Federal Offender Security Clarification overrides, a Death Midwife, and NCRMD findings
Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070
Issues discussed include overrides of federal prisoner security classifications which result in inmates classified as medium security, being transferred to minimum security institutions. This was an issue recently as a result of two inmates escaping from the William Head Institution, which is a minimum-security facility, despite having been classified as medium security risks. One of the inmates had been convicted of escaping jail on five previous occasions.
A 2001 report from Correctional Service Canada, that examined the reasons given for overriding inmate risk classifications is discussed. The report found that that was a 13.6% increase in escape rate when risk classifications were overridden and that in 30% of cases the reasons given for an override were inappropriate.
Also discussed was a British Columbia Supreme Court decision involving the College of Midwives of British Columbia, and a woman who described herself as a Death Midwife. The woman’s website described death midwifery as a form of pastoral care. The College argued that the Health Professions Act prohibited the woman from using the term “midwife”. The judge in the case found that the act did prohibit the use of the term, however, it unconstitutionally interfered with the woman’s freedom of expression because it was overly broad and did not minimally impair the woman’s freedom of expression.
Finally, the requirements for someone to be found not criminally responsible, as a result of a mental disorder, are discussed, along with the consequences of such a finding. In order to be not criminally responsible a judge would need to be persuaded that someone committed an act or omission while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act of omission or of knowing it was wrong.
Where someone is found to be not criminally responsible, they would be subject to detention, in a medical facility, until a review board concluded they did not pose a significant risk to public safety. In some cases, this could be for a much longer period of time then they would have served in jail.
Automatically Transcribed on October 3, 2019 – MULLIGAN DEFENCE LAWYERS
Adam Stirling [00:00:00] Half an hour later than we would normally have this segment, but still of great interest to our audience. So, we’re doing Legally Speaking here on CFAX 1070 with Michael Mulligan for Mulligan Defense Lawyers as we begin the third hour on this Wednesday. Thank you so much for shifting your schedule slightly for us Michael Mulligan so we can accommodate our debate analysis. Good morning. How are you doing?
Michael T. Mulligan [00:00:19] I’m doing well. Always a pleasure to be here.
Adam Stirling [00:00:21] Interesting stories on the docket this week; including a question of how one may wind up at a minimum-security institution if one has been classified as being more suited to medium security.
Michael T. Mulligan [00:00:34] Indeed. And this is in the context of that of course escape from William Head with those two people that went missing. This week, one of the two showed up in court and pled guilty to escaping. Probably not much of a trial issue. You appear to not be where you’re supposed to be. Here you are. And so, the Crown asked for interestingly, the maximum sentence, I think in the given how they had proceeded they were seeking a 24-month sentence and that was in the context of this fellow having a record of five previous escapes. Which caused the judge, not surprisingly, to ask a few questions about, well how is it that with five previous escapes he was at a minimum-security prison? It came out in the course of that that he was indeed classified to be in a medium security rather than a minimum security prison, which then prompted the judge to say well please find out a little bit more about what happened here, who failed who and why was he there. Now that prompted me to have a look at how it is that he might have wound up at a medium… a minimum-security prison. William Head if that’s not where what he was classified to be in and lo and behold there was a study produced for Corrections Services Canada looking at exactly that issue. This study was conducted in 2001 and it was a study it’s entitled ‘Federal Offender Population Movement: A Study of Minimum-Security Placements’ and it looked at the issue of how might that happen. And there are some insights there. First of all, one of the things that the study points out is one of the things we’ve talked about here before, is that the Corrections Services will do classification for somebody to figure out what their security risk is. They’ll look at things like a person’s previous criminal record, what they’re serving time for, a whole host of factors, and that will dictate where they are to be initially classified and then that classification could change, depending on things like programs they’ve completed, reports on how they’ve done while they’ve been in for a number of years, this sort of thing. But there are a significant number of individuals who are where that classification decision is overridden and there’s authority to override it and to move somebody either to a higher or lower security institution than their risk assessment would seem to dictate. And there are these study points out a variety of reasons why that might occur. And they looked at a period of time but an 18 month period of time between April 1st 1989 and September 30th 2000, and they took a selection of people who were put in institutions other than the ones of a security classification that would seem to be dictated given their background and there are a number of reasons why that might occurs some of which seem perfectly legitimate. There are things like issues about interactions with other inmates. For example, let’s say you had one prisoner who was threatening to kill another prisoner. You might say well look we can’t keep these two people here we have to move one of them to another institution. So that might be a reason or there would be reasons like program availabilities, there might be a more suitable program in one place or another. So, there would be a variety of reasons, but the study pointed out there was a significant percentage of these overrides that didn’t seem to be well justified and they were a number of things were given as reasons because they have to be reasons for it. And some of them amounted to sort of disagreements with the classification of security. And that’s a concern. One of the things that the study also points out, and they looked at the rate of escapes, and they looked at the rate of escapes for individuals who were put in the type of institution that they were classified for and people who were overridden and moved, for example, into a minimum security when they were classified as medium. And in the study, it concluded that there was a 13.6% increase in the escape rate when somebody’s classification was overridden to put them into a minimum-security prison.
Adam Stirling [00:04:50] Interesting.
Michael T. Mulligan [00:04:50] Probably not a great surprise, but the result there is that more people are escaping when you override the security classification that was arrive at by looking at their background. Now that brings us around to the individuals here, oh and I should say this, one thing I should say that’s a positive thing.
Adam Stirling [00:05:11] Yes.
Michael T. Mulligan [00:05:12] At least in that study period, they looked at the rate of the completion rate, like the percentage of prisoners who successfully completed the program and were then released back into the community. The Pacific Region at the time had the highest success rate and that success rate was 95%. So generally, it works, but there are a fair number of people for whom it doesn’t work. And there’s a significant increase for people who are put in institutions that they weren’t classified to be in. Now that brings us around to the issue of the individual who had five previous escapes, was classified as medium security, what on earth is going on? Why would that person be reclassified to go to William Head?
Adam Stirling [00:05:52] Indeed. Why?
Michael T. Mulligan [00:05:52] Well, it looks like there were a couple of possible factors: one, was that he was apparently accepted to go into a treatment program that was available here; so, there was some benefit to it. And then the other factor is that he was in a 14 year sentence and he was getting close to what’s called his statutory release date and a statutory release date is the date upon which you will presumptively be released, unless there is a conclusion that you’re going to pose an undue risk if you’re let out. So, he was close to that statutory release date. So, I suppose one analysis would be look, why are you going to escape when, if you just do nothing, you are going to be released in a very short period of time. So logic might dictate, that to somebody who’s going to be released soon would have very little incentive to leave when the result of that is going to be, well you may have your statutory release date extended, you may wind up in a higher security prison, why in the world would you do that. But I suppose not every decision in life is made of a function of logic and not everyone who’s in prison is necessarily sitting down and doing a careful risk benefit analysis of all of their behaviour. After all, if they were, they probably wouldn’t be in prison to begin with.
Adam Stirling [00:07:06] Why would I commit a crime Your Honor knowing that if I got caught, I would go to jail. This case doesn’t hold water at all.
Michael T. Mulligan [00:07:12] That’s right.
Adam Stirling [00:07:13] I would not…
Michael T. Mulligan [00:07:13] This makes no rational sense.
Adam Stirling [00:07:16] All right.
Michael T. Mulligan [00:07:17] So that may explain it, but I and so the case was put over because the judge wanted some explanation for what’s going on.
Adam Stirling [00:07:23] Good.
Michael T. Mulligan [00:07:23] Hopefully he has a look at, or this is provided, this study, and I think there are some legitimate questions to be asked about; okay, you commissioned this study in 2001 it pointed out this these issues. Well what’s happened since then? So, I think there would be legitimate questions to be asked of corrections in terms of what do they do with this study? Has there been a decrease in those overrides and has there been a change in the rationale for them, knowing that when you do that you have a significantly higher probability of the person escaping? Not a good thing. So, there we are.
Adam Stirling [00:07:57] When is the person in question appearing in court again.
Michael T. Mulligan [00:08:00] I think was put over about two weeks.
Adam Stirling [00:08:02] Okay
Michael T. Mulligan [00:08:02] Now interestingly, a judge doesn’t actually have authority to require corrections to come an account for themselves.
Adam Stirling [00:08:08] Okay.
Michael T. Mulligan [00:08:08] A judge can ask for that and the Crown might, you would expect them to go and make that inquiry of Corrections. The judge wants to know how this person wound up there what happened? But there is no authority to force Corrections Canada to come and explain themselves. The sentencing process isn’t a generalized inquiry, but you would hope that there would be at least some explanation provided and those decisions are documented, and reasons are given for them. Those are what we’re looked at in the study of 2001. Corrections is very very good at producing copious written records reports and so forth. So, there will be a report, which would indicate, why, this person classified as medium security was put in the minimum-security institution. That’s going to be in writing. The reasons are going to be articulated there. So that exists. So, the question is going to be, is that provided to the judge so that he can make some determination as to what the background of this thing is in the context of somebody with five previous escapes.
Adam Stirling [00:09:15] Let’s take a quick break. Legally speaking on CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers continues in just a moment.
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Announcer [00:13:05] Keeping you informed Adam Sterling on CFAX 1070.
Adam Stirling [00:13:09] Legally Speaking with Michael Mulligan from Mulligan Defense Lawyer, story two: individual by the name of Pashta MaryMoon. I hope I’m pronouncing that right. A self-described death midwife and I hope I’m pronouncing that right. We’ll be able to keep calling herself that Michael what the heck’s going on here.
Michael T. Mulligan [00:13:26] This is great. It’s a I must say if one is describing oneself as a death midwife no better last name might you have than MaryMoon. So, this case involves Ms MaryMoon, who is describing herself online and on Twitter, as a death midwife. And she described herself as: somebody who provides death care services and had done so for more than 40 years. She had a degree in world religions, and she focused on in that study, a modern approach to death and the taboos around it. So apparently, she’d worked with people during a period of time when they are dying. Well calling yourself a death midwife got the attention of the College of Midwives in British Columbia.
Adam Stirling [00:14:06] As one might imagine.
Michael T. Mulligan [00:14:08] They didn’t care for this. The College of Midwives brought on this application, under the Health Professions Act that deals with the reservation of use of titles. And there’s this act the Health Professions Act sets out a variety of things which are reserved titles. They include things like dentist or pharmacist. One can’t just hang up a shingle claiming I’m a dentist when you are not indeed a dentist and midwife is one of the things which is a reserved title. I should note as well so is lawyer…
Adam Stirling [00:14:44] As it should be…
Michael T. Mulligan [00:14:46] …under a different act.
Adam Stirling [00:14:46] As it should be.
Michael T. Mulligan [00:14:46] And the idea there, of course, is with all these things trying to protect the public. You don’t want just anyone putting up a sign saying I am a dentist and then just flying at it with their garden tools or whatever they think might be a successful approach to fixing your teeth. So, this application comes on and Ms MaryMoon raises a constitutional argument and she says hey hold on; first of all, I’m not pretending to do anything to do with the delivering of babies. And so, your effort under this legislation to stop me from calling myself a death midwife is interfering with my constitutionally protected freedom of expression. The Attorney General sends counsel to show up and defend the act saying oh no no no this is fine. So, Ms MaryMoon first of all argues I’m not violating the act. The judge doesn’t have much trouble in dismissing that saying no you’re calling yourself you’re using the term midwife putting death before it doesn’t get you out of it. You can’t just call yourself a death dentist or a death lawyer or something.
Adam Stirling [00:15:43] …
Michael T. Mulligan [00:15:44] And therefore avoid all regulatory restrictions so … death lawyer doesn’t make you a non-lawyer.
Adam Stirling [00:15:50] All right.
Michael T. Mulligan [00:15:51] So the judge said no no, the act is clear you’re violating it and then went on to perform a very careful analysis of the freedom of expression argument and found that the Supreme Court of Canada has broadly interpreted the concept of freedom of expression, and then the it found that this, using this terminology was a form of expression, and then did an analysis under a well-known legal test at least for those of us in the in that world, called the Oakes test. Yes. And the Oakes test deals with how you are to engage in a section 1 analysis where you found that somebody who’s constitutional rights been infringed and constitutional rights aren’t absolute, in Canada, they are subject to the s section 1 sort of limitation on them. Right. And when a judge is determining whether there is a reasonable limit on somebody’s constitutional rights, in this case too expression, the test to be applied comes from that case, Oakes, and hence the Oakes test, and a judge is required to look at things like; first of all, is there a pressing and substantial importance to the to the law. Yeah. You don’t want people calling himself a dentist or a midwife who aren’t those things. Sure, no problem there. Then you need to look at is there a rational or logical means of achieving that objective is what they’re doing. The restriction. Yes, that’s fine. Now the next part of the test was the was there a minimal impairment of the right.
Adam Stirling [00:17:19] And that’s that’s I think very important for the concept of minimal impairment and the balancing of the rights of the individual that are enshrined in the charter. Talk more about that.
Michael T. Mulligan [00:17:29] Right and here here’s where Ms MaryMoon succeeded. The idea there is that even if you’ve got an important reason why you’re going to breach somebody charter protected right to expression and even if what you’re doing is logical or rational, like saying hey you just can’t hang up a sign saying I am a dentist when you’re not a dentist, that’s rational to say you can’t do that. The legislation is to be found to be a minimal impairment of the constitutionally protected right, and the judge found that this was not. That this person, Ms MaryMoon using the term, death midwife, the fact that that was prohibited by this legislation, didn’t meet that requirement of a minimal impairment of her right to freedom of expression. And as a result, even though on the face of it, calling yourself a death midwife is calling herself a midwife, on the facts of this case and how this person was using this terminology and she did say in fairness she did say on her website I am not a part of the College of Midwives. Made it clear that she was not trying to deliver babies. That that was constitutionally protected. The legislation was overly broad. Not a minimal impairment, therefore a breach. Section 1 didn’t apply. And so, you are now free to hire Ms MaryMoon who is a death midwife and she’s free to carry on calling herself that. Well how that applies to other protected language is going to be an interesting thing, to see, because you could well imagine various other permutations. I doubt there can be a lot of death pharmacists out there, but you could well imagine somebody using some of those terms and the concern is of course, we don’t want to cause harm to the public. You don’t want to have somebody thinking, oh well that person seems like, I don’t know some kind of a pharmacist, they’re calling himself an herbal pharmacist or a natural pharmacist or a, you know pain free dentist like person. You don’t want to have confusion cause that’s going to cause harm to people. So, there it is the death midwife is free to carry on.
Adam Stirling [00:19:37] Now here’s what I’m curious about and this may well be settled in perhaps future legal proceedings this is the term death midwife unique enough for her to claim intellectual property rights to it and in that case could any other person also use the term without necessarily infringing on her rights to any intellectual property unique works that she might have. I don’t know.
Michael T. Mulligan [00:19:56] That’s a good question. We own Ms MaryMoon did get costs on this application, she was successful so perhaps some of those will be invested in future litigation concerning, her exclusive use of the term. Although, I must say there be a little bit of irony given her argument about freedom of expression. Her immediate move is to restrict other people from expressing themselves at exactly the same way. But you know, there we are it is not unheard of.
Adam Stirling [00:20:21] Well trust me as a person who makes expressions for a living, I, very jealously, guard my freedom to do so, as well as the right that any person who creates any work has over the control of their intellectual works. But I digress. We’ve got two minutes left. Do we want to do another one?
Michael T. Mulligan [00:20:38] Sure. I think I think probably some of those happen to us. There have been a few cases in the news recently about findings of people being not criminally responsible as a result of a mental disorder. There was recently a Salt Spring case for a person who killed their mother. And there have been other reports, including a photo release of a person, in Alberta after having served a number of years, not served but been for a number of years, in a hospital having been classified in that way. So, I thought it would be worth just saying a few things about what it means and when somebody might be found to be not criminally responsible. The language in the criminal code is this: and first of all there’s a presumption that you are criminally responsible and the circumstances in which you can found to be not be are that; if you are somebody who is suffering from a mental disorder that renders a person incapable of appreciating the nature and quality of the acts remissions or knowing that it was wrong. It’s a fairly high threshold. Now if somebody is found to be in that state right, they couldn’t appreciate knowing right from wrong or the quality of their actions. It doesn’t mean that you get a free pass. What it means is that you would be, then subject indefinitely, to the decisions of the review board. Who would determine whether you remain in jail or are going to be released or released on some conditions or conditionally?
Adam Stirling [00:21:56] Yes.
Michael T. Mulligan [00:21:57] And the effect of that can be in some circumstances, a person being in involuntarily in a hospital for many years, much longer and they might have served for the original act had they not been, but on the other case, in the other case if somebody is successfully treated, they may well wind up being released more quickly than they would otherwise have been, if they were sentenced that they were not… Criminally responsible. And the concept essentially is when we’re looking at all the reports of these things, but it doesn’t make any rational sense to be punishing and trying to deter people who acted in some way as a result of a mental illness. That’s just not an effective tactic, nor are you going to deter other people from becoming mentally ill and doing things well in that state.
Adam Stirling [00:22:41] Indeed
Michael T. Mulligan [00:22:42] And so the watch word is always, where there is a determination that that’s what happened, to ensure that somebody is treated and to ensure that the public is safe, rather than the other considerations that deal with punishment and deterrence which would apply in ordinary circumstances.
Adam Stirling [00:22:58] Indeed, Michael Mulligan from Mulligan Defense Lawyers, Legally Speaking every Thursday here on CFAX 1070. Thanks, so much we’ll do this. Eleven o’clock next week we have another debate. We’ll see you then.
Michael T. Mulligan [00:23:06] Thank you.