From Traffic Dilemmas to Inheritance Protection
Understanding the legal intricacies surrounding speeding violations and inheritance rights is crucial for navigating today’s legal landscape. In this episode, we dive deep into two significant cases that illuminate these topics and the complexities that arise. The first segment highlights the confusion over speed limit enforcement, particularly in the context of construction zones. With a recent case centred around a driver who received a speeding ticket for allegedly exceeding a speed limit imposed by temporary signage, we explore the legal assumptions about the validity of road signs. The presumption of regularity under the Motor Vehicle Act suggests that a sign, when erected, is presumed to be valid unless proven otherwise. This leads us to the critical question: What happens when the veracity of such a sign comes into dispute? The judicial review of the specifics surrounding this ticket brought forth the need for substantial evidence when challenging the validity of these signs. It turns out that the court requires more than just the presence of a sign; it seeks to establish whether there was proper authority and legal grounds for positioning such signage. Further, in this instance, signs indicating a speed limit of 70 km/h in a construction zone were the focal point. The police officer testified that the regular speed limit signs were obscured and that the construction signs were not actively enforced, thus posing a challenge to the legitimacy of the driver’s speeding ticket. The judicial justice wisely concluded that the Crown needed to provide evidence beyond a reasonable doubt to uphold the ticket after the accused showed an air of reality questioning the signs’ legitimacy. This insight into the presumption of valid road signs is invaluable for anyone navigating the roads.
We transition to discussions on estate law, specifically focusing on the provisions of wills and how they can impact social benefits. This case involved a mother’s will that equally divided an estate among her children, but one child feared that receiving her share outright would jeopardize her eligibility for governmental benefits, prompting the need for a Henson Trust. A Henson Trust is designed to shelter assets from being counted against someone’s eligibility for benefits, allowing individuals with disabilities to retain social support while possessing substantial inherited wealth. The unique twist in this situation was that the child was seeking to vary her mother’s will to create such a trust, as she was worried that the direct inheritance would threaten her well-being and housing stability. However, the court ruled against this variation, stating that the existing provisions for the distribution of the estate did not fail to provide adequate support, as the law specifies that adequate provision must align with current societal, legal, and moral standards. The discussion raises profound questions regarding the balance between government support and familial obligation and whether policies should allow wealthy individuals to benefit from public services at the same time. Furthermore, while the court acknowledged that a Henson Trust could have been set up, it did not obligate anyone—parents or the Estate—to alter their last wishes simply to benefit one child at the expense of others.
In a related case, we explore the limitations of appeal processes concerning driving prohibitions issued by police officers when they perceive a driver’s impairment. This leads us to examine the intricacies of a 24-hour prohibition where a driver attempted to assert failure of the appeal process on the grounds of being ASD and having ADHD. Generally, when a prohibition is issued, the driver faced significant challenges to appeal, as the mechanisms available are limited and could lead to implications on one’s driving eligibility if not carefully navigated. Moreover, such appeals can be timely and costly, with outcomes hinging on a rather thin argument, as evidenced by this individual’s unsuccessful attempts to pursue their case to higher courts. This compendium of cases presents listeners with an illuminating view of common legal scenarios they may face and underscores the importance of understanding both traffic laws and estate provisions in the context of modern life.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Feb 13 2025
Adam Stirling [00:00:00] It’s time for Legally Speaking, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan with Legally Speaking. Morning Michael, how are we doing?
Michael T. Mulligan [00:00:08] Hey, good morning. I’m doing great. It’s always good to be here.
Adam Stirling [00:00:11] Up first on the agenda I’m reading, it says speeding and who needs to provide what the signs said. What does that mean?
Michael T. Mulligan [00:00:19] Yeah, so there are different speeding offences under the Motor Vehicle Act in BC. There are default speed limits, for example, inside and outside of municipalities, like the default speed limit would be 50, right?
Adam Stirling [00:00:33] Yeah.
Michael T. Mulligan [00:00:33] But you know, some municipalities are having various lower speed limit signs put up all over the place. And so there’s another offence under the Motor Vehicle Act, which is speeding contrary to highway signs. And so one of the issues that arises or arose in a recent case is what is the assumption about a highway sign having been properly put up, right? Because you know, let’s say you just make up your own speed sign and go and stick it up outside your house, but when anyone’s driving more than 15 kilometers an hour, does that become an offence to you get a ticket? What happens?
Adam Stirling [00:01:13] Interesting.
Michael T. Mulligan [00:01:14] And that sounds a little ridiculous. But in fact, there are signs sometimes put up by other entities. Like for example, maybe you’re driving in a school on a school property, maybe you’re driving in a parking shopping mall or something, right? There might be some signs stuck up there. But that wasn’t a sign erected by some municipal government. That might be just some sign that the landlord of this whatever mall parking lot decided to put up, right?
Adam Stirling [00:01:41] Yeah.
Michael T. Mulligan [00:01:41] And so there are some provisions dealing with this. This particular case involved signs for what may or may not have been a construction zone. And the particular fact pattern in this case, it involved a highway where there had been some road work done, but it looked like that may have been essentially completed. It was on a Sunday. The evidence was that from the police officer that the zone was ordinarily 100 kilometer an hour zone that but there had been there were some orange signs put up which had a speed limit of 70 on them, like to do with construction. And the police officer’s evidence was that the 100-kilometre signs had plastic bags put over them. Now, the other interesting element and the other evidence here was that there were no workers present. It was a Sunday, a beautiful day, and the signs which indicated it was a construction zone had been turned sideways to indicate they weren’t actually doing any construction. And the hapless person who was charged, this is another problem, pulled onto the highway where there were no 70 kilometer an hour signs, like between where the signs were.
Adam Stirling [00:02:47] yeah.
Michael T. Mulligan [00:02:48] But leaving that issue aside, and the fellow was going according to the radar check between 99 and 100. So what the speed limit was. So the issue was, well, what is the speed limit there? He got a ticket for driving contrary to these highway signs. And the starting point is this. People may not know about this. There’s a section in the Motor Vehicle Act, section 201, that provides that the fact that there is a sign up is evidence that the sign was duly erected, Okay.
Adam Stirling [00:03:19] huh.
Michael T. Mulligan [00:03:19] So in an ordinary way, let’s say there’s what looks like a speed sign. It says 15 kilometers an hour right outside your house. Well, that is evidence that there was a duly erected sign put up there. But the question that had to be sorted out in this case is, well, what happens when there is some challenge made as to whether that sign is properly there, right? And in this case, the judge pointed out, or a judicial justice pointed out, there are provisions that both require their signs to be put up when there’s construction, saying there’s construction going on. Those ones were turned sideways. And it’s also a requirement to remove temporary signs when there’s no longer any reason to have them up. And so what do you do when in this case, they seem to be clear evidence, yeah, there were signs, usually it’s 100. The work signs return sideways and no one’s working. What do you make of that sort of presumption or the presumption of regularity, they would call it.
Adam Stirling [00:04:13] yeah.
Michael T. Mulligan [00:04:13] Like if there’s a sign there, we start from the presumption that it’s properly put up sign. Well, the judicial justice analyzed it from this perspective and said, okay, well, yes, that is some evidence that was properly put up, but it’s not conclusive evidence. And so they then went through what is the what kind of evidence to the contrary has to be established to establish that it’s not a proper sign it is one that, you know, Adam made up and put in front of his house or one that they might have been put up by the shopping mall or some sign that was left up when it shouldn’t have been. Well, it’s not even, not a requirement to prove it beyond a reasonable doubt and even a balance of probabilities is too much. And so what the judicial justice pointed out, referring to a Supreme Court of Canada case, is that once there is evidence that raises what is referred to as an air of reality to the idea that that sign might not properly be there. Like it looked like it was made in crayon, or it was smaller than all the other signs or whatever, right.
Adam Stirling [00:05:10] Yep yep.
Michael T. Mulligan [00:05:10] Something that we called into question. Is that real? Should that be there? Did they just leave it up by mistake? What’s going on? Once there’s something that gets over that reasonably low threshold of air of reality, then the onus then shifts to the Crown to prove beyond a reasonable doubt that the sign was properly erected. Right. Was there a legislative basis to put that thing up? And here that didn’t exist. And so certainly the judicial justice found that given that the work signs turned sideways, there were no workers on the highway. And there is a requirement to take down signs when there’s no work going on. And that, that didn’t happen here. Now, I should say there’s also this obligation to put up signs when there is new construction, widening of road, repair, marking, or other work is being carried out. So I guess to be some issue about what does it mean by is being carried out? Is that mean right now?
Adam Stirling [00:06:07] yeah.
Michael T. Mulligan [00:06:07] I mean, maybe on Monday we’ll do that. But certainly, given the ambiguity of what was going on, and there were also pictures of what was going on and the police officer agreed, yes, usually 100 and these bags on them and other signs return sideways. Once you get to that just relatively low threshold of air of reality about whether these things are properly there, then the burden’s on the Crown. And if they don’t lead evidence to prove beyond a reasonable doubt, there’s proper legal authority to put these things up, the signs. Then the result is there’s not enough evidence and you’re found not guilty. And that’s what happened here. And so it’s just important to know how that structure works. So somebody finds himself in traffic court, and it’s ambiguous as to whether the sign was real or not or should have been there or not. As soon as there’s an air of reality to that question, Crown’s got to prove it. It’s not enough to just say, yeah, there’s a sign that said 15 kilometers right in front of Adam’s house. That’s not going to do it. And so that’s the latest from the Provincial Court on speeding and signs.
Adam Stirling [00:07:07] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, will continue right after this commercial break.
[00:07:13] COMMERCIAL.
Michael T. Mulligan [00:07:13] All right, we’re back on the air here at CFAX 1070 as we continue with Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. Up next on our agenda, can a will, it says here, be varied to put money in a trust so the beneficiary can keep government benefits, Michael?
Michael T. Mulligan [00:07:29] Indeed, and we’ve spoken before about applications under the Wills, Estates and Succession Act, often referred to the provisions as Wills variation applications. And the provisions of that act allow somebody to make an application if they’re the spouse or child of somebody who made a will, arguing that they did not make, “adequate provision for the proper maintenance and support of either a spouse or children” under the will. Now, it’s quite interesting that the section requires a judge to determine whether the will, in terms of support left, was in light of current societal, legal, and moral norms, whether the amount of support left was adequate. So there’s really pretty broad authority if somebody, you know, tries to cut a child or spouse out of a will or whatever. Now, this particular case is interesting because it was actually the reverse argument. It was somebody effectively arguing, I can’t get all this money. I’ll lose my benefits. And so it was an application by a 63-year-old adult child who and the substantial estate, the mother who passed away, had an estate which pretty uncontroversially left small bequeaths to her two grandchildren and then equally divided the estate amongst the three children. And each of those beneficiaries would wind up with something north of one point eight million dollars. So not an insubstantial amount of money. And so why would somebody not want to get 1.8 million dollars? Well, this particular person was the beneficiary of various social benefits, including subsidized social housing. And to that end, she had a place that she sounds like very much liked over in Vancouver and a subsidized facility. And describe where she was living as a corner unit. And it was a quiet location and a quiet part of Vancouver. And she really liked it. It didn’t want to have to leave there. And as an added benefit, because she was qualified as somebody who had a person with disabilities, it meant that she effectively got this nice corner, quiet corner unit for I think it was $485 a month. Basically, the person with disabilities’ payment was paid in that amount. And so she got to live in this nice, quiet corner unit that she didn’t want to lose that. And so her argument was that the mother’s will ought to be varied so that she doesn’t get 1.8million dollars. But instead, it should go into what’s referred to as a Henson trust. What’s a Henson trust, you might ask? Well, a Henson trust is a trust, so it’s like money that’s being held to the benefit of someone else, where the person who is the trustee, the person responsible for paying out the money has complete discretion about whether to pay out money and if so, how much. And the that model has been something which has been found as a result of previous court decisions and indeed as a result of a policy of the B .C. Ministry of Social Development and Poverty Reduction, the Ministry, who in a guidebook point out that where there is that kind of a trust set up for the benefit of somebody who might have a disability. And it’s unclear what the person’s disability here, but something that prevents her from working so she gets those government benefits, that where that sort of trust is set up, the money doesn’t count in terms of whether they are eligible for the government disability assistance. And so that’s something which is recognized by the B.C. Ministry of Social Development and Poverty Reduction. And so the argument made here was that the mother had made inadequate provision for her daughter in her will by failing to set up one of those trusts so that she wouldn’t get the 1.8 million dollars directly and by having the money in a trust, which would be controlled by someone else, then that doesn’t count towards her assets or income. And indeed, the B.C. Ministry takes that position that if that’s how you’re getting money, it doesn’t count. So you might be a millionaire in terms of the trust set up, but you don’t have the money directly. And so you can keep getting government assistance. And so that’s the application that was made. The judge found, yes, that kind of trust is possible. Indeed, the mother could have set up that kind of trust. And indeed, the B.C. Ministry fully recognizes that as an acceptable planning option and so people can continue to get benefits, including subsidized housing, if they have money in that form of trust, because they don’t count that as their asset. However, the judge concluded that, while, that is something that the mother could have done, that it doesn’t get over the starting point threshold for a wills variation application, which is to say it’s necessary that the judge be satisfied that the person had not made, “adequate provision” for the proper maintenance and support of the person who’s receiving money under the will. And this was a lot of money. And there was no argument that it was being unfairly divided up. In fact, the two siblings didn’t even take no objection to any of this. They didn’t even bother showing up at the hearing about all of this because the sister wasn’t asking for more money, effectively, she was asking for less or at least that she get the same amount. But given to her in a different way so that she could maintain her government benefits. The judge found that the equal division of the money between the three siblings did not amount to a failure to adequately support, adequately provide support for the 63-year-old adult child taking into account social, legal, and moral norms. And even though there is a different structure which could have been set up that might have allowed a person to keep getting government benefits, it wasn’t a requirement to do that. And that doesn’t provide a basis to modify the will so that that result can take place. And so the judge didn’t refuse to do what was being requested there. Now, I must say, of course, if somebody really, really likes their nice, quiet, corner-subsidized housing unit and doesn’t want to have to, you know, lose that, there is nothing that requires you to keep the money. Right. I mean, if you really don’t want the 1.8 million dollars, you’re quite free to give that away to a charity or do something else with it. But this maneuver won’t be permitted. And I must say, it may be that there should be some consideration given to, you know, how these things are dealt with by the ministry when we have a shortage of housing. You know, do you want somebody who’s a beneficiary of a very large trust to be able to accept a government subsidized housing unit? Is that desirable? Because that is policy? And, you know, sometimes I think these things would be set up if somebody has like a disabled child, if they’re concerned about paying for things for them. But it does raise that just really interesting question of what obligation does the government have versus the family’s obligation? And is it appropriate that you have a policy in place that allows somebody who could easily afford to pay for very nice housing and so on continue to quite properly receive government subsidized housing by this sort of structure? Is that something we want?
Adam Stirling [00:15:14] hmm.
Michael T. Mulligan [00:15:14] You know, no doubt this woman, she gave evidence that she really liked the house or the apartment. It was very quiet, and she felt very supported there. You know, all of that. And she gave some evidence that other types of housing can be a long wait list for that’s no doubt true. Right. Yeah, there’s a shortage of housing generally. That’s true. But, you know, is this what we want? Is that an approach, is that good public policy? I guess. Right.
Adam Stirling [00:15:40] yeah.
Michael T. Mulligan [00:15:40] Now, in this particular case, we’ll have to wait and see. But, you know, maybe there should be some reflection given to whether that is the appropriate policy for the BC Ministry of Social Development and Poverty Reduction. Do you necessarily want to be subsidizing somebody who is, well, I appreciate it’s held in a trust, a millionaire?
Adam Stirling [00:16:01] Yeah.
Michael T. Mulligan [00:16:02] But that’s our policy. And that’s why we have this case.
Adam Stirling [00:16:06] All right. Up next, it says an unsuccessful effort to further appeal the issuance of a 24-hour prohibition from driving. I note the further before that appeal.
Michael T. Mulligan [00:16:17] Indeed. So this is a case out of Oak Bay. From a few years ago. And it’s a case involving a police officer that got a report from a bus driver that there was a vehicle that appeared to be swerving on the road. And so not surprisingly, the Oak Bay police officer pulled the car over, instructed the driver to move his vehicle forward, but then the vehicle drove off. There’s been a slow speed chase, and the vehicle stopped again. The officer got the person out of the car and did a made a demand they provide a breath sample into a roadside screening device. The person struggled to do it, but eventually it also had belts of giggling for no apparent reason. Provided a sample and sample indicated no alcohol. Then the officer did some sobriety tests because of what he thought was unusual behaviour, even though there’s no alcohol. And concluded the person didn’t do well on at least two of the sobriety tests that he performed. And so issue the person with a 24-hour driving prohibition. And I should stop there for a moment just to mention how that works. That is to say that we have provisions in the Motor Vehicle Act that allow a police officer to prohibit somebody from driving for a period of 24 hours and tow their car away, if they’ve got reasonable grounds to believe that the person’s ability to drive is impaired by alcohol or another drug. Now, there are a couple of interesting things about those provisions. And I should say, first of all, they’re intended to be sort of quick and dirty roadside police response. You know what I mean, okay, I’m not sure quite what’s going on here. You’re giggling and weaving, you know, stop driving, which seems on the face of it sort of reasonable. But one of the challenges here is that the appeal mechanisms for these is not, are not great, because sometimes they may be given to somebody who shouldn’t have been given one of those things. Now, in this particular case, the fellow who has given one asserted that he had ADHD, and he was on the autism spectrum. And that’s why he was giggling in response to the breath request. But I should point out that those provisions for a 24-hour driving prohibition come in two flavours. One is a circumstance where the officer believes somebody’s impaired by alcohol.
Adam Stirling [00:18:32] yeah.
Michael T. Mulligan [00:18:32] ‘And one where the officer believes somebody’s impaired by some other drug. Now, the alcohol one ‘s a bit easier because often most police are going to be equipped with these roadside screening devices where you have somebody blow into it.
Adam Stirling [00:18:45] yep.
Michael T. Mulligan [00:18:45] To indicate whether there’s some screening of alcohol. And indeed, the way this legislation works is the police officer could issue one of these even for alcohol, even when they don’t have or use one of those things, which is interesting. And it’s also interesting that the legislation provides that if a police officer does that, like says, you know, I think you’ve been drinking and hands you a 24-hour driving prohibition. You, in fact, have the right to demand that you provide a breath sample into a device. And if the police officer does that and the device comes back and shows you have a blood alcohol level of less than 50 milligrams per 100 milliliters of blood, the driving prohibition is terminated. What are the oddities, though, is that they don’t have to tell you about that, right? So most people might not be aware of it. And I guess you’d also have to consider very carefully. Is that a good idea? Because if it comes back very high, you might find that you’re facing more than a 24-hour driving prohibition. Also, they when the officer is concluded that they think you might be impaired by something not alcohol, as in this case, there is also a right to if the police officer doesn’t perform roadside tests to demand that they do some roadside testing of you. And if they don’t do that or if the officer thinks you’ve passed the roadside test, that can also end the thing. But once again, you have to be very careful about what you want to be demanding. And I’m not sure too many people are demanding that because you don’t have to be told about it. But in any case, that’s how the sections worked, that’s how the sections were. You have no other right of appeal if you were in fact driving and the officer either used a screening device or did the testing, which is often which is usually the case. Okay, so in this particular case, the fellow the officer did do the alcohol test. It came back with zero, he did do the other tests for, you know, roadside sobriety and concluded that he thought the person was impaired because of the weaving, the odd behaviour, the giggling and so that was that. Now, one of the other challenges is that, well, the 24-hour prohibition might on the face of it say, well, so what the person is not driving for 24 hours, why is that a big deal? What happens to people, though, is like, for example, if somebody is like a new driver, the result of a 24-hour driving prohibition will often be a longer driving prohibition. The superintendent of motor vehicles looks at it and says, uh oh, you look like a danger and then prohibit the person from driving for a few months.
Adam Stirling [00:21:08] yes.
Michael T. Mulligan [00:21:08] So that’s why there can be issues about it here. The only mechanism to appeal it beyond those things that I’ve told you about those issues, whether they were done, is by way of a judicial review, like going to a Supreme Court judge. This fellow tried that and lost. So he tried appealing it to the B.C. Court of Appeal. That’s the latest part of it. His problem was he didn’t do anything for months. You just let the thing drag on and on and then applied for an extension of time to appeal it later. And ultimately, the court of appeal judge who was looking at it just said, no, there’s just no it’s not in the interest of justice to allow you even more time to appeal this yet again, given that you just didn’t move this thing along in an expeditious fashion. And moreover, there doesn’t appear to be very much merit to your argument. It’s there’s maybe you have some argument, but it’s pretty thin on that fact pattern. And so that’s the latest in the court of appeal. This fellow was told no, but I thought to the extension of time, but I thought it was worth mentioning just so people understand what that 24-hour prohibition is, the fact they were very limited appeal mechanisms. And there is this right to demand testing, although it may not always be the best idea. And it’s not something the police have to tell you about. So that’s the latest from the court of appeal on 24-hour driving prohibitions.
Adam Stirling [00:22:22] Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour be Thursday, Legally Speaking. Thanks so much.
Michael T. Mulligan [00:22:28] Thanks so much. Always great to be here.
Adam Stirling [00:22:29] All right. Bye now.
Automatically Transcribed on February 19, 2024 – MULLIGAN DEFENCE LAWYERS