This week on Legally Speaking with Michael Mulligan:
A City of Victoria Councillor was caught on video offering money to a tow truck driver and arguing with an RCMP office, in an unsuccessful attempt to dissuade the tow truck driver from removing cars associated with a logging blockade that has been enjoined by a BC Supreme Court injunction.
This activity is discussed in the context of the reasons for judgment granting the injunction.
In his reasons for judgment, the judge referenced section 423 (1) of the Criminal Code. That section makes it a criminal offence to block or obstruct a highway or to watch or beset a person’s place of work, for the purpose of compelling someone to abstain from doing anything that they have the legal right to do.
The judge pointed out that an injunction against committing what would already be a criminal offence is possible where the criminal conduct affects the exercise of a private right.
Also on the show, the Justice Centre for Constitutional Freedoms, a right-wing legal advocacy group, was caught using a private detective to conduct surveillance on the Chief Justice of the Court of Queen’s Bench in Manitoba.
The Justice Centre for Constitutional Freedoms was litigating a case, with the Chief Justice, on behalf of seven Manitoba churches, arguing that their right to worship and assemble was violated by COVID-19 restrictions.
The Justice Centre’s Litigation Director claimed responsibility for the decision.
For his part, the Chief Justice, who spotted the surveillance, advised that he would continue to hear the case. He surmised that it was an effort to gather evidence about his compliance with COVID health restrictions.
The surveillance efforts apparently included the judge’s home and cottage.
Finally, on the show, a new government website that provides information concerning the process to pay, or dispute, various kinds of tickets is discussed.
Tickets can be issued for provincial, federal, and municipal offences and each of these has a different process to pay or dispute it.
An automated transcript of the show:
Legally Speaking July 15, 2021
Adam Stirling [00:00:00] It’s time for, Legally Speaking, joining us, as always, Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael Mulligan.
Michael T. Mulligan [00:00:07] Good morning. Always great to be here.
Adam Stirling [00:00:09] It’s been a fascinating week with lots of folks expressing their best understanding of how the law works. But it always I find it always a benefit to touch base with you and hear about how the courts work in the latest developments and legal affairs.
Michael T. Mulligan [00:00:23] Yeah, there’s never a shortage of things going on, it would seem. There’s definitely never a shortage of material.
Adam Stirling [00:00:29] Know what’s on our agenda today?
Michael T. Mulligan [00:00:32] Well, actually, two of the first things I wanted to talk about happened to be adjacent sections of the Criminal Code. The first one I want to talk about, you discussed earlier today in the context of Councillor Isitt, the video of him up on the logging road.
Adam Stirling [00:00:51] Yes.
Michael T. Mulligan [00:00:52] Involved references made by the, the interaction involved him apparently trying to persuade a tow truck driver not to tow a vehicle away and so forth. And that caused me to reread the Reasons for Judgment of the judge who granted the original injunction in that case. And in granting the injunction, the judge talked about the fact that some of the activity that was apparently going on as part of the protest there, in the view of the judge, was clearly in contravention of the first section of the criminal code that I wanted to talk about.
Adam Stirling [00:01:37] Mm hmm.
Michael T. Mulligan [00:01:38] And the judge mentioned in his reasons, Section 423 of the Criminal Code that the heading of that section is Intimidation. And it’s a section which is designed to prohibit various activity which might be broadly viewed as intimidation. And in that regard, the section that, the sections that are part of that section the judge was referring to, makes it a criminal offense for somebody to engage in activity which would try to cause another person to abstain from doing something which they have a lawful right to do or to compel them to do something they have a lawful right to abstain from doing. And in particular and the judge summarized it in his reasons, but Sub F of Section 423 one provides that it is an offense if you “besets or watches the place where another person resides, works, carries on business or happens to be or; (g) you block or obstruct a highway.” And so, the point the judge was making in this portion of his reasons for judgment was that some of the activity which is apparently going on as part of the protest, would appear to contravene the section of the Criminal Code. You’re not permitted to block a highway, for example, in order to prevent somebody from doing something like going to work or proceeding on their way.
Adam Stirling [00:03:18] Yes.
Michael T. Mulligan [00:03:19] If you do that, you actually contravene Section 423 of the Criminal Code. And in his reasons for a judgment, the judge was pointing out that not only is that a criminal offense to do that, but you can wind up with an injunction if criminal activity is interfering with the lawful rights of a private individual. Right.
Adam Stirling [00:03:44] of course.
Michael T. Mulligan [00:03:45] And so even absent any form of an injunction at all, if somebody decides that they are going to go and block or obstruct a highway for the purpose of preventing somebody from doing something which they are lawfully permitted to do, you’re committing a crime and you’re also committing a criminal offense. If you’re setting you’re watching where somebody is working or residing with the intent of preventing them from doing something they’re lawfully permitted to do.
Adam Stirling [00:04:15] What does beset mean, I stumbled on that earlier, I didn’t know what besets means, legally.
Michael T. Mulligan [00:04:19] I think the connotation would be sort of malevolent watching. Right.
Adam Stirling [00:04:25] Alright, okay.
Michael T. Mulligan [00:04:25] And so you could imagine, for example, if somebody said, look, I’m going to just sit outside your place of employment 24 hours a day and stare at you in a menacing fashion.
Adam Stirling [00:04:37] hmm ahh.
Michael T. Mulligan [00:04:37] You might get there if you were doing that for the purpose of preventing the person from doing something they were lawfully permitted to do.
Adam Stirling [00:04:43] Okay.
Michael T. Mulligan [00:04:45] And so the judge pointed out the look, even though this is already even without an injunction, could amount to, in the judge’s view, and apparently was, would constitute a criminal offense. A judge is permitted to also grant an injunction against the activity. And so that’s the context in which you should be viewing what went on that day. I must say, my other impression, watching it and watching the unfolding of the continued protest efforts there.
Adam Stirling [00:05:18] mhmm.
Michael T. Mulligan [00:05:19] Particularly with respect to the Councillor, Isitt or Isitt.
Adam Stirling [00:05:23] mhmm.
Michael T. Mulligan [00:05:23] That there is it is that he is somebody who, by virtue of his education and training, he’s somebody who’s got a law degree is clearly a bright fellow.
Adam Stirling [00:05:34] mhmm.
Michael T. Mulligan [00:05:35] With lots of education. It is, from my perspective, at least profoundly disappointing that somebody with that sort of background isn’t explaining some of the bigger principles which are at stake when people are engaged in willful breaching of court orders. It seems to me that somebody in that position should be, rather than encouraging that behaviour or assisting it in some way, should be using his position to explain why it is that it is so important to all of us respect court orders. The importance of the rule of law, and how that is so profoundly undermined when people choose to willfully breach orders, simply in order to get attention.
Adam Stirling [00:06:37] hmm.
Michael T. Mulligan [00:06:37] And the judge, in his reasons for granting the injunction, on multiple occasions, points out the legitimacy of the protest activity. And he speaks about the significance of global warming.
Adam Stirling [00:06:52] Yes.
Michael T. Mulligan [00:06:53] Why there can be a public interest in preserving old growth forests. The judge is clear to point out that it’s a matter of important public policy. But the judge also points out that in granting an injunction to stop engaging in what could also be criminal activity, that is not a comment on the wisdom of the public policy decision. The judge is not commenting on whether the logging of old growth forests is a good policy decision or not. And what’s at stake when people engage in activity like openly breaching court orders to get attention for their cause, because, of course, that’s all that can be affected there.
Adam Stirling [00:07:44] mhmm.
Michael T. Mulligan [00:07:44] The judge doesn’t have authority at the end of the day to decide whether there should be logging of a forest. That’s for the government to decide, not for a judge to decide.
Adam Stirling [00:07:55] Yes.
Michael T. Mulligan [00:07:55] And so there is no hope that that kind of activity, that is to say, breaching a court order is going to cause a judge at some point to say, oh, well, you know, you’ve made an excellent point here about the forests, I guess, carry on. That simply won’t happen. And so not only does that activity profoundly undermine respect for the rule of law, but it has no prospect of having some legal effect at all. And so genuinely, the protesting that’s going on there is pointed in the wrong direction. And I think some perhaps increase creativity ought to be used to point the legitimate protest activity at the individuals who are charged with making the public policy decision about should we, should there be logging there. Right. That’s a legitimate issue.
Adam Stirling [00:08:53] Yeah.
Michael T. Mulligan [00:08:53] But that decision is not a decision that the Supreme Court Judge makes. That is a decision that the Provincial Government makes. That’s why we elect people to make those decisions. It’s not for a judge to decide. And so, it strikes me that somebody with that sort of background, Mr. Isitt has he should have, he should be using that to explain those principles to people, why the rule of law is so important and why the intentional breaching of court orders is not an appropriate way to get attention, even for an important issue. And I must say, it is disappointing to me when somebody who would have the education and training to explain that and where the decisions are made and how they are made and how change might be effected, that he isn’t using his skills and position in that way, but instead apparently acting in in support of activity which is prohibited by a court order and may also be, in the view of the judge, in contravention of a section of the criminal code. I just think we should expect more than that from somebody who’s bright, well-educated and has a law degree.
Adam Stirling [00:10:16] Indeed. Are you familiar with the role of a legal assistant? I’m a familiar with the term paralegal that is often described as a legal assistant. But I’ve I don’t know the distinction to you.
Michael T. Mulligan [00:10:27] Yeah, there has been over the years some effort. The Law Society to regulate legal professionals who are not lawyers, and there is now a process to prove somebody who is a paralegal who should be permitted to engage in certain legal work under the supervision of a lawyer.
Adam Stirling [00:10:48] mhmm.
Michael T. Mulligan [00:10:48] And a legal assistant would also be somebody who would be somebody with legal experience, who would do legal work under the supervision of a lawyer. And so let’s say, for example, if somebody was buying or selling a piece of property, for example, and you went to a lawyer to help deal with the conveyance, there could be, for example, a legal assistant who would have experience dealing with the forms of paperwork and everything that was required to do the transaction and who would ordinarily prepare those things, to then be reviewed by the lawyer and explain to the client. And so, it is a legitimate position and one which I think, I guess that’s the way to explain it, would be somebody who has legal experience, who would be operating under the supervision of a lawyer to perform tasks that they would have experienced to do. The lawyer is ultimately responsible for what a legal assistant or a paralegal would be doing.
Adam Stirling [00:11:47] mhmm.
Michael T. Mulligan [00:11:47] But they are both roles which would sort of make the justice system more efficient and affordable. If you have to have the lawyer doing all of the paperwork to convey your home.
Adam Stirling [00:11:59] mhmm.
Michael T. Mulligan [00:11:59] That’s going to be a much more expensive proposition than if you had somebody who has specialized training to do that work operating with the assistance or supervision of a lawyer. It would be sort of like in a medical context, a nurse.
Adam Stirling [00:12:12] yes.
Michael T. Mulligan [00:12:12] Who is doing all sorts of work along with the doctor to care for a patient.
Adam Stirling [00:12:17] So an obligation, a legal assistant, disclose who is supervising them when they act in that capacity.
Michael T. Mulligan [00:12:23] I’m not aware of any Law Society Rule that would require that a legal assistant would not be permitted to operate free form.
Adam Stirling [00:12:31] oh yeah.
Michael T. Mulligan [00:12:31] Like you couldn’t have somebody to hang their shingle saying, I’m Joe Bloggs legal assistant. It would need to be you need to operate under the supervision of a lawyer who would ultimately be responsible for what the legal assistant would be doing.
Adam Stirling [00:12:44] Thank you very much, Michael Mulligan. And I just want to say thank you for all the good work that you have done on these airwaves and elsewhere in elevating public awareness and understanding of the justice system. I as an ordinary person, a layperson, I have things that I believe that I think were true, that have over the years, I have learned were inaccurate, thanks to the, legal, thanks to the education that you give us in terms of how the system actually works. So, I want to thank you, because you are one of the sources upon which I rely to better understand these matters. And I’m sure there are many members of our audience who would say the same. So, thank you.
Michael T. Mulligan [00:13:16] Well, thank you very much. I must say, I enjoy doing this every week. It is one of the things I really look forward to doing. And I think it is, you know, certainly a worthy endeavor to try to explain what some of us are doing every day up in court and in our offices so that right there just can be a good public understanding of what’s going on. The system is supposed to be transparent and understandable, and in my view at least, it can only help having some explanation for decisions that are made rather than having them appear to be in a vacuum or just getting a headline of something that might not appear reasonable without an explanation for how a decision was arrived at. So, I genuinely enjoy the opportunity to do it every week.
Adam Stirling [00:13:59] Absolutely. Me too. Let’s take our first break. We’ll be back in just a moment. The next case that we are going to discuss a very interesting one to do with what you are and are not permitted to do in terms of a judge presiding over a case involving you. This next one, you’ve got to hear this to believe it. Stick around.
Adam Stirling [00:14:17] We return to legally speaking on CFAX 1070 with Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers. At the beginning of our segment, Michael, you mentioned two adjacent sections of the Criminal Code that would inform our topics today.
Michael T. Mulligan [00:14:31] Yes, indeed. So, the first one we talked about was Section 423 of the Criminal Code. And right next to that is the ever popular 423.1. The 423.1 Section of the criminal code is entitled, sorry, Intimidation of a Justice System Participant or a Journalist.
Adam Stirling [00:14:51] hmm.
Michael T. Mulligan [00:14:51] And it is it is a section that makes it a specific offense to engage in conduct with the intent to provoke a state of fear in. And then various people are listed, including members of the public involved with the administration of criminal justice. So that might include a court registry staff or potentially jurors. It lists any justice system participant with the, to impede them in the performance of their duties. So that might include a judge, for example, or prosecutor or something like that.
Adam Stirling [00:15:27] mhmm.
Michael T. Mulligan [00:15:27] Journalists are also included. It is a specific offense, to engage in the prohibited activity with respect to a journalist in order to impede him or her in the transmission of public information in relation to a criminal organization.
Adam Stirling [00:15:41] hmm.
Michael T. Mulligan [00:15:41] And I should say that’s far from an abstract concern in the news, literally, today was a news of a journalist, a Dutch journalist who was shot in the head in Amsterdam and killed. And he was a journalist who specialized in reporting on organized crime.
Adam Stirling [00:16:02] Yes.
Michael T. Mulligan [00:16:03] And so it’s far from a fanciful notion that we need to offer some special protection to journalists who are engaged in that activity. And so that section has been discussed in the context of a decision made by the organizations called the Justice Center for Constitutional Freedoms.
Adam Stirling [00:16:25] hmm.
Michael T. Mulligan [00:16:25] So pretty, pretty well got every word you might like it title.
Adam Stirling [00:16:29] mhmm.
Michael T. Mulligan [00:16:29] Like justice or constitutional freedom.
Adam Stirling [00:16:31] Indeed.
Michael T. Mulligan [00:16:32] That organization, as it happens, is a kind of a right-wing organization that will launch court challenges, often based on constitutional arguments.
Adam Stirling [00:16:45] mhmm.
Michael T. Mulligan [00:16:46] And for example, on their Web page, they’ve got articles about things like the government’s war on worship or the issue of the issue of mandatory vaccines.
Adam Stirling [00:16:56] hmm.
Michael T. Mulligan [00:16:57] And in Manitoba, they are currently engaged in litigation with respect to covid restrictions in that province as they relate to churches. And so, they are arguing that restrictions on gatherings in churches to prevent covid were contrary to constitutional protections. So that is, that’s the litigation that they are currently involved in, their making, have made, similar arguments in B.C., Alberta and elsewhere. And so, in the context of that litigation, the case was being heard by the Chief Justice of the Court of Queen’s Bench there. And the decision was made to hire a private detectives, to follow the Chief Justice around, including to his private cabin, leaving the courthouse and at home. Apparently, an astute fellow, the Chief Justice noticed that he was being followed, leaving the courthouse, and that’s what caused this scheme to unwind and come to public attention.
Adam Stirling [00:18:18] wow.
Michael T. Mulligan [00:18:18] And so I must say, you would think that even without having specifically turned your mind to Section 423.1, you might think as a lawyer, boy, this is not a good way to approach, (laughter) the approach, your case, poor planning and.
Adam Stirling [00:18:38] Oh, yeah, yeah.
Michael T. Mulligan [00:18:41] Nonetheless, that is what happened. The fellow who was, what was his title, the president of the Justice Center for Constitutional Freedom. A Mr. Carpay admitted that he had done this, and he’s put himself on indefinite leave. The board of the organization is denying that they were aware of what the president was doing. But boy, is that troubling. For his part,. Interestingly, the Chief Justice has said that he’s going to continue to hear the case and won’t take any consideration of the tracking of him. It would appear that the Justice Center was engaged in the tracking of other public officials as well. They don’t seem to be too repentant about other tracking they were doing there. I think the explanation for the tracking, at least that the Chief Justice is articulated was a hope that they would catch somebody not following covid rules.
Adam Stirling [00:19:56] hmm.
Adam Stirling [00:19:56] And that that would be somehow useful in terms of putting pressure on somebody, obviously not appropriate with respect to with respect to the judge hearing the case. And I suppose there could be scope for debate about whether it would be appropriate to have private detectives besetting people’s homes and cabins and following them around other kinds of officials. Right. You can well imagine that not making a particularly good impression, if it turns out that the constitutional freedoms people are, you know, surveilling premiers or other public officials, you could well imagine that not being met with a great deal of warmth. And, you know, there would be legitimate issues about whether that activity, depending how it was carried out.
Adam Stirling [00:20:53] yes.
Michael T. Mulligan [00:20:54] Would be somehow an offense. But, boy, you would think that you could figure that out without having to look it up in the criminal code.
Adam Stirling [00:21:00] Yeah, I would yeah. I would suspect that an appropriate amount of genuflection is always appreciated by members of the judiciary. I used to wonder what the opposite of that was. I no longer wonder. It’s hiring a private investigator to follow around a judge. Not the best way to comport oneself, I would suspect.
Michael T. Mulligan [00:21:18] No, you would sort of expect more.
Adam Stirling [00:21:21] Oh, we’ve got about 90 seconds left in our segment today. Michael, what would you like to close with?
Michael T. Mulligan [00:21:27] Sure. I think probably a useful thing to close with would be telling people about a new service. The BC provincial government has put together a website to provide people information about tickets they might receive. The site is designed to give people information about various kinds of tickets, municipal tickets or provincial ones or federal ones. And they all have slightly different methods for disputing them or paying them and the times when you can do something and so on. And I think that there really is a need for that information for people because these things are handed out all the time.
Adam Stirling [00:22:04] Yes.
Michael T. Mulligan [00:22:04] It would affect many people and it may not always be clear exactly what somebody could do and how you could contested or how you might pay it or what some of the issues might be. And so, I think it’s just a worthwhile public service to tell people about the site so they can have a look the site. The link is ticekts.gov.bc.ca. While, I should say that the state seems to of course, it’s a government site, so it’s got a big button to pay the ticket. And then maybe I’ve got to make a couple of clicks to figure out all the disputed information. But with that being said, it does seem to be a good new resource with that sort of information for people. So, I do think it’s worth having a look at. If you’ve received a ticket and you want to sort out how can I dispute the thing or what would the process be for that or if I want to pay and how can I do that? I think that would be a good starting point, because I know we get calls from people wondering about those things. And often it doesn’t make economic sense to hire a lawyer or to provide all the information you might need about a ticket that could be for a relatively modest amount of money.
Adam Stirling [00:23:11] Yes.
Michael T. Mulligan [00:23:12] But still important people be able to access that information so that they can be treated fairly and know what their legal options are. So, there it is. It’s new, tickets.gov.bc.ca. If you’ve got a ticket and want to know what your options might be.
Adam Stirling [00:23:26] Michael Mulligan, thank you, as always, for everything that you do to help us better understand the legal system is greatly appreciated until next week.
Michael T. Mulligan [00:23:33] Always a pleasure. Have a great day.
Adam Stirling [00:23:34] All right. Talk to you then. Bye now.
Automatically Transcribed on July 16, 2021 – MULLIGAN DEFENCE LAWYERS