduct, deterring both that person and people generally from engaging in similar conduct. In some cases, you need to separate the person from society to keep people safe, rehabilitation of the person. Right. All of these are factors that a judge would need to consider when determining what sentence to impose. And in fact, there is a specific provision which is of admonishes judges to use restraint in imposing jail sentences, which is going to have some potential application in this particular sentencing case. And that provision in Section 17.2(e) of the criminal code, and it says this: All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. That’s a big statement of principle.
Adam Stirling [00:03:21] Yes.
Michael T. Mulligan [00:03:21] And one of the things which is going on currently in this sentencing case is that the crown is asked for a jail sentence and the defence has asked for either an intermittent sentence on weekends, which could only be 90 days in length in the total number of days left may be viewed as simply an inadequate length of sentence. Or the defence has asked the judge to consider imposing what’s called a conditional sentence, which might be referred to by many people as a house arrest provision, basically, right. And the challenge the defence has in making that alternative submission, you know what about using a conditional sentence? You know, you could put her on house arrest for two years, for example. Is that there, the sections of the criminal code that allow a judge to impose a conditional sentence had some restrictions added to them a few years ago. And the restrictions include that, include this you can’t use a conditional sentence if the offence is one which if prosecuted by indictment, the maximum term of imprisonment would be 14 years or life. And the offence of dangerous driving causing bodily harm is punishable by up to 14 years in prison. And so, when you read this section, you’ll say, well, all, yes, you can’t use a conditional sentence that makes it unavailable. But the lawyer acting for Ms. Nikirk, has indicated that he is going to challenge the constitutionality of that limitation. And there is some reason to think that he may have some success in that regard because of a case that was recently decided by the Ontario Court of Appeal, just this year. And that Ontario Court of Appeal case involved a young Aboriginal woman, Ms. Sharma, who was a mother of a young child who had no record and was persuaded for a modest amount of money to try to bring some drugs into Canada so she could avoid eviction and becoming homeless. That was the fact pattern. And in that case, a conditional sentence, the house arrest option was unavailable because of that provision that I just read out one about 14 years or life, which is would be available for bringing drugs into Canada.
Adam Stirling [00:05:43] Yes.
Michael T. Mulligan [00:05:44] And the Ontario Court of Appeal referencing that other section that I read earlier about the need that there be consideration of all other possible sanctions other than jail, where that can be appropriate with particular attention paid to the circumstances of Aboriginal offenders, because, of course, Aboriginal people are massively overrepresented in prison in Canada.
Adam Stirling [00:06:05] Yes.
Michael T. Mulligan [00:06:06] The Ontario Court of Appeal found the section that limits when a conditional sentence can be used to be unconstitutional because it prevented the use of a conditional sentence to keep that young Aboriginal woman out of jail.
Adam Stirling [00:06:21] Interesting.
Michael T. Mulligan [00:06:21] Right. And when a court finds a section like that to be unconstitutional, it is unconstitutional for everyone. So, the section is simply unconstitutional, at least in Ontario.
Adam Stirling [00:06:31] How does that work with stare decisis and vertical stare decisis?
Michael T. Mulligan [00:06:35] Yeah. The way that works is that Ontario Court of Appeal decision would be binding on all courts in Ontario.
Adam Stirling [00:06:42] Okay.
Michael T. Mulligan [00:06:42] But not binding on courts in other provinces.
Adam Stirling [00:06:45] huh.
Michael T. Mulligan [00:06:45] It would be very persuasive. Right.
Adam Stirling [00:06:47] Yeah
Michael T. Mulligan [00:06:47] You know this well considered judgement from the Ontario Court of Appeal. So, it might be very persuasive for the judge here in Victoria, but doesn’t bind him, although I should say the Crown has appealed that decision to the Supreme Court of Canada. And if the Supreme Court of Canada upholds what the Ontario Court of Appeal found, then it would be applicable to everyone across the country. And so, what’s happening at the moment is that the lawyer for Ms. Nikirk is arguing, no doubt, hey judge you should follow what the Ontario Court of Appeal did hear right, finding that section to be unconstitutional. And if you agree with that conclusion, you’re not required to, but you may be persuaded to. If you agree with it, then a conditional sentence would at least be an available sentence. It doesn’t mean that the judge would do that, but it would bring that into the realm of the possible. And so then if that was so, then the judge would need to make a decision about whether a conditional sentence would otherwise be an appropriate sentence here. And the rub is likely to be just how serious the harm was to this young girl. Right. And that’ll be the win and a difficult weighing because, of course, when you’re looking at issues like, you know, general deterrence, you want to deter people from doing dangerous things like texting on their phone while speeding right.
Adam Stirling [00:08:11] Yes,.
Michael T. Mulligan [00:08:11] Of course.
Adam Stirling [00:08:12] Yes Yes.
Michael T. Mulligan [00:08:12] We can all agree that should be discouraged.
Adam Stirling [00:08:14] Indeed.
Michael T. Mulligan [00:08:15] But really, when you think about the moral culpability of the lucky texting speeder, right.
Adam Stirling [00:08:22] Yes.
Michael T. Mulligan [00:08:22] And the moral culpability of the unlucky texting speeder. Right.
Adam Stirling [00:08:26] Yeah,.
Michael T. Mulligan [00:08:26] They’re the same. It just happened..
Adam Stirling [00:08:28] Luck
Michael T. Mulligan [00:08:29] One person got very fortunate and didn’t kill anyone or hurt anyone seriously on their drive home, whereas the other person was unfortunate and caused this complete tragedy. And so that’s the tension with sentencings of this sort. The same sort of issue arises with this category of cases that are sometimes called the one punch manslaughter cases.
Adam Stirling [00:08:51] Yes.
Michael T. Mulligan [00:08:51] Like a couple of people go to they’re having an argument and one person punches the other person. And surprisingly, you know, they stumble backwards, fall down, hit their head, and die.
Adam Stirling [00:09:00] Yeah. And there is a whole non, volenti non fit injuria or whatever the Latin is for that.
Michael T. Mulligan [00:09:04] So, you know, what do you do with that? If it were, if the person didn’t stumble back and die, it would be, you know, some modest outcome, probably. Right.
Adam Stirling [00:09:14] Yes.
Michael T. Mulligan [00:09:14] You know, punch somebody in the arm and they got a bruise. You probably put the person on probation or…right.
Adam Stirling [00:09:19] Yes.
Michael T. Mulligan [00:09:19] And there some counselling or something. Right. But..].
Adam Stirling [00:09:22] Have to write an essay saying there’s worry, that sort of thing.
Michael T. Mulligan [00:09:25] Right. Yeah. Know, if you said, well, a person punched somebody outside of the bar in the arm, the person got a bruise. Nothing else happened. Right.
Adam Stirling [00:09:31] Yes.
Michael T. Mulligan [00:09:32] You’d probably say a person with no record is probably going to wind up with that. Maybe some counselling for anger management or, you know, do some community work, and apologize. Right.
Adam Stirling [00:09:40] Yeah Yeah.
Michael T. Mulligan [00:09:40] On what you’d expect. But if you punch somebody in the arm and the person goes off balance, falls over, hits their head, and dies, that person goes to prison.
Adam Stirling [00:09:49] Yeah.
Michael T. Mulligan [00:09:49] You know, really, what’s the difference there? Right. You want to deter people from punching other people in the arm. And we want to deter people from texting and driving. No doubt about that. But it’s really hard and maybe the answer is you need much greater sentences for the lucky arm punch or the lucky texter. But, you know, we’re not ordinarily going to send people off to the penitentiary or to jail for, you know, texting on their phone and having no consequence. We just do take into account the consequence. And so, if this constitutional argument is successful, then the judge will need to struggle with the issue of whether putting somebody, for example, on house arrest for two years would be sufficient in terms of the other principles of sentencing. Would that be sufficient in terms of denouncing the conduct and deterring other people and deterring this person? Right. And ensuring the persons rehabilitate. Would that be sufficient? And so that would be, I think, a harder thing to struggle with than if that is an available option. If it’s unavailable, the judge may conclude well, look, you know, what would otherwise be available to me just wouldn’t be proportionate to the actual harm that happened here. So, it’s going to be an interesting thing to watch. The application, you know, does appear to have some reasonable basis for it, given what the Court of Appeal has found in Ontario. And so, we’ll have to watch how that plays out. The judge here dealing with it happily is a very experienced, experienced criminal lawyer for many years.
Adam Stirling [00:11:22] Yes,.
Michael T. Mulligan [00:11:23] He’s been a Judge, for a long time. He’d be a good he’s a good person to be struggling with all of this simply because he is going to be well versed in all of these issues.
Adam Stirling [00:11:31] Good.
Michael T. Mulligan [00:11:32] A difficult case, a hard one. But that’s the structure that the judge will need to struggle with in deciding, you know, what do we do with Ms., Ms. Nikrik.
Adam Stirling [00:11:42] Indeed. And I know yourself and all those who participate in allowing our criminal justice system to function. I just want to say to the service that you and others do for the community is so important because I think many people wouldn’t be able to make decisions of that nature, day after day after day, without of weighing so heavily on them, just being involved in in living and knowing those circumstances every day.
Michael T. Mulligan [00:12:04] No, indeed. And I must say as counsel used to you, you do your best to make your submission, but it’s going to be you know, somebody else has got to go back in and figure out, you know, what are you going to go ahead and decide here when you’re got these really tough cases. You know, it’s perhaps not as difficult if you were dealing with somebody who, you know, intentionally cause,.
Adam Stirling [00:12:23] Yeah.
Michael T. Mulligan [00:12:23] You know, sort of grievous harm to somebody. We can all probably agree about the appropriate right approach there. Right.
Adam Stirling [00:12:30] Yes
Michael T. Mulligan [00:12:30] But when you’re dealing with somebody who engages in, you know, reckless conduct. Right now, that causes a tragedy. You know, that brings all of those principles of sentencing into real tension. And so that’s, I think, why a case like this one is just it’s so difficult to balance all of those competing interests.
Adam Stirling [00:12:52] Michael Mulligan barrister and listener with Mulligan Defence Lawyers, Legally Speaking. We’ll continue after this break.
Adam Stirling [00:12:57] We continue now with, Legally Speaking, Michael Mulligan with Mulligan Defence Lawyers on the case. Michael, a young wife, a separation agreement, life insurance and Aeroplan points. What’s the fact pattern here?
Michael T. Mulligan [00:13:09] Yes, indeed. I must say that I think the fact pattern might call to mind for some people. Gloria and Manny, for modern families, the media here that played the plaintiff in this case was 26 years of age when she married the 54 year old and she was from Columbia and she had a four year old son who was from a previous relationship. The happy couple moved to I think it was Parkville, things went along fine for a few years, but they eventually separated in 2013. And when they separated, they entered into this separation agreement with the help of a mediator. And the agreement provided that the ex-husband would pay to his ex-wife, spousal support for several years in the amount of $5,500 per month and then would also pay child support for the child to buy was a child of the marriage as a result of having this couple having married the amount of 1$,667 dollars per month. The support agreement also included, the separation agreement also included a requirement that the husband, or ex-husband, purchase life insurance payable to the ex-wife in the amount of $250,000, and to keep that in place while he still had this obligation to pay child or special support. Well, you can probably imagine what happened. He did buy the insurance, but then he changed the beneficiary from the ex-wife to his adult children and then he promptly died.
Adam Stirling [00:14:58] Oh.
Michael T. Mulligan [00:14:59] So tragic for him. But this case was then brought by his ex-wife saying that the life insurance proceeds, the $250,000 dollars should be paid to her rather than his adult children or the estate. The adult children took the position that the $250,000 dollars exceeded the amount of money that was remaining payable by way of spousal and child support at the time of their father’s death. And so only gave her 78, I think 78 or $79,000. And hence the lawsuit. The lawsuit also made a claim for Aeroplan points because the separation agreement provided that the ex-husband would make available to his ex-wife, $150,000 aero plan points for each of several years, as long as she paid the tax on any bookings.
Adam Stirling [00:16:01] Wow.
Michael T. Mulligan [00:16:01] And so the judge had to wrestle with, well, what do we do with all this? Ultimately, the judge concluded that with respect to the life insurance proceeds, even though the amount of money the ex-wife would receive pursuant to the life insurance policy was much greater than the amount of spousal and child support that remained payable before the agreement would have expired. Nonetheless, it was a clear term of the agreement that this be done. And as a result, she has been awarded that amount of money to be paid out of out of the estate. That then brought the judge to the Aeroplan points and the judge concluded that the agreement simply provided that the ex-husband would make available to the complainant, 150,000 Aeroplan points per year and that there was no evidence that she actually asked him to book anything using the Aeroplan points during that period of time that the agreement didn’t actually provide that she was to be transferred the Aeroplan points. And moreover, the plaintiff didn’t lead any evidence upon which the judge could rely to value these Aeroplan points as worth anything. And so, the net result is she’ll get the insurance proceeds, but not the Aeroplan points. And I must say, I smiled as a user of Aeroplan points, reading this thing over in terms of essentially it seems to amount to a conclusion and some authority for the proposition that without evidence, presumptively, Aeroplan points aren’t worth anything. So, if you’re suing somebody over your Aeroplan.
Adam Stirling [00:17:44] for their Aeroplan points.
Michael T. Mulligan [00:17:46] You better leave them evidence that they’re actually worth something less you’ll be faced with this particular decision from the B.C. Supreme Court, which, of course, would be binding on other judges in B.C.
Adam Stirling [00:17:55] And persuasive to judges elsewhere.
Michael T. Mulligan [00:17:57] Correct. You may find judges elsewhere is a very persuasive I’m not sure those points are worth anything. Call some evidence.
Adam Stirling [00:18:04] We’ve COVID-19, as always, part of our public discourse and politicians increasingly grappling with infection numbers that are larger than would otherwise be desired. Covid-19 ministerial orders again, at issue and we do have a case that relates to that, don’t we? We’ve got three and a half minutes.
Michael T. Mulligan [00:18:22] Indeed we do. Probably you can sum it up in that time. So, it’s a local case. It involved a local Chinese restaurant and a local contractor. The contractor said that they did some work for the Chinese restaurant and they claimed that they weren’t paid for the work. And so, they filed a builder’s lien, which is something that a contractor can do if they’re not if they say they weren’t paid for work. But there’s a requirement in the Builders Lien Act that you then follow up within one year and file a notice of this Certificate of Pending Litigation to then sort of go on and have the things sorted out in court. Well, the issue arose here is that the one year had expired, but for the operation of one of these emergency orders that was made back in March. There was an emergency order issued ministerial order, M086, that said every mandatory limitation period and other mandatory time period as established in an enactment or law of British Columbia within the civil or family action, proceedings, claims, or appeal may be commenced in the provincial courts, Supreme Court or the Court of Appeal is suspended. And so, there was a suspension of limitation periods issued that the order was signed on March 26.
Adam Stirling [00:19:42] mhmm.
Michael T. Mulligan [00:19:42] And then what happened is when that one expired, there was a new ministerial order, ministerial order 098, which said there will be a continued suspension limitation periods, but the suspension does not apply to the Builders Lien Act at all. And so, the argument that because that, the time to thing was filed was would be affected by virtual weather, the first one was operational or the second one. And the argument made by the restaurant was, well, hey, look, the second order says that the first order was cancelled and replaced by this one. And the new one says that it doesn’t apply to the Builders Lien Act. Therefore, they argued there was no suspension of the renting of time and therefore the contractor was out of time. That was the argument that did not succeed. The master on that application found that even though the first order which did apply to the Builders Lien Act was replaced by the new order. It was still effective at the time that it existed, and therefore the contractor was still within time to file the required Certificate of Pending Litigation so they could carry on with their claim for what they say was not being paid for some work. So that’s sort of the particular outcome in that case. But I think it shows you how many of these things are likely to be complicated going forward, we’re likely to have a long tail of potential legal issues that arise from things like this, interpreting, you know, what do these emergency orders actually mean and what was their effect. And of course, when all of these things were put in place, it was, you know, beginning middle of March, you can imagine you know, there was quite a bit of urgency to getting these things in place. And I suspect we will see over the next few years various other cases like this one interpreting what do they, in fact, actually mean? Because they what they potentially have an effect on all kinds of issues and circumstances, some of which may just not have been foreseen when the orders were created.
Adam Stirling [00:21:45] Michael Mulligan every Thursday during the second half of our second hour here on CFAX 10 70, Legally Speaking. We appreciate your time, as always.
Michael T. Mulligan [00:21:53] Always a pleasure. Stay safe.
Adam Stirling [00:21:54] All right. You too. We’ll talk to you next week. Bye now.
Automatically Transcribed on October 29, 2020 – MULLIGAN DEFENCE LAWYERS