Legally Speaking with Michael Mulligan
Diplomatic Immunity – The wife of a US diplomat killed a British teenager in a car accident but was able to avoid prosecution and leave the UK as a result of diplomatic immunity. Topics discussed include the Vienna Convention on Diplomatic Relations and how this is implemented in Canada.
Other related issued include diplomats not having to pay parking tickets, how diplomats suspected of impaired driving are dealt with in Canada, and immunity from having to pay for parking in Victoria, BC for a list of people including vehicles bearing the flag or insignia of the Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island.
Interestingly, as section 71 (11) of the City of Victoria Streets and Traffic Bylaw is drafted, the immunity from having to pay for parking doesn’t seem to be restricted to the actual Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island, but rather appears to apply to any vehicle bearing one of their flags or insignias.
Also discussed is a recent agreement between the Government of BC, and the Association of Legal Aid Lawyers to modestly increase what legal aid lawyers are paid. The increase in pay is still much less than what the government pays lawyers doing prosecution, or other government work.
While the Government of BC will still be diverting more than half the funds raised every year from a special tax that was intended to fund legal aid, the recognition of the Association of Legal Aid Lawyers as a bargaining agent for lawyers doing this work may result in future improvements for a long underfunded system.
Legally Speaking is live on CFAX 1070 every Thursday at 10:30 am.
Legally Speaking Oct 17
Adam Stirling [00:00:00] Legally Speaking, here on CFAX 1070 with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers, as we take a look at the latest stories in the news, coming up, the intricacies of parking bylaws. But first, Michael, good morning, by the way. Thanks for coming in, as always.
Michael T. Mulligan [00:00:15] Hi… Glad to be here. It’s a nice dry day underneath the umbrella.
Adam Stirling [00:00:20] This is an ordinary term that people who have seen it in movies, like me, will use probably far too often; diplomatic immunity in a legal sense. What, what does that actually mean?
Michael T. Mulligan [00:00:29] Indeed. And this has actually been a live issue over the past few days as a result of an incident that occurred in the UK. And what happened in the UK was the wife of an American Diplomat was driving and was involved in a car crash that wound up killing, a very unfortunate, 19-year-old named Harry Dunn. And because of her status, being the spouse of a diplomat, she enjoyed Diplomatic Immunity. And so, she a couple of days later got an airplane and flew back to the United States, causing much diplomatic hoo-ha over how that transpired. There was actually some effort by Donald Trump to mediate this by inviting over the family of the deceased teenager and then advising them that the woman was in the next room at the White House and asking whether they would like her to come in and apologize, to which they said no. And went back to the UK. So, the back that’s the immediate background to this.
Adam Stirling [00:01:30] You know, that got lost in the letter that was drafted to Turkey incident, which is a separate incident. But I had heard that and to be honest, I thought it was a joke when I heard it.
Michael T. Mulligan [00:01:39] Yeah, it’s a little bit of a tactless approach. Wouldn’t one thing, that perhaps surprising the family with this person’s presence in the next room might not go over well? Anyways, it didn’t. All right. But it’s raised this general issue of diplomatic immunity. What is it? How does that apply? Where does that come from and how far does it extend? And the modern codification of diplomatic immunity comes from a treaty, the Vienna Convention, which was entered into back in the 1960s, and that was then by various states codified, locally, like put into local law to provide various levels of immunity to various different diplomatic individuals. And the concept there, it’s not hard to imagine, you know, you perhaps wouldn’t want to be the, let’s say, you know, Canadian Diplomat stationed in some potentially unstable country that doesn’t enjoy the rule of law. Lest you just find that when Canada does something that displeases the ruler of said country, you find yourself charged with something or you find your family imprisoned or that’s the origin of it. But it’s fairly broad. Canada extends it. Other countries extend it as well. And in fact, in Canada, we have an act that deals with it’s called the Foreign Missions and International Organizations Act. And it sets out a whole array of different people who involve, involve or enjoy, different levels of diplomatic immunity. And it would start with somebody who would be, what is described as, the diplomatic agent, for example, the diplomat from, you know, the United Kingdom, for example. But immunity doesn’t end there. And again, the reason for that is pretty clear; even if the diplomat enjoyed immunity, that would be pretty hollow if some state could come in and then just arrest the wife of the diplomat or all of their aides or whatnot. So, it extends to a whole wide range of categories, admin and technical staff, service staff, career consular officers, employees of it, spouses. All of these people enjoy various different levels of immunity. And the immunity extends to things like prohibiting searches of their homes in some cases, like no search warrant to go in to search the diplomat’s home. You can’t go to a judge and get the authority to go and rummage around the U.S. diplomats’ home in Ottawa. Right. That’s not on. Moreover, if these people are alleged to have committed crimes, they cannot be prosecuted. They’re immune from jury duty. They’re immune in many cases from being called as a witness. Right. If they want to show up and testify. That’s fine. But they’re under absolutely no obligation to do that. And the… It’s this sort of thing that creates issues when you have like, OK, well, what exactly is the status of, for example, the wife of the diplomat? Well, what is that person’s status? In that case, you’d have to look at the particular domestic law in the country where the diplomat is residing to see just how far the protection goes. Another important concept is that the diplomat cannot waive their immunity, like the diplomat can’t say, oh, that’s fine, you can go ahead, prosecute me, I feel responsible. Only the country who has sent the diplomat would have the authority to waive diplomatic immunity.
Adam Stirling [00:05:08] Interesting.
Michael T. Mulligan [00:05:09] I imagine there the concern would be things like, well, hey, look, you’re a Canadian diplomat in some unstable little country just on some video recorded statement read.
Adam Stirling [00:05:18] I have not been tortured. Ya…
Michael T. Mulligan [00:05:20] I have not been tortured. I waive my immunity. That would be undesirable.
Michael T. Mulligan [00:05:24] No. This immunity has extended in some cases, perhaps further than might have been intended. For example, there’s been an ongoing problem in New York and other cities where there are a large number of diplomats involving things like parking infractions. So like in New York, U.N. officials who enjoy diplomatic immunity, and there be thousands of them, have for many years caused problems because they just park with impunity, because there’s, well, they’re just immune from the law dealing with parking and ultimately, the remedy when somebody, let’s say, the diplomat from some country murdered somebody. Right. Or is alleged to have. Well, ordinarily, you would expect either that country to decide to waive the immunity or you would expect in some lesser case for that country to deal with the problem themselves. But really, the only authority of the state that’s hosting a diplomat would be to expel them, get out. But you’re probably not expelling somebody for parking too long outside the United Nations in a red zone.
Adam Stirling [00:06:26] How long is how long, I suppose?
Michael T. Mulligan [00:06:27] Yeah.
Adam Stirling [00:06:28] You know, it’s like, oh, it’s that guy again. He’s not supposed to be there. And every day that diplomatic car is there, you know, they probably crash the car into a cube before they actually went after the person. But I digress.
Michael T. Mulligan [00:06:38] So in Canada, we’ve actually this is interesting. We’ve actually formulated this new specific policy. I guess it comes up frequently to deal with impaired driving allegations by various people who enjoy diplomatic immunity because we can’t prosecute them. What do you do when the diplomat’s wife is pulled over at the roadblock and blows over and we’ve created…
Adam Stirling [00:07:01] This entire let her go.
Michael T. Mulligan [00:07:02] Yes. Well, you can’t’ stop her you can’t arrest her…
Adam Stirling [00:07:03] …well, she’s allowed to drive drunk, try to get out of her way.
Michael T. Mulligan [00:07:06] So we’ve got this policy in place now for that, which would be requesting permission from the country to suspend that person’s driving privileges or requesting that the head of the mission undertake in writing to stop that person from continuing to drive for some period of time.
Adam Stirling [00:07:26] At the roadside?
Michael T. Mulligan [00:07:27] Well, no. Eventually, there will be some, you know, ornate letter written with some nice looking letterhead saying, you know, please, kind sir, would you please stop Mrs. Smith, the alleged impaired driver from continuing to drive her Mercedes with, you know, the flags on it down the road while drunk. And ultimately, I guess if they didn’t do that and Mrs. Smith just kept on driving around, they say that Canada would then ultimately expel that person. So that’s really the extent of our power. We can ask nicely. But it’s important because it protects us in other circumstances where we might want some protection.
Adam Stirling [00:08:01] Indeed.
Michael T. Mulligan [00:08:01] Now, all of that background led me to have a look. Again, there’s something I recalled from the distant past, which was the Victoria, City of Victoria Streets and Traffic Bylaw. And it caused me to look at that, I had a vague memory of it from years ago. And the City of Victoria has actually seen fit to grant immunity to a number of, in a number of circumstances, from the obligation to pay for parking. So, we’ve created our own little immune categories of immunity under this Streets and Traffic Bylaw, and in particular in section 71 of that bylaw. And that’s the one which deals with metered parking and metered zones. And then the following Section 72, which deals with pay stations, all the new things that we’ve got. And a subsection of that subsection 11 deals with a number of categories of vehicles that are immune from having to pay for parking. And it’s an interesting list, it includes a list of things like a vehicle that belongs to the city, its officers, employees or agents. I guess that makes sense. Why would the city pay for parking to itself to park its own vehicle somewhere? That’s probably only sensible.
Adam Stirling [00:09:15] That is exactly the kind of thing we would normally do when you say it out loud and just pointing that out. But we should avoid that.
Michael T. Mulligan [00:09:20] So then the other if things are excluded here, subsection B: A vehicle that belongs to and is being used to transport, so they actually have to own it, it can’t be some other vehicle, The mayor, a city councilor, a member of parliament, a member of the legislative assembly, and then there must they must those categories of people who must own the car, must have a notice signed by the Director of Engineering or Chief of Police displayed on the vehicle. So, the Mayor can park without paying as long as she’s dutifully got her notice signed by the Director of Engineering or the Chief of Police, and she’s displayed it and the vehicle has to belong to her. That’s important. Can’t be her friend’s car. And then we exclude various other things and ambulance, that makes sense, the vehicle being used by an organized fire department or police department. Interestingly they use the term organized.
Adam Stirling [00:10:08] I caught that, too. What about a disorganized one…?
Michael T. Mulligan [00:10:10] That we might wind up with that ticket. Sorry, your fire departments and utter chaos. We’re ticketing you. Pull up your…
Adam Stirling [00:10:16] …everybody’s free parking gone. This is serious.
Michael T. Mulligan [00:10:20] A state of disorganization. But the part that made me smile the most, this is the part that I recalled from years ago is the exception found in section 71, sub 11e and it reads this way: e) a vehicle bearing the flag or insignia of the lieutenant governor of British Columbia or of the senior officer commanding the Canadian Armed Forces on Vancouver Island. Now, the interesting thing about how that is worded is, unlike all of the other exemptions, it does not say the vehicle must belong to the Lieutenant Governor, nor does it say the Lieutenant Governor must be using the vehicle. It simply says a vehicle bearing the flag or insignia of the Lieutenant Governor. That’s an interesting flag, by the way. Now, I should say, a person certainly wouldn’t want to be impersonating the Lieutenant Governor of British Columbia, nor the senior officer commanding the armed forces on Vancouver Island. But I should say, this action doesn’t require that. It doesn’t require you to be either of those people. So, you know, it’s it would be an interesting question if somebody had, for example, I heart the Lieutenant Governor of British Columbia and his flag or her flag. Here it is, that person on the wording of that section, which is also incorporated referential into the following section, section 72, which deals with pay stations zones, would be immune from paying for parking. So, you’ve left to leave for another day to see whether that issue ever gets litigated. But it is a very interesting subsection. That being subsection E, I was able to find with some ease the flag of the Lieutenant Governor of British Columbia.
Adam Stirling [00:11:55] Are you going to try this? Is this the experiment.
Michael T. Mulligan [00:11:57] I’m not sure I’ve got time for this particular litigation, but out of interest, I’d be interested to know whether any listeners are able to locate the flag or insignia of the Senior Officer Commanding the Canadian Armed Forces of Vancouver Island. That would be an interesting experiment in Google if somebody has a few minutes. But again, don’t impersonate those people if you want to have the flag or insignia, those people on your Honda Civic. You might want to have a clearer notice; I am not the Commanding Officer of the Canadian Armed Forces for Vancouver Island and this is not his Honda Civic. But he…
Adam Stirling [00:12:27] …somebody gets arrested by the military that he just trying to get out of parking…
Michael T. Mulligan [00:12:30] That… that does not appear to be a requirement. So, let’s see how many people see how quickly the Internet can find the required insignia.
Adam Stirling [00:12:38] You know, I look at this and this is just from experience covering various stories like this as well as, of course, constitutional law. And every word in that document, it seems has a stack of court cases a mile high attached to it is exactly what it means, but it says bearing the flag. I note the use of the definite article instead of an indefinite flag or insignia of the Lieutenant Governor. I wonder if there is a provision somewhere where the Lieutenant Governor has to be present for that to be the flag? I don’t know. I’m just sort of.
Michael T. Mulligan [00:13:04] Yeah.
Adam Stirling [00:13:04] I’m trying to think of ways where.
Michael T. Mulligan [00:13:06] Well…
Adam Stirling [00:13:06] There’s no way it’s that easy…
Michael T. Mulligan [00:13:07] you might when you might want to then reference the insignia because the language is a vehicle bearing the flag or insignia of those individuals. And again, unlike all the other subsections here…
Adam Stirling [00:13:17] There’s no owner specify…
Michael T. Mulligan [00:13:18] Specify it must belong to these people or it must be an ambulance or a, you know, a vehicle belonging to an organized fire department, for example. This one doesn’t require any, have any of those provisos. But again, don’t impersonate these people. Make sure you’re not trying to trick somebody into thinking that Honda Civic is, in fact, the, you know, Lieutenant Governor going out to Starbucks for a latte before starting work in the day.
Adam Stirling [00:13:43] All right. That’s, that’s a fun story. I like that. Thank you. I want to take a quick break because there’s an important matter that you and I discussed from time to time. It’s one that I feel very strongly about. I think you do a very good job of communicating. It is access to the justice system for those who do not have the financial means to retain counsel. We’ve seen a change announced recently. I want your thoughts on it right after this.
Commercial [00:14:04] COMMERCIAL
Commercial [00:17:46] Keeping you informed. Adam Stirling on CFAX 1070.
Adam Stirling [00:17:51] We should note that the diplomatic immunity provision for the purposes of parking is, that won’t stop you from getting the ticket. Michael Mulligan from Mulligan Defence Lawyers. So, you’ll still find it on your vehicle when you return, it’s afterward that a process would have to go.
Michael T. Mulligan [00:18:05] Yeah, you’re going to have to ask yourself just exactly how much time do you have on your hands to litigate this issue? Also, I should say, don’t get yourself charged with treason if you’re not taking over.
Adam Stirling [00:18:14] Serious.
Michael T. Mulligan [00:18:15] You’re just parking and see if anyone’s got time to litigate that issue.
Adam Stirling [00:18:20] Sort of a footnote on a change to a law. This law was altered after citizens began trying to avoid it and incidentally, committed treason. Yeah. So, I do want to talk about access to justice in general, because regardless of how well-read a person may be, regardless of how knowledgeable or intelligent an ordinary person can be. Even if somebody who’s already a lawyer, if you engage in a legal process, the best advice you can get is to hire a lawyer, even if you’re already a lawyer. Ordinary folks navigating the justice system can be an extremely onerous prospect. I do not recommend it for any person, regardless of what they feel their abilities are. Recognizing that, we have a system in place to provide lawyers for those who cannot afford them. You have done a very good job communicating for a couple of years now, how, how little money there actually is available. What has been announced recently?
Michael T. Mulligan [00:19:13] Yeah. There’s been some happy progress in what’s been a pretty dark area for the last more than 20 plus years in British Columbia. The history of it is that B.C. back in the 1990s when the NDP was in power, they recognized, at that time even, the lack of funding for legal aid and there was a special tax imposed on all lawyers’ bills. So, PST, you don’t pay on any other service, like if you hire an architect or an accountant or something. They brought in this tax saying this money’s going to fund legal aid in British Columbia. Pretty quickly, the tax started collecting more money than was going to legal aid. And when the Liberals were in opposition, they dumped all over the NDP saying, isn’t this wrong? This money was intended to help the poor. What are you doing? Then, of course, the liberals got into power and then in 2002, they cut legal aid funding by 40 percent. They closed all of the legal aid offices across the province. They canceled virtually all family legal aid, fired all the lawyers who did poverty law work. It was a pretty awful event for anyone concerned with access to justice for people that can’t otherwise afford it. And then things have they kept the tax, of course. And it’s been in place continuously. And now we’re at the point where the government collects about three times more in that tax than they actually provide to pay for legal aid. It’s really pretty astonishing. So, a few months ago, this is the recent positive news, an associated group called the Association of Legal Aid Lawyers had organized a service withdrawal by lawyers who do that work. And the other thing has happened is for more now than 20 years, there has been no increase in the amount of money, the meager amount of money paid to lawyers who agreed to do these legal aid cases. And it’s gotten to the point where it is a tiny fraction of what would otherwise be paid to do the work and a completely inadequate amount of money to provide proper assistance to people who manage to somehow qualify. Because that’s another issue, of course. Both the inadequate funding now, for well more than 20 years, has meant that the entire category of people who used to get help now get no help at all. People only discover that when they wind up actually being in that position and finding out, no, there’s no one is going to help you get that child support. There’s no one who’s going to help you, you know if you’re alleged to have committed some crime, no one. And that becomes a shock to people who sort of assume, oh, well, somebody will be there. Right. In fact, in many cases, the answer is no. There is no one. We fired all the poverty law lawyers, we stopped covering the family law problems, and then finally they lowered the threshold to get coverage to the point where if you have a full-time minimum wage job, you’re considered too rich for any help, which is just an outrageous state of affairs.
Adam Stirling [00:22:06] Yeah, it is. Because what happens somebody finds themselves is subject to criminal prosecution, they make a modest wage, but no more than 20. What is it? 28,000 a year? Something like that is the cut-off.
Michael T. Mulligan [00:22:16] It’s, it’s for a single person, if you make minimum wage full time, you, now, you’re considered too rich to qualify. And you have no hope of being able to afford counsel if you’re making an income of that amount. It’s simply impossible.
Adam Stirling [00:22:31] So what do you do? Do you go to the bank and say, hey, can you give me a bunch of money? I’m going to lose my freedom or…
Michael T. Mulligan [00:22:36] Well, some of you. Yeah. For many people, it’s like, look, they come to that shocking realization that there’s nothing there for them. And they would then go through a succession of ask your family, ask your friends, see what you can borrow. And if you can’t do any of those things you wish simply on your own, which to many people is completely shocking because, they not unreasonably would have thought, hey, I should at least in a country like Canada, a province like British Columbia, have a fair trial. Most people would be shocked to learn that we are prepared to conduct criminal trials or allow single moms or other people that just desperately need help to go into court absolutely on their own because we’re just unwilling to spend the money which we’ve already collected to pay for legal help. It’s pretty awful. So, a few months ago, after many years of this, there was to be a service withdrawal by lawyers who do that work. And that’s a difficult thing for people to do, of course, because the lawyers who are doing that work are doing it out of profound concern for ensuring people get help. And if the only way you have to create some pressure on the government is to stop helping the desperately poor people who really, really need help. That’s no easy thing to do.
Adam Stirling [00:23:51] No.
Michael T. Mulligan [00:23:51] So a couple of days before that service withdrawal was to start, the government agreed to enter into negotiations. That was really positive. And there has been just announced this week that they’ve come to a three-year agreement, which is really good news given the context of really awful news now for 25 years. And the particular agreement is modest in fairness. It’s things like lawyers who do that work who were paid $83.90 we’ll see a raise, this is the first one in like 20 years, to $104.88 and then some small amounts over a couple of years following that. Now, I should say this for some people who may think, well, it seems like a lot of money. But the other thing that happens is what they’ll do is they’ll say, well, we’re providing somebody three or four hours of legal work at was $83 an hour and a $104 an hour to, for example, try to get a protection order so that your children are safe. No lawyer can possibly do the work in the amount of time involved. So, they just do it and they wind up billing somebody, you know, billing Legal Aid $300 or $400 for two days’ work. That’s what actually happens.
Adam Stirling [00:25:04] How many hours is in say an ordinary criminal defence, all that goes to trial? Hundreds. Wouldn’t it? Or.
Michael T. Mulligan [00:25:10] It could well be. I mean, to give you an idea for criminal matters, they are ordinarily dealt within what’s called a block tariff amount. They just set a particular amount to, for example, have a trial. Right. And the amount involved would represent like, let’s say, a run of the mill trial, something that might be a day in court, might take the lawyer two or three days work to prepare for the thing, somebody doing that might be paid under the legal aid scheme, you know, $900, something like that for several days work. And one of the other, I think, serious misconceptions is people I think sometimes think, oh, well, if the lawyer somehow drags that out, appears a bunch of times in court or something, they’re somehow making more money. The practical reality is, they’re not paid for any of those things. So, the lawyer doing that is really, frankly, showing up there as a volunteer.
Adam Stirling [00:25:57] All right.
Michael T. Mulligan [00:25:58] So the announcement was just made, which is positive, is a small increase that’s going to amount to about 20 million dollars a year. It’ll provide for the first increase in pay in more than 20 years for people doing that work. That’s positive, although modest. It’s going to mean that the legal aid budget is now going to represent, I think, about 95 million out of the 250 million in round numbers they’re collecting pursuant to that tax. It’s still an abomination.
Adam Stirling [00:26:22] Yeah, we can afford it…
Michael T. Mulligan [00:26:22] Well, that’s a little more. Yeah, but I think the positive thing here, the most positive thing is that the government has recognized that group, the Association of Legal Aid Lawyers, as the bargaining agent for lawyers who do that work. So, what it will hopefully mean in years going forward is that there can be further negotiations. This agreement was for three years that will try to get that put back in line. I often thought, you know, a fair way to approach it might be to, you know, the government sets a rate they pay for lawyers who are defending government employees, for example, who are charged with offenses or defending the government when they go to court.
Adam Stirling [00:27:02] It’s so common it’s standardized, that is disappointing?
Michael T. Mulligan [00:27:03] So there…there’s a standard rate for that often thought, to be fair, make it the same rate as what they’re paying for legal aid. That seems like a fair approach.
Adam Stirling [00:27:11] Oh, I see where you are going there…
Michael T. Mulligan [00:27:12] I’m not sure I am getting a lot of traction there. But anyway, it’s some positive news after very many years of darkness. So hopefully it does good things for access to justice.
Adam Stirling [00:27:20] All right. That’s all the time for this week. Michael, thank you as always. Legally Speaking on CFAX 1070, Michael Mulligan from Mulligan Defence Lawyers. See you next week.
Michael T. Mulligan [00:27:27] Thank you.
Automatically Transcribed on October 17, 2019 – MULLIGAN DEFENCE LAWYERS