This week on Legally Speaking with Michael Mulligan:
A University of Victoria instructor pleaded guilty to criminal contempt for blocking a road by chaining himself to a log.
Other people who had been convicted in similar circumstances have been sentenced to a period of probation with 100 hours of community work service.
Following the man’s arrest, his bag, containing $1605 of his camping gear, was “repeatedly run over by a road grader.”
Judges can consider the “collateral consequences” of a charge when determining an appropriate sentence.
As a result, the man’s sentence was ordered to complete only 70 hours of community service: an effective reduction of $53.50 / hour for the run-over camping gear.
Also, on the show, statutory exemptions from paying municipal property tax are discussed.
In British Columbia, municipalities determine their budget and set mill rates for different kinds of property. The mill rates are multiplied by every $1,000 in property value, as determined by BC Assessment.
Because of how this system works, the amount of tax payable by each property owner depends on the relative value of properties and how many properties there are to distribute the tax burden.
Section 220 of the Community Charter includes a list of kinds of properties that enjoy a statutory exemption from paying any property taxes. They include hospitals, schools, graveyards, and property owned by the provincial government. It wouldn’t be sensible if municipalities could impose very high property taxes on the legislature building, for example.
Section 220 (h), however, exempts property owned or leased by religious organizations from paying any municipal tax. The result of this statutory exception is that all other property owners in a municipality are required to pay more in property tax to subsidize religious organizations that are paying nothing.
In addition to the unfairness of requiring all other property owners to subsidize religious organizations, the exemption may be inconsistent with section 2 (a) of the Charter, which provides for “freedom of conscience and religion”. This section has been interpreted to include freedom from being required to engage in religious activity.
In a case called R. v. Big M Drug Mart Ltd., the Supreme Court of Canada held that the Lords Day Act, which required businesses to be shut on Sunday, contravened section 2 (a) of the Charter. This compelled business owners who were not religious or who worshiped on days other than Sunday to close or pay a fine.
There would be a compelling argument that requiring property owners to pay higher property taxes to subsidize religious organizations is unconstitutional.
Finally, on the show, a new BC Court of Appeal decision expanded the scope of how judges should interpret section 718.2(e) of the Criminal Code. This section provides that when sentencing someone, a judge should consider all available sanctions other than imprisonment “with particular attention to the circumstances of Aboriginal offenders.”
The court reduced a sentence from 5 years to 4 years in jail for a Métis man convicted of aggravated assault for an unprovoked stabbing.
The accused in the case had a horrific childhood, primarily because of his non-indigenous stepfather.
The Court of Appeal concluded that the man had a “significantly reduced level of moral blameworthiness” and had no difficulty inferring that “Canada’s colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court.”
An automated transcript of the show:
Legally Speaking Jan 5, 2022
Adam Stirling [00:00:00] It is time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are we doing?
Michael T. Mulligan [00:00:07] Good morning. I’m doing great.
Adam Stirling [00:00:08] Always good to be here. Some very interesting items on the agenda today, including something that all feels hauntingly familiar. Another Flying Squad member sentencing matter. Help set this up for us.
Michael T. Mulligan [00:00:21] Yes, indeed. So, there have been a lot of these prosecutions. These are the Rainforest Flying Squad members or associated people who are being prosecuted for criminal contempt for blocking logging, essentially. And we’ve talked about some of these cases before, and there’s been a whole sort of line of law developed around these things. In this particular case, was just decided in December, and there are a few interesting things about it, I thought worthy of mention. First of all, the lawyer on it is former councillor Issett, which is good to see, he is off doing good work.
Adam Stirling [00:01:03] Oh yes,
Michael T. Mulligan [00:01:04] A lawyer now it would seem. And it was a sentencing of a person who pled guilty, acknowledged that he had engaged in criminal contempt and the activity was described this way. He said his arm was chained inside a hole in a log and approximately 20 large nails were hammered into the wood around the hole to make it more difficult to cut through. And the person in the log were positioned on the road where there was a rock face on one side and a steep drop on the other, effectively blocking traffic, contrary to an order from Justice Verhoeven that they not be doing that. And so this individual acknowledged that he had done that. Probably not a great big whodunit. And so as I mentioned, the law sort of developed in terms of what kind of sentence might be appropriate for that kind of behaviour. And here the individual had, who was described by the judge as a man of good character. He had no previous criminal record, but he acknowledged what he had, what he had done. He was described a little it caused me a little bit of worry. He was described as a law professor, which caused me a bit of concern about some law professors are, in fact lawyers, some aren’t.
Adam Stirling [00:02:27] hmm.
Michael T. Mulligan [00:02:28] So. And if somebody is a lawyer, that’s kind of incompat.. it is not, kind of, it is incompatible with engaging in criminal contempt. That’s just not going to that’s not a compatible kind of activity.
Adam Stirling [00:02:39] hmm.
Michael T. Mulligan [00:02:39] But looking at this person’s background, it does not appear that he’s a lawyer. And some law professors are not lawyers. He’s doing a Ph.D. in law and philosophy, something like that.
Adam Stirling [00:02:49] So just so our audience understands, when you’re a lawyer, you’re an officer of the court, you have duties that, of course, you must abide by that even if you had full legal training, you might not otherwise have to observe if you were just a member of the public.
Michael T. Mulligan [00:03:02] Absolutely, right. Sort of lawyers aren’t, would be, it would be incompatible with your professional obligations to be off committing criminal contempt of court. Right. You’re sort of officer of the court. You’re a member it was society. Part of the role there is to ensure that the rule of law prevails. Right.
Adam Stirling [00:03:21] hmm.
Michael T. Mulligan [00:03:21] Which is completely inconsistent with engaging in criminal contempt to try and get what you want in a fashion, you know, to be unlawful. So that would be a particular concern, but it doesn’t arise here. I suppose that there would be room to be sort of in terms of moral culpability.
Adam Stirling [00:03:40] Mm hmm.
Michael T. Mulligan [00:03:41] Suppose there would be an argument to be made that somebody who has legal training, even if they’re not a lawyer, might have a higher degree of moral culpability when they engage in intentionally unlawful conduct.
Adam Stirling [00:03:54] hmm.
Michael T. Mulligan [00:03:54] You know, as opposed let’s see, there was a young, you know, senior as a 19-year-old who was just kind of persuaded to come along and engage in a protest. And hadn’t, didn’t really have a thorough understanding of all of the principals involved in how engaging in the unlawful activity, contrary to a court order, might undermine things like the rule of law that we all depend on to live in an orderly society. So there would be an argument about that, but there would be a particular concern of somebody who was a practicing lawyer who was breaching intentionally a court order. That’s just not going to fly. The Law Society, I’m sure, would have a heart attack if that was what was going on. And so that issue didn’t arise there because of this person’s background.
Adam Stirling [00:04:40] hmm.
Michael T. Mulligan [00:04:40] But the narrow issue was this term. There had been there’s been so many of these cases now, it was agreed that a suitable sentence for somebody in the position of this man who had no record of good character pled guilty. The tariff for that appears to be a period of probation. Along with 100 hours of community work service. That appears to be the tariff. And so it was agreed that that would ordinarily be the appropriate sentence for this man. But the interesting fact pattern here was that the man had $1,605, must have kept his receipts, of camping gear in his possession at the time that he was arrested. And he said that he had left the camping gear in a ditch anticipating his arrest. But somehow and it’s unexplained, the camping gear wound up on the road. And so after he was arrested, I guess they cleared the log and a camping gear was repeatedly run over by a road grader, described by the judge.
Adam Stirling [00:05:45] Sorry, I just had something in my throat there. My apologies.
Michael T. Mulligan [00:05:47] And I guess once they hold the log away, there must have been some effort to smooth the road out to the logging and could continue with it and it repeatedly. Ran over the camping gear.
Adam Stirling [00:05:57] Oh, dear.
Michael T. Mulligan [00:05:57] And so there is a Supreme Court of Canada case Suetter, from a few years ago that says that judges are permitted to take into account collateral consequences that might flow from somebody being charged, for example. Now, not all collateral consequences are going to have an impact in terms of what sentence might be appropriate. And there isn’t some rigid formula for it. And the court has also said that some consequences just flow so naturally from the fact of being charged, they’re not going to have much of a mitigating factor. Like if somebody said, well, it was really traumatic to have had to have put on me and be put in a police car. You say, well, that just kind of flows with being arrested for something. That’s not going to always be a mitigating factor. But the judge did say, look, when somebody is being arrested, you don’t have an expectation that your property is going to be run over by a road grader. And so the judge concluded that, that is the kind of collateral consequence they could have an impact on what sentence might be appropriate. And so the judge decided that rather than the hundred hours of community work service that might otherwise be appropriate in the fact pattern, that that should be reduced to 70 hours of community work service, along with a period of probation to take into account the loss of the $1,605 in camping gear. I haven’t done the math on the value per hour of the camping gear loss, but it’s a notable case because it was an example of how that kind of collateral consequence can have an impact on what the appropriate sentence would be. So there we have it looks like former counsellor Issett’s doing good legal work and the judge accepted the submission about the impact of the camping gear. And the net result is we will have to do a few less community work service hours. Also of interest, the judge noted that if you look forward to reading some of the research work that this professor had been working on, so it sounds like somebody who is otherwise of good character who made the decision that he should go and commit criminal contempt in order to try to, I guess, get what he wanted in terms of the outcome here. So those that’s the lates from Rainforest Flying Squad, I must say, when I talk about the Rainforest Flying squad, I’ve got young kids. There’s a trampoline place in town with a similar name.
Adam Stirling [00:08:22] The Flying Squirrel. Yeah.
Michael T. Mulligan [00:08:24] No Connection, nothing to do with Rainforest Flying Squad. They’re completely separate. There are no trampolines involved in this particular case.
Adam Stirling [00:08:32] Oh, yeah. I wouldn’t want to give anybody any ideas, though, but this is a really fascinating case. So essentially it was $1,605 of camping gear somehow got repeatedly run over by a road grader. 30 hours of community service effectively reduced. If we accept the 100 hours as our starting point, it’s $53.53 each hour. So, it’s not bad.
Michael T. Mulligan [00:08:52] It’s not bad. It’s not bad for the camping. And I must say, I was impressed with the $1,605. Somebody kept careful receipts.
Adam Stirling [00:09:02] Well, who knows, maybe it was crowdfunded, I’m not sure. But if that were the case, that would actually explain quite a bit. So, you know, it’s very fascinating to look at this, you know, the sort of inexhaustible resourcefulness on every single part of every single issue is something that feels hauntingly familiar. I can’t quite place it, though. What’s next on our agenda?
Michael T. Mulligan [00:09:21] Next on the agenda is a key user issue that deals with a current thing, which is going on, which is the sending of the property assessments. Right. So, anyone who owns properties likely received one this week or if they haven’t, they’ll be getting one soon. And the impact of those property assessments is really used in determining how much your municipal taxes are going to be. And the way that works is that municipalities are able to set what are called mill rates, which are an amount a number of dollars per, I think it’s usually expressed in thousands of dollars of property value. And that would determine how much property taxes. And so what would happen is a municipality would figure out, okay, this is going to be our budget for the year. And then we would translate that into these mill rates to determine how much taxes everyone would have to pay to come up to the level of whatever revenue it is they’ve decided they need for their budget. And when they do that, they’re able to set actually different mill rates for different types of property, which is an interesting thing in and of itself. Like, for example, they can set one mill rate for residential property and a completely different rate for business property, for example, of the same value. And so in Victoria, for example, the business rate is something like triple the rate of what the same value of property owned for residential purposes would be. And it’s not hard to imagine why that is, because businesses don’t vote. Right. And so it’s much more politically palatable to say, well, have a high mill rate for business property and a rate that’s like a third of that for residential property, because again, some people vote and businesses don’t get to vote. So that’s the explanation for that. The other interesting thing about that system is that there are a number of types of property which are exempt from paying property tax at all. And there are some where municipality can decide whether to grant an exemption. But there are other categories of property, and this is all from the community Charter and Section 220 of it, which are referred to as statutory exemption types of property where a municipality cannot levy any property tax. And the effect of that, of course, is that if they can’t tax property X, the taxes for all the other properties have to be higher to achieve whatever amount of money it is they determine that they need. And the list of exemptions some of them make, I think, pretty good sense. For example, there’s an exemption for property owned by the provincial government, so the city Victoria, couldn’t raise all of its revenue by taxing the legislature at some enormous rate or something.
Adam Stirling [00:12:03] Yes.
Michael T. Mulligan [00:12:03] Other statutory exemptions include things like land used as a like a green graveyard rate that makes it pretty hard to extract money from the residents. And then there’s various other exemptions. One of the exemptions, a couple of exemptions here that have been controversial. One is that there an exemption for private school’s land, that’s been, that was an issue in Oak Bay a few years ago. But there’s another exemption here, which I think our listeners should think carefully about whether it’s an appropriate one to still have in 2023. And that’s a mandatory exemption under section 220(h). And what that does is it exempts from any municipal taxation essentially things like churches and synagogues and any other buildings and associated land used for worship. And it includes land owned by religious organizations or leased by religious organizations or on their behalf by somebody like a trustee. And the effect of that is that any of these properties held by these by religious organizations are not paying tax, municipal tax and it means that everyone else’s tax rate is higher. And the reason people should think carefully about whether that’s appropriate and there may be a legal issue about that. Is in Canada we enjoy freedom of religion and that has been interpreted to include both the freedom to practice religion, but it’s also a freedom not to be subject to religious requirements. Right. And here effectively what’s happening is it’s requiring everyone who’s not a member of a church or religious organization to subsidize them because they don’t pay municipal taxes. And then there’s an early Supreme Court of Canada case which dealt with that issue of freedom of religion called Big M Drug Mart Ltd, one of the early classic cases involving freedom of religion and what that means from a constitutional perspective. And that case involved an assessment of what’s called the Lord’s Day Act, which required businesses to all be closed on Sunday.
Adam Stirling [00:14:24] Hmm.
Michael T. Mulligan [00:14:25] And so that was challenged to say, well, hold on. You know, that’s not appropriate. So, the Big M Drug Mart was getting fined for opening on Sunday. And the area was, hey, this is just sort of a state effort to sort of support religions that might have services on Sunday, which is, of course, a subset of them.
Adam Stirling [00:14:46] Interesting.
Michael T. Mulligan [00:14:48] And the Supreme Court of Canada found that that was unconstitutional, impermissible and was struck down. And that’s why businesses can be open on Sunday without getting fined.
Adam Stirling [00:14:58] hmmm.
Michael T. Mulligan [00:14:58] And so with that background, I urge listeners to think carefully about whether it’s appropriate that we have a mandatory statutory exemption for property owned by religious organizations, when the effect of that is that you’re going to pay higher taxes in order to subsidize them. And just like somebody who might say, look, I don’t want to have to take the day off on Sunday, I wish to open my store. Right. The person who says, look, you know, I don’t really want to provide a subsidy to religious organization X, Y or any of them, but because of how that’s set up and because of section 220 of of that act, that’s what’s happening. And so you should think about that when you get your property taxes, assignment and later your tax bill. One of the reasons why your tax bill is higher than what it would otherwise be is that we’ve granted these exemptions from paying tax, including that one, which to my mind when you look at it, stands out as something quite distinct from something like provincially owned property or a hospital or a graveyard. And effectively what you are being required to do, whether you like it or not, if you own property in the municipality, you subsidize the religious organizations that are operating there. And so I think there’s a very live legal issue about whether that is constitutionally permissible. So that’s it under the Community Charter and the mill rates and property taxes.
Adam Stirling [00:16:26] All right, let’s take a quick break. Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers continues right after this.
Adam Stirling [00:16:33] Back on the air at CFAX 1070, Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, one more story on our agenda for this week. The B.C. Court of Appeal reducing a sentence. Help us understand this.
Michael T. Mulligan [00:16:46] Yes, indeed. This case is an interesting one and it may have some impact on sentencing generally in the province for Indigenous people. And the case involves essentially the Court of Appeal interpreting a provision of the Criminal Code 718.2 (e), which says that a judge in sentencing should look for all available sanctions other than imprisonment that are reasonable and consistent with harm done and so forth. And then says this with particular attention to the circumstances of Aboriginal offenders, and that is in the Criminal Code in response to the massive overrepresentation of Indigenous people in prison. The percentage of people in prison we’ve talked about previously who are Indigenous is completely out of proportion to the percentage of the public who are Indigenous. Now the Supreme Court of Canada a few years ago gave some meaning to that section of just referred to, and there’s a case called Gladue.
Adam Stirling [00:17:45] yes.
Michael T. Mulligan [00:17:45] That talks about that and has led to this concept of Gladue reports being routinely ordered, which provides judges with information about somebody’s Indigenous background, and those the impact that might have had on the person and how it wound up, how they wound up committing an offence. Now it becomes challenging when a judge is sentencing somebody for a very serious offence. Right, how those principles are to be applied. And this case involved a man who was convicted of aggravated assault, and it was a very serious stabbing. He stabbed a victim twice in an unprovoked fashion, puncturing his lung, lacerating his liver, and he would have died but for surgery. And the man in question had a really unenviable background, including 33 prior convictions, six robbery offences, 4 offences of threatening, weapons offences, numerous breaches, a terrible background. And the he was Metis, his mum was Metis and there was a Gladue report prepared. The background, and it became clear that this man had a terrible, terrible childhood. There’s just no way around that. Involving things like his brother being stabbed to death, his stepfather involved in all kinds of criminal activity, drugs, all kinds of things, just terrible circumstances. And when you look at the circumstances, it’s probably not surprising that he wound up completely dysfunctional, where there no other way to describe it. Right.
Adam Stirling [00:19:23] mm hmm.
Michael T. Mulligan [00:19:23] And the case with the Crown’s submission at trial was, look, on sentencing that this man didn’t even realize he was Metis, until relatively recently. And the stepfather, which was the source of this terrible childhood that this man endured, is not Indigenous. And the Crown’s submission was, well, look, there should be really little consideration given to the fact that this man is Metis, given that his terrible upbringing was a function of his non-Indigenous stepfather, there are, and he had very little connection to his Metis background at all. He didn’t even realize he was Metis, until recently, and the trial judge seemed to accept, most of that, and sentenced the man to a period of five years in prison. The case then went to the Court of Appeal and the argument was. No, that’s just too narrow an interpretation of what that section means and what I Gladue stands for and the Court of Appeal decision, which was a unanimous decision of three justices. It was actually written by a justice who was himself Indigenous and so may have some insight, personal insight, into these matters. The judge could the justices in the Court of Appeal concluded that the approach taken by the trial judge was an overly narrow one and looked at, for example, the outcomes and circumstances of Indigenous women and how those have been influenced by the Canada, of course, it speaks about it is Canada’s colonial history of assimilation and how that played a role ultimately in this man winding up in the courthouse and found that even though the dysfunctional household, which involved childhood abuse, anger, verbal abuse, emotional abuse, criminal activity, terrible, terrible circumstances.
Adam Stirling [00:21:24] Yes.
Michael T. Mulligan [00:21:25] Even though those were caused by this stepfather who was not indigenous, the court found that a broader interpretation is required. And the reason one of the reasons why this man’s mother wound up in that circumstance, would have been as a result of that background, as a function of the circumstances that many Indigenous women find themselves in. Very unfortunately.
Adam Stirling [00:21:54] Yes.
Michael T. Mulligan [00:21:55] And so found that because of that, even though the background was caused by the stepfather, they found that this man had, the courts language which was significantly reduced level of moral blame worthiness. When you look at it in a broader way is how is it that this man wound up in this horrific abuse of childhood and then came out of it clearly as a broken person who’s committing crimes and stabbing people and doing all kinds of other things. And found that because of that reduced level of moral blame worthiness which could be connected to his mother’s background, that it was appropriate to reduce the sentence from five years to four years. And so that the outcome in the Court of Appeal and that outcome with respect to him is that narrow five years to four years. But, more broadly speaking, this is going to be some direction to trial judges in terms of how are you to assess things when you have somebody coming before you who is Indigenous. But it’s hard to connect that directly with, well, how did that lead to this behaviour in the Court of Appeal that said, no, there should be a broader approach taken to that. And so that was the outcome here and it’s likely to have an outcome in cases in the future in B.C. And as I said, the hard cases are ones like this where you’re trying to do everything you can do not have one more Indigenous person in prison, but a judge is faced with sentencing somebody for a very serious offence. And those are the tough cases. And that’s the latest from the Court of Appeal.
Adam Stirling [00:23:28] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday on Ceefax. Thanks so much.
Michael T. Mulligan [00:23:35] Always a pleasure. Have a great day. All right.
Adam Stirling [00:23:37] You too. Take care.
Automatically Transcribed on January 13,2023 – MULLIGAN DEFENCE LAWYERS