This week on Legally Speaking with Michael Mulligan:
Annaca Kobayashi, a 19-year-old woman from Langford, falsely reported to the police that a young man she knows had threatened her with a knife and sexually assaulted her.
A police investigation, including a review of a video recording where she claimed to have been threatened with the knife, revealed her story to be false.
Only after a third police interview did Ms. Kobayashi, who had a boyfriend at the time, admit that she made the story up.
The young man who was falsely accused spoke to the police and advised that Ms. Kobayashi and he had consensual sex.
Ms. Kobayashi was charged with public mischief for making the false report to the police. She eventually entered a guilty plea and received a conditional discharge with 24 months of probation and 50 hours of community work service.
A conditional discharge means that, if a period of probation is successfully completed, the person will be deemed not to have been convicted of a criminal offence and, after a period of time, the record of the conviction will automatically be removed from the CPIC computer system.
The test for a conditional discharge is whether avoiding a criminal conviction would be both in the best interests of the offender and not contrary to the public interest.
A conviction for threatening someone with a knife and sexually assaulting them would result in many years in jail.
Also on the show, the BC Court of Appeal overturned a conviction for sexual interference and sexual assault as a result of the trial judge reversing the burden of proof.
The case involved a complainant testifying that she was sexually assaulted, and the accused testifying that he did not do it.
The judge relied on the fact that the accused could not explain why the complainant would lie in order to convict him.
The accused person, in a criminal case, is not required to explain why a complainant would lie. To require this is to reverse the burden of proof.
As a result, a new trial has been ordered.
Finally, the BC Court of Appeal has allowed an 84-year-old man to remain in a trailer park he had been living at for more than a decade.
The trailer park was owned by the man’s brother. The brother had an agreement with the man that he could live in the trailer park for the rest of his life in exchange for providing work and services.
When the brother died, his executors attempted to evict the man, unless is began paying $350 per month is pad rent.
The Court of Appeal referenced the Manufactured Home Park Tenancy Actwhich provides for tenancy relationships to be made orally and defines rent broadly to include not just money but “value or a right given or agreed to be given” in return for the right of possession.
As a result, the Court of Appeal referred the case to the director of the Manufactured Home Park Tenancy Act to determine if a tenancy exists.
An automated transcript of the show:
Legally Speaking May 27, 2021
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Michael, good morning, how are you?
Michael T. Mulligan [00:00:05] I’m doing great. Always good to be here.
Adam Stirling [00:00:07] Some interesting items on the agenda today, a conditional discharge I’m reading here for making a false claim with respect to sexual assault. What happens if somebody files a police report, makes claims that prove not to be true?
Michael T. Mulligan [00:00:22] Well, in this case, apparently that, a conditional discharge. This particular case was a young lady, Annaca Kobayashi, a 19-year-old from Langford, who had made a report that she had been in the parking lot of the Home Depot. And she claimed that a young man that she knew came up and jumped into her car and then tried to persuade her to go and hang out with him rather than her boyfriend. And then she claimed that he pulled out a knife, forced her to go to his home, where she claimed that he sexually assaulted her. That, no doubt, that without, any doubt, is an extremely serious allegation.
Adam Stirling [00:01:08] Absolutely.
Michael T. Mulligan [00:01:09] It resulted in, as you would hope, the immediate response from the police. One of the things the police did was to go and obtain video from the Home Depot parking lot. And indeed, it showed this young woman was in the parking lot, but nobody approached her car. That led to the police interviewing her again, at which point she admitted that her claim about being forced at knifepoint was false. But she maintained a detailed claim that this young man that she knew had sexually assaulted her. The young man provided a detailed statement to the police indicating that they had had relations, but it was a completely, it was consensual. And then on a third interview, the young woman finally admitted that she made the entire thing up. And so that led to a charge under Section 140 of the Criminal Code.
Adam Stirling [00:02:05] Yes.
Michael T. Mulligan [00:02:05] which is an offence of public mischief. And it makes it an offence to make a false report to the police, that leads the police to conduct an investigation. It can also that section can be made out if you do something to cause another person to be suspected of committing an offence or that you report an offence that has not been committed. A variety of ways that can apply.
Adam Stirling [00:02:29] mhmm.
Michael T. Mulligan [00:02:29] And so this young lady was charged under that section and she last week pled guilty to doing exactly that, making this false complaint about this young man that she knew. And the judge ultimately sentenced this young lady to a period of probation associated with what’s called a conditional discharge. So that brings us to what is a conditional discharge and how might somebody get one and what does that mean for this person? And so, a conditional discharge is associated with a period of probation and if somebody successfully completes the period of probation and in this case, the probation imposed was for 24 months and involved doing 50 hours of community work. At the end of that, if a person successfully completes it, they would at that point be deemed not to have committed the offence. And that has a number of implications. First of all, after a period of time, the record of the conviction would be removed from CPIC which is the database maintained by the RCMP showing criminal convictions. And so, it wouldn’t show up, if she were to go and try to cross the border, for example, or if she was applying for a job. She was deemed not to have been convicted of the offence. And the test to get a conditional discharge comes from a case called Fallowfield. So, a BC case and the test is that a judge needs to be persuaded that the conditional discharge would be in the best interest of the offender, which is not usually a particularly high burden. You’ve got here a 19-year-old with no record. But the judge then also has to conclude that the granting of the discharge would not be contrary to the public interest. And that’s where it’s usually a more challenging weighing. And in a case like this of a repeated, detailed false claim of sexual assault.
Adam Stirling [00:04:38] Yes
Michael T. Mulligan [00:04:39] In my judgement, there really should be some careful weighing about whether it would be contrary to the public interest to avoid a criminal conviction for engaging in that sort of behaviour.
Adam Stirling [00:04:51] Yes.
Michael T. Mulligan [00:04:51] Which can have such devastating consequences.
Adam Stirling [00:04:55] Absolutely it can ruin somebody’s life. In fact, I’ve got people texting me right now saying a person that lies should get the same jail time that the other person would have gotten if they were believed, and I think that should happen.
Michael T. Mulligan [00:05:06] And I can tell you that if a person was convicted of the knifepoint kidnapping of somebody and then taking them and sexually assaulting them, the expected sentence would be measured in years. It’s an extremely serious allegation.
Adam Stirling [00:05:23] Yes.
Michael T. Mulligan [00:05:23] And so, you know, I think there is perhaps a lot of wisdom of Solomon in terms of that approach. But here this person will receive the benefit of this discharge, which means that in the future, others may not be aware that she has engaged in this conduct.
Adam Stirling [00:05:45] Troubling.
Michael T. Mulligan [00:05:46] I should also say about these kinds of allegations, even, for example, this young man that she had accused, even if somebody is ultimately acquitted at trial or in this case, the complainant admits that her reports were intentionally fabricated. And I should say in that respect, the, the lawyer for the young lady described her as amplifying her story so that she would be believed, which is entirely inconsistent with making a false report. That’s not an amplification. The effect of that is that people may be unaware of how she conducted herself. And of course, that may be important if you had somebody like that decide that making a false report in the future would somehow advantage them. And so, while I do think for many people without any previous difficulty, there is a strong case to be made for exercising restraint in sentencing and using sentences like a discharge to avoid a criminal record. This particular kind of behaviour, the intentional false report of a sexual assault leading to the investigation of a person in this way has such potentially devastating consequences that, you know, in cases like this, it may be that we do need to mark somebody with a criminal record so that we might be aware of who we are dealing with in the future and be able to assess whether similar claims like this ought to be believed.
Adam Stirling [00:07:33] Indeed. Our next story, overturning a conviction with respect to sexual assault and sexual interference. Where do we go on this one?
Michael T. Mulligan [00:07:41] So this ties in, I think in some respects with that last case we just talked about. And this was a decision from the BC court of Appeal, which was just released. And it is a case that demonstrates the challenge that can arise in trying to sort out whether reports of sexual assault are true or not. Right. And this particular case involved an allegation by a 15-year-old alleging that a 27-year-old man had sexually assaulted her by grabbing her bum and then putting his hands down her pants. That was the essence of the allegation. And it was a case where there was a trial and the man I should say he was charged with two things. He was charged with sexual interference and sexual assault. The reason for that is that somebody under the age of 16 is not capable of consenting to sexual activity. And you can have this offence of sexual interference. And I should say even the sexual assault count, consent would not be a defence, except in very narrow circumstances where there’s a closeness in age and no position of trust or authority. But you had a man charged with these two different offences, and at trial, both the complainant and the accused testified. And the complainant testified in a very brief fashion alleging that this activity occurred. And then the accuser testified, and his evidence amounted to it did not occur. There simply wasn’t any sexual activity on his version of events. And so, the judge was left dealing with; the trial judge, how do they assess that kind of evidence? And sometimes people refer to it as a he said she said and that is to some extent misleading. And in fact, here the trial judge used that kind of language. And the reason why that is a misleading way to describe cases of that kind is that in a criminal trial, it is not a matter of who does a judge prefer. Right, that would be the appropriate test if you were suing somebody for money.
Adam Stirling [00:10:06] Ah yes.
Michael T. Mulligan [00:10:06] Who’s more likely to be telling the truth. But in a criminal case, the test is always whether the crown has proven its case beyond all reasonable doubt. And that requires a judge or a jury to go through a special exercise, which is different from how you might make decisions in your ordinary life, where you’re just saying, well, who do I like better between these two people?
Adam Stirling [00:10:28] Yeah.
Michael T. Mulligan [00:10:29] They need to approach it, asking essentially, do you believe the accused? If not, could they be telling the truth? And then if not, is there proof, the evidence that you do accept that would satisfy the required test? Now here, the error the judge fell into and it became apparent when the Court of Appeal looked at all the various things the trial judge said. And that’s important to remember as well. When judges make decisions, they don’t just come out and give some thumbs up or thumbs down. They need to explain how they reached their decision. And everything that said or done in court is recorded, so it can be reviewed by the Court of Appeal.
Adam Stirling [00:11:09] Yes.
Michael T. Mulligan [00:11:10] And here the error that the trial judge fell into is the judge asked why the accused did not offer an explanation as to why the complainant would be making up these allegations.
Adam Stirling [00:11:25] yeah.
Michael T. Mulligan [00:11:25] And the reason why that is problematic, is that it’s not for the accused to have to explain why would this person make the false report. Like in the previous case we talked about, it would not be for the accused to say, well, why would this person make up the false report of being abducted at knifepoint in the Home Depot parking lot? Right. There may be all kinds of reasons for that. Maybe you don’t want to get in trouble with your boyfriend, or maybe she doesn’t want to get in trouble with her parents. Who knows?
Adam Stirling [00:11:52] Yes.
Michael T. Mulligan [00:11:52] But that’s beyond the scope of knowledge of the accused in many cases. And to approach it in that way, as the Court of Appeal pointed out, is to effectively reverse the burden of proof. It’s always for the crown to establish beyond a reasonable doubt that somebody has committed the offence. It’s not for the accused person to have to satisfy the judge that it did not happen. And once you approach it from the perspective of saying why you accused person of what you haven’t told me why this person could be lying about this, why would they make this up?
Adam Stirling [00:12:30] uh huh.
Michael T. Mulligan [00:12:31] Approaching it in that way is to suggest somehow that the person has an obligation to explain the behaviour of somebody else. Right. And to shift the burden to the accused person from the crown. And in this case, that just came out from the Court of Appeal, you could tell that the crown who did the original trial was alert to the fact that the judge might be getting into some dangerous territory when he was asking the crown and the defence counsel about things like why would she make this up? Right.
Adam Stirling [00:13:05] hmm, yeah.
Michael T. Mulligan [00:13:05] Which gets into that area. Well, that’s not the appropriate reasoning.
Adam Stirling [00:13:10] (Indiscernible)
Michael T. Mulligan [00:13:11] and so the Court of Appeal her overturned the conviction, found that the judge approached it inappropriately and sent the matter back for a new trial. But the case is in addition to pointing out that important principle in terms of how these things are to be decided is also an example of why cases of this kind can be so challenging for all of us who were involved in the criminal justice system. There is a lack of reporting of legitimate cases of sexual assault. That’s clear.
Adam Stirling [00:13:41] Yes.
Michael T. Mulligan [00:13:41] And so there is a desire to encourage people to make reports, but it does not follow that every person who makes a report is making a truthful report. All right. And so, we can’t start from the proposition that they must be the victim and the other person must be guilty. And how can we get there? We need to use such caution. And one of the reasons for that is that unlike many other cases of very serious nature, where you would expect to have other evidence, fingerprints, video recordings, other witnesses that might confirm an allegation, often that is completely absent in sexual assault cases. All you have is the evidence of the accused person and the complainant. That’s often it. It’s rare that like in the case from the Home Depot that we talked about.
Adam Stirling [00:14:31] Yes.
Michael T. Mulligan [00:14:32] There might be a video recording which would undermine what the person was claiming happened. Hey, nobody came up your car with a knife. You were there on your own. That’s not usually the case. Oftentimes it’s simply a person saying, you know, we got home, and I didn’t consent to this. Right. And something happened.
Adam Stirling [00:14:49] Yeah.
Michael T. Mulligan [00:14:49] And that’s why they are so challenging from a criminal law perspective and why we need to be so careful that in our legitimate attempts to help people who are the victims of such things that we not wind-up presuming guilt or shifting the burden of proof and convicting people of terrible offences, that would be completely life altering. And so, it is an example of how even an experienced judge can easily slip into mistaken approach to these things. And thank goodness that we have the system that we do that involves a process for appeal. And so that that kind of a decision can be reviewed, and we can go and try it again and hopefully get it right on the second go round.
Adam Stirling [00:15:36] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking, will continue right after this break on CFAX 1070.
Adam Stirling [00:15:44] All right. Back to Legally Speaking on CFAX 1070 with Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers is Michael helps us understand the latest legal affairs next on the agenda. Michael, an 84-year-old man, has an agreement with his brother to live in a trailer park in exchange for working there. The Brother dies and what happens next gets complicated. Take us through it.
Michael T. Mulligan [00:16:07] It sure does. And maybe it’s another example of why we ought to try to reduce some things to writing. But that is the fact pattern. This 84-year-old man had lived in this site P of a home, manufactured home park in Canal Flats, which is north of Cranbrook, and he lived there for many years. And then his brother sadly passed away in 2019. When that happened, the executors of the brother’s estate hired a management company to manage his affairs and they wound up telling the man that he had to get out of the trailer park, the 84-year-old, unless he began paying $350 a month in rent and the executors wound up taking the matter to court. And at court, the 84-year-old advised the judge in the pleadings, that he had an agreement with his brother, that he was permitted to live in the trailer park indefinitely in order, in exchange for him doing work around the manufactured home park maintenance and so on. And that was his claim. That didn’t work at trial. The judge initially hearing the case gave the executors an order requiring the man to leave. Happily, that wasn’t the end of it for the 84-year-old. He appealed that decision to the BC Court of Appeal. And the Court of Appeal looked at it and they concluded that there was certainly evidence that the arrangement of the man described was the case. One of the deceased brother’s sons had provided evidence that that was the arrangement. He was permitted to live there rent free for the rest of his life in exchange for doing ongoing work on the mobile home park. And the way the Court of Appeal approached it was to look at the provisions of the provincial legislation, the deal with manufactured homes. And we indeed have a Manufactured Home Park Tenancy Act, maybe not referred to a lot, but we have that in BC. And as the Court of Appeal pointed out that at the Manufactured Home Park Tenancy Act allows for tenancy used to be entered too much like a tenancy somebody might enter into if they were renting an apartment, for example, and it provides that tenancies can be created by various ways, including oral agreements expressed or implied. And the act provides that rent is broadly defined in such a way so as not to only mean money but can also include value or a right given or agreed to be given in return for the right of possession. And so that’s the broad concept under that provincial statute. And the executors were claiming, no, no, this isn’t the man’s not claiming a tenancy. He’s claiming what would be referred to as a life interest in property. Like he’s claiming that he has some right of ownership over site Pat the park.
Adam Stirling [00:19:40] Interesting.
Michael T. Mulligan [00:19:40] The Court of Appeal concluded. No, this is really a dispute involving a claim to have that kind of a tenancy. And so, one of the implications of that is that much like if you have a dispute with a landlord tenant dispute over a rented house or apartment, you don’t go off to the B.C. Supreme Court to resolve it. You would go to a residential tenancy process. And so, the Court of Appeal concluded that the trial judge here was an error. This wasn’t really a dispute over a claim of a life tenancy, like an ownership claim for the property, which would be something you would deal with in Supreme Court, because the claim was, look, I was allowed to live here for the rest of my life, but only in exchange for continuing to do work, which would be sort of like the continued payment of rent. Right. The tenant who’s saying I’ve got a tenancy agreement allowing me to live in the apartment isn’t claiming that they own the apartment. They’re claiming that they have a tendency agreement which allows them to live there for a period of time if they in that case pay rent or here do work on the property. And so, on that basis, the Court of Appeal found that the trial judge was an error, that there wasn’t really jurisdiction to deal with it, and that it should have been sorted out as a residential tenancy matter under that manufactured home legislation. And so, the upshot of it, even though it wasn’t in writing, the matter’s been remitted by the Court of Appeal and the 84-year-old, although I must say this started a couple of years ago. So, he’s now going to be a little beyond that.
Adam Stirling [00:21:22] yes.
Michael T. Mulligan [00:21:22] Is going to have his chance to go to a Residential Tenancy Hearing, and it’ll be for an adjudicator there to determine whether there is a tenancy in place. And so hopefully he’ll have the ability to stay there. And we’re not going to have the result of ejecting the now 85, 86-year-old from the property when it seems clear that that was the nature of the agreement he had with his deceased brother.
Adam Stirling [00:21:51] And there we are, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday, we’ve got about 60 seconds left. How shall we spend them?
Michael T. Mulligan [00:22:02] Well, maybe just quietly contemplating why we ought to get everything in writing to avoid this kind of litigation in the future.
Adam Stirling [00:22:10] You know, that’s probably the best advice any of us could take today. So, thank you so much for your time, as always, Michael.
Michael T. Mulligan [00:22:16] Thank you. Always a pleasure, Stay Safe.
Adam Stirling [00:22:18] All right. Have a great day. Bye now.
Automatically Transcribed on May 28, 2021 – MULLIGAN DEFENCE LAWYERS