This week on Legally Speaking with Michael Mulligan:
The USA and Canada have a treaty that provides for mutual legal assistance in the investigation of criminal matters.
Pursuant to this treaty, the Minister of Justice of Canada, at the request of the USA, applied for and obtained a search warrant for two Vancouver companies being investigated for sending fraudulent mass-mailed solicitations that were believed to be financially exploiting vulnerable people.
Applications for search warrants occur without the defendant being present or having an opportunity to respond. Accordingly, after a search warrant is executed, the party being searched can request a review to determine if the warrant should have been issued. This kind of review is referred to as a Garafoli Review. Garafoli is the name of a case setting out how these reviews should take place.
A judge conducting a Garafoli Review is not substituting their view for that of the judge who authorized the search. Instead, taking into account further evidence, the existence of fraud, non-disclosure, or misleading information in the search warrant application, the reviewing judge needs to determine if a judge could properly have authorized the search in the first place.
In the case discussed, the reviewing judge concluded that the search warrant was properly authorized.
Also on the show, a BC Provincial Court judge has concluded that the court did not lose jurisdiction over thousands of accused people when their cases were mass adjourned at the start of the COVID-19 pandemic.
The BC Provincial Court is a statutory court: it derives all of its authority from legislation that authorizes the court to do various things. This is distinct from the BC Supreme Court, which is a court of inherent jurisdiction. It has authority that is not derived from legislation.
In the ordinary course of a criminal case, there needs to be some authority to compel an accused person to attend court. Absent this, the accused person could simply not show up.
The initial obligation to attend court could take a number of forms including a summons, undertaking, or warrant. Once an accused person attends court, a judge could adjourn their case to a different date.
The mass adjournments due to COVID-19 involved the Chief Judge of the Provincial Court issuing a Notice to the Profession (NP 19), directing that all out of custody criminal cases, for a prescribed time period, had been adjourned.
Once the court had plexiglass installed, and various protocols put in place to deal with matters remotely where possible, cases recommenced.
The judge reviewing what occurred concluded that jurisdiction was not lost when the cases were adjourned. He concluded that the Criminal Code provisions that permit the court to make procedural rules permitted the adjournments. In addition, he concluded that there was jurisdiction to adjourn the cases in this way because it was a part of the court’s authority to control its own process.
Finally, on the show, an apartment building in Prince Rupert was acquitted of a bylaw offence for having an overflowing and unsightly garbage bin.
The bylaw in question specified that “No owner or occupier of real property shall allow that property to become or remain unsightly.”
Because the unsightly garbage bin was in a back alley, there was no evidence that it was on the property owned or occupied by the apartment building.
An automated transcript of the show:
Legally Speaking April 15, 2021
Adam Stirling [00:00:00] It is time for Legally Speaking, on CFAX 1070, joining us, as always, is Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael Mulligan.
Michael T. Mulligan [00:00:09] Good morning. Great to be here.
Adam Stirling [00:00:10] Lots on the agenda today. I’m reading here search warrants for companies allegedly involved in mass-mailing of solicitations to the United States that could be fraudulent. There’s a lot to digest there. So, help us understand what this is all about.
Michael T. Mulligan [00:00:26] Yes, indeed, so that generally is frowned upon in addition to being potentially illegal.
Adam Stirling [00:00:32] Yes.
Michael T. Mulligan [00:00:33] And so this was an investigation that has been going on in the United States that involves two companies based out of Vancouver that are alleged to have been involved with the mass mailing of fraudulent material to exploit, what are described as vulnerable groups: seniors and others of large amounts of money in the U.S.. So, not surprisingly, the U.S. authorities were investigating these two Canadian companies. The companies allegedly were doing things, including one of them had a special database software that would, I guess, interface with the list of allegedly vulnerable people they were trying to exploit. And so, the U.S. authorities wanted to have a search done to gather information about what, in fact, was going on to these two Vancouver companies. So how does that work if you’re a U.S. investigator and you’re trying to get a search warrant in Canada? Well, you can’t go to a U.S. court and ask for it. They don’t have any authority in Canada. And so, the way that works is that Canada and the United States have an agreement. It’s often referred to as a mutual legal assistance agreement, it’s going got a much longer name if you spell it all out. But it’s a mutual legal assistance agreement with respect to investigating criminal matters.
Adam Stirling [00:01:56] Mm hmm.
Michael T. Mulligan [00:01:56] And so if one country or the other is wanting to, for example, obtain a search warrant to search business or premises in the other country, they would make a request of the country. So, in this case, the U.S. authorities asked Canada, pursuant to the treaty, would you please get a search warrant to allow a search to be conducted of these two companies allegedly sending out these fraudulent mass mailings? And so, the Ministry of Justice Canada made the application on behalf of the United States, got the search warrant, and then a search was conducted of these two Vancouver companies. But that’s not the end of the matter because the companies that were searched, the alleged fraudulent mass mailing companies, sought a review of the search warrant. And that kind of review is often referred to as a Garofoli review. And the way that works is this. When a search warrant is being applied for, it’s necessarily being applied for what’s called ex parte. The other person being searched, for example, isn’t there to oppose it or ask any questions about it.
Adam Stirling [00:03:09] Mm hmm.
Michael T. Mulligan [00:03:10] And so when a police agency is applying for a search warrant, there’s an obligation that they provide full and frank disclosure about what it is they want to search for, why they believe there’s evidence in that place. And then the judge would review the application and determine whether the search warrant should be issued. But after the fact, but after the search was carried out, the person or company that was searched could challenge the search warrant and have one of these kind of hearings, which just occurred. In that kind of hearing that would review that decision to issue the search warrant is referred to as a Garofoli Review. Now, on that kind of a review, the judge doing the review doesn’t ask themselves what I have issued a search warrant. It’s kind of like the difference that would be provided when there is an administrative decision and there’s a judicial review of it.
Adam Stirling [00:04:02] Okay.
Michael T. Mulligan [00:04:04] Similarly, the judge doing the Garofoli review of whether that search warrant should be issued needs to approach it from the perspective of could the initial judge have granted the search warrant on the basis of the information that was before them, along with what can be referred to as amplification or further evidence about what was in the search warrant application. And so, on that Garofoli Review, the judge might, for example, permit the cross-examination of the person who issued the warrant or other evidence to come before them. And they could look for things like did the party applying for it, did they fail to disclose important things, or did they put misleading evidence in the application? Whereas there’s some new evidence which would go to whether the original judge could have issued the search warrant at all. But the whole review is conducted from that perspective of, could the original judge have properly issued the search warrant? Not what either reviewing judge have decided to issue a search warrant.
Adam Stirling [00:05:11] Hmm.
Michael T. Mulligan [00:05:11] And so that’s what was conducted in the review, the Garofoli Review, which was just completed, looking at whether the government of Canada should have been granted the search warrants to search these businesses in Vancouver to help out the U.S.. Investigation. And so, the judge here heard additional evidence about what was going on and permitted examination of the information that was originally provided, but ultimately concluded on that basis, that I’ve indicated that the original judge who did issue the warrant issued it properly. And it’s important that there be that prior judicial authorization for a warrant.
Adam Stirling [00:05:53] Yes.
Michael T. Mulligan [00:05:54] Our system doesn’t involve, you know, go, and kick the door down and then ask permission later. It doesn’t need to be, you know, approval in advance. But there is then provision for this kind of a review after the fact. And that’s important as well, because, of course, when the warrant was applied for the person getting through, which didn’t have any opportunity to stick their hand up or call other evidence or challenge or ask questions about it. And so here these two companies were permitted to do that. And there was a thorough review. And the judge conducting the review concluded that indeed the judge who initially granted the warrant did have a basis for doing so. And so, the result of the challenging the warrant was unsuccessful and so the U.S. investigators will have the benefit of the evidence from these two Vancouver companies in their ongoing multi-year investigation into whether they were engaged in fraudulent activity with these mass mailings trying to defraud money from vulnerable people. There it is.
Adam Stirling [00:07:00] All right. All right. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. We’ve got two more stories left in our agenda for this week. Would it be preferable for us to take the break now before we jump into the second or do the second and then jump into a break a little late?
Michael T. Mulligan [00:07:15] Sure. I think probably a good time for the break. The next one’s got a few elements, so it’ll probably require a few minutes to talk about.
Adam Stirling [00:07:21] Indeed. And it’s one in which I take a keen interest given other stories that have caught my attention over the last year. So, I look forward to benefiting from your analysis. Michael Mulligan will continue with, Legally Speaking right after this.
Adam Stirling [00:07:32] Legally speaking, on CFAX 1070 Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers continuing. Michael, the second story, the provincial court upholding a decision to mass adjourn criminal cases due to covid-19. What’s the story?
Michael T. Mulligan [00:07:48] Yes, indeed. So back in on March 17th of last year, that was the day when British Columbia issued the public health emergency that started all of what we’ve been dealing with now for more than the last year. I guess it didn’t start it, it was the response to it. But on that very same day, the British Columbia declared a public health emergency the British Columbia provincial court, in the form of the chief judge, issued a directive which adjourned all out of custody criminal matters, en masse, that were scheduled between March 18th and May 16th. They just put them all off. And then that was further extended for a period of between May 19th and July the 3rd. And, you know, we’ll all recall back what was going on at that time. Nobody was quite sure what was going on with the virus. People didn’t know whether you were had to wipe down your grocery bags or whether you were getting this from, you know, touching the doorknob or what it was. And so, there was extreme concern about what was going on. And at that time, of course, the courts hadn’t been modified to try to increase safety. We’ve such since then done things like plexiglass has been put up and they’ve moved desks apart and that kind of thing, and they’ve adopted all manner of policies to put as much as can be done online. Like appeals are heard by Zoom and sentencings are done by MS Teams to try to reduce the risk to everyone involved. But the issue that the court was just dealing with here is an issue of whether that mass adjournment resulted in, what’s referred to as a loss of jurisdiction over the various people involved.
Adam Stirling [00:09:40] hmm.
Michael T. Mulligan [00:09:41] And the concept there is this the provincial court of British Columbia is a statutory court. It means those are created by statute. It doesn’t have inherent jurisdiction, like, for example, the British Columbia Supreme Court would have.
Adam Stirling [00:09:56] Hmm.
Michael T. Mulligan [00:09:57] And when you have a court of inherent jurisdiction like the B.C. Supreme Court, some of the powers of the court aren’t things which have been sort of delegated by the legislature or by the parliament. It has constitutional authority to deal with some matters. And we saw that, for example, with the recently where the provincial government was trying to transfer authority to deal with some car accident matters to that civil resolution tribunal.
Adam Stirling [00:10:27] Yes.
Michael T. Mulligan [00:10:27] And chief justice of the BC supreme Court concluded, no, you can’t do that. You don’t have authority to do that. That’s within the jurisdiction of the court and it’s not up to you. Thanks so much. Now, that is a different circumstance from what would happen with a court that is statutorily created. So, for example, with the British Columbia Provincial Court, its authority derives from statute. So, you’d have to look at things like go to the criminal code and look up and see, OK, well, you know, what can a provincial court judge do? Right. Look it up. You have to find some authority for anything the court wishes to do.
Adam Stirling [00:11:07] Yes.
Michael T. Mulligan [00:11:08] And one of the elements there would be the issue of jurisdiction over the individual accused in a criminal case. There has to be some authority to require somebody to show up in front of the court to be dealt with according to law. The police can’t just go in, you know, drag somebody in off the street and say, here you are, Judge, do something with this person, right?
Adam Stirling [00:11:34] Yes, Yeah, absolutely.
Michael T. Mulligan [00:11:34] There is a process in place, you have to have some authority to arrest the person and you could release them, for example, in an undertaking that might require the person to attend court, where there could be a warrant issued for somebody arrest something to compel the person to come there. And then there’s a process which is set in the criminal code that would allow a case to be adjourned from time to time. So, for example, if somebody was arrested on a warrant and they were given a date to attend court for the first occasion, they show up. The matter is not likely to be a trial the very first day they show up, things might have to happen. The person might need to hire, a lawyer.
Adam Stirling [00:12:16] Yes.
Michael T. Mulligan [00:12:17] They might need to get some information about what they’re charged with, for example. And so, the case for that person could be, and ordinarily would be adjourned. A judge might say, OK, that’s fine, come back in two weeks once you’ve hired your lawyer and have a look at the material and then you can tell us if you wish to plead guilty or not guilty. See you in two weeks. Right.
Adam Stirling [00:12:37] mhmm.
Michael T. Mulligan [00:12:37] And then the idea is that you would have by that process, following the procedure set out in the criminal code, you would maintain jurisdiction over the individual. There would be an obligation for that person to come back two weeks down the road. You don’t, in a criminal case, have a process whereby a judge would say, well, okay, here you are pursuant to a warrant. Come back whenever you’re ready. Great.
Adam Stirling [00:13:02] Yeah, I can see how that might be abused.
Michael T. Mulligan [00:13:04] That might not occur, right?
Adam Stirling [00:13:06] Yes.
Michael T. Mulligan [00:13:07] The scheme involves having a definite time when you’ve been told you must come back on this date. And if you don’t do that, if in some odd world a judge just said, well, you know, well, we’ll see when we see you, then the court would have lost jurisdiction over the person.
Adam Stirling [00:13:24] I see, I didn’t know that. That’s interesting.
Michael T. Mulligan [00:13:27] And if you wanted to compel the person to come, you’d have to do something like issue a warrant for their arrest, for example, or get a summons and mail it to them, telling them to come, whatever it might be. And, you know, that might occur from time to time. Odd things happen. You know, mistakes are made. You know, the things adjourned over to a Saturday, nobody’s there. Right. And when that happens, they would ordinarily need to be some new document or process pursuant to the criminal code, for example, to compel the person to come back. Right. Sometimes it might happen voluntarily. A person might just say, well, I’m not worried about that. Here I am. You need not issue a warrant, but you’re going to get the person there somehow. So that brings us back to what happened on March the 17th and then again on April 28. And on those occasions, the chief judge of the BC provincial court just en masse said these thousands of cases are all adjourned, and they posted the information on the court’s website. Okay, well, what’s just the decision that just came out dealt with, well, did that result in a loss of jurisdiction over those people? They weren’t there. You didn’t tell them come back in six months. You just posted something on the website saying. All the cases for these days are now over to this date. Well, what’s that? Have you lost jurisdiction? And so that’s what a different judge on that court was struggling with here is did that lose jurisdiction over the individual and result in the accused where you’re saying that this resulted in a circumstance where the cases should be dismissed for want of prosecution? And you might hear that phrase in the context of this might occur. Let’s say your case is set for trial. You dutifully show up for your trial. Here I am. And the crown just doesn’t show up. No one’s there, right? You’re there. Your lawyers there, the judges there no one came. Well, in that case, your case could be dismissed for want of prosecution. Nobody should prosecute you, right?
Adam Stirling [00:15:33] Yes.
Michael T. Mulligan [00:15:33] There’s no evidence, on you go. But here, the judge reviewing what happened, looked at some authority in the criminal code. And you’ve got to find authority for it because it’s a statutory court and all of their authority has to come from some statute. They don’t have just inherent jurisdiction to do things. But there is a provision in the criminal code that allows the provincial court, the chief judge, to make rules with respect to how court is to operate. You know, what time should court start in the morning or, you know, what should forms look like if you want to make an application? There are rules to try to, you know, said the administration of the court. And the criminal code permits rules to be made that are not inconsistent with the criminal code with respect to the administration of the court, basically. And so what the judge reviewing the circumstance of these, how many were there for people that were challenging what happened, concluded that this decision to massager in all the cases as a result of the declaration of the emergency and covid amounted to, the creation of a rule, that put all of these cases over without needing the individuals to attend in person and said that, well, the direction which was referred to as iNP-19 team could simply have been called the NP-19 Covid-19 rule and therefore it would have been permitted. And so, on that basis and on the basis that the courts like the provincial court. It would have authority to control their own process, which is something that has been found to be implied by some of the authority settled in the criminal code, that, for example, let’s say, you know, the judge has authority to conduct the trial. So, you’ve going to find some authority for it. Yes. Yes. Okay, a provincial court judge me to conduct a trial of a particular sort. Implicit in that, for example, would be that the judge conducting the trial would have, by necessary implication, the capacity to sort of control the process in the courtroom. You know, somebody just stands up in the back and begins screaming and blowing an air horn. You don’t need to find a section in the criminal code that says the provincial court judge may stop somebody from blowing an air horn.
Adam Stirling [00:17:59] yes.
Michael T. Mulligan [00:18:00] Or tell them to stop screaming or get out of the courtroom.
Adam Stirling [00:18:02] Yeah.
Adam Stirling [00:18:02] It’s by implication the fact you’ve been told you can get a trial. How can you possibly conduct the trial if somebody can just with impunity, show up and yell over everyone? Right.
Adam Stirling [00:18:11] That’s a problem I’ve been dealing with lately, so I know it all too well.
Michael T. Mulligan [00:18:14] That’s right. You need some authority under the criminal code for it. And so, I think by necessary implication, the authority to control that. And so, the judge found for those two reasons that there was jurisdiction to do what was done here. That the court did not lose jurisdiction and it wasn’t necessary to, for example, issue new warrants for the arrest of the thousands of people who had their cases adjourned in that way, because that’s what otherwise would have been required.
Adam Stirling [00:18:42] Hmm.
Michael T. Mulligan [00:18:43] If you wanted to regain jurisdiction over the individual to require them to show up. And so, whether there will be any appeal of this or not is an open question. But at least the decision of the associate chief justice of the B.C. provincial court found that for those two reasons, the decision to adjourn those thousands of cases en masse didn’t result in the loss of jurisdiction over all of those individuals. Now, I should say there are some practical issues there,.
Adam Stirling [00:19:15] hmm.
Michael T. Mulligan [00:19:16] Because for some people it might be completely reasonable to say, well, just look it up on the website. What do you think happened?
Adam Stirling [00:19:23] yes.
Michael T. Mulligan [00:19:24] Talk to your lawyer, figure it out. that’s fine. But it’s the category of people for whom that may not be the practical reality would be what do you do with the mentally ill person who’s addicted to drugs, who, you know, showed up on March 23, took the door to the courthouse. Nobody was there to let them in. And they just kind of left. Right?
Adam Stirling [00:19:45] Yes.
Michael T. Mulligan [00:19:46] There could be some people for whom there might legitimately be some hardship created by that. And there will have to be, and there is, I think, discretion exercised about, you know, what do you do to compel that person to show up to deal with their, now, year old shoplifting case. Do you issue a warrant for them? Do you try to give them a summons? What do you do, bearing in mind that there may be some people who legitimately just had no idea what on earth happened here.
Adam Stirling [00:20:12] Yeah.
Michael T. Mulligan [00:20:13] You know they managed to sort of shuffle to the door to find it locked and, you know, what can you expect of that person to try to, you know, look up NP19 on the provincial court website to figure out when it is that they should have showed up to get the thing back on track.
Adam Stirling [00:20:27] We’ve got just over two minutes left and I see her an acquittal in the case of an unsightly Prince Rupert garbage bin.
Michael T. Mulligan [00:20:34] Yeah, this one, I think requires about two minutes. I must say, when I see cases like this, they always make me smile because for many people, these are the only kind of involvement they’re ever going to have with the criminal justice system. This was a case involving an unsightly garbage bin up in Prince Rupert.
Adam Stirling [00:20:53] Yes.
Michael T. Mulligan [00:20:53] And the judge concluded that the pictures, indeed, it was quite unsightly. The garbage overflowing all over the place. But the particular bylaw specified this. No owner or occupier of real property shall allow that property to become or remain unsightly. And so, in this case, there was much evidence that the garbage bin associated to this apartment was indeed, the judge said, and unsightly mess, overfilling, overfull and spilling on to the ground. The challenge was that there was no evidence that the garbage bin was in fact located on the property of the apartment building. It was in a back alley behind the apartment building, which may well have been property owned by the city of Prince Rupert itself.
Adam Stirling [00:21:38] Oh
Michael T. Mulligan [00:21:40] The city of Prince Rupert to ensure that that being the owner of the property, that the garbage bin wasn’t unsightly. So, the particular bylaw doesn’t make it an offence to own an unsightly garbage bin. It only requires you not to allow the property that you are occupying to remain unsightly. And so, the judge pointed out, you know, perhaps the city should have cleaned it up or charge the person under some other bylaw. I do not know. That is what I’m here to decide. But there was no evidence of the particular apartment building in question was allowing its property to become unsightly. It may just have been heaving its garbage into the alley in this overflowing bin, which doesn’t, in fact, constitute a bylaw infraction.
Adam Stirling [00:22:25] And here we go. And court time was expended to determine that.
Michael T. Mulligan [00:22:29] That’s correct, in the middle of covid, we conducted the trial. But I got to say that about this. This case is an example, like many other things, like traffic court decisions, for many people, they are the only time they’re going to have anything to do with the criminal justice system or the legal system at all. And so, in my view, it is very important that when somebody is sort of an ordinary person winds up in this kind of a case, that we deal with it in a fashion which is careful and, you know, legally rational and well analyzed and independent, because that’s going to have an impact on this person’s perception of the criminal justice system and the legal system. And in many cases, that’s the only experience somebody is going to have. And people often those are going to be your witnesses and jurors and so on potentially very important case is down the road. So, in my view, it’s a really good and happy thing that we do take seriously people alleged to have had overflowing garbage bins or run through the red light and ensure that they have a fair trial. And certainly, looks like that’s what happened for the Angus apartment building in Prince Rupert
Adam Stirling [00:23:37] Michael Mulligan, a pleasure as always, until next week.
Michael T. Mulligan [00:23:40] Thank you so much. Stay safe.
Adam Stirling [00:23:42] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking, on CFAX 1070.
Automatically Transcribed on April 15, 2021 – MULLIGAN DEFENCE LAWYERS