This week on Legally Speaking with Michael Mulligan:
The obstruction of roads and highways has become an increasingly common method of protesting various things.
As discussed on the show, blocking or obstructing a highway, and in so doing, preventing anyone from doing anything they have a right to do, is a criminal offence pursuant to section 423 (1) (g) of the Criminal Code. The office is punishable by a maximum of five years in jail.
Section 2 of the Charter permits “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” This does not, however, permit someone to express themselves in any way they wish. This section provides no authority to block a highway or spray-paint your thoughts on someone’s property.
The police have broad discretion with respect to how they enforce the law and can exercise discretion to delay arrests for a criminal offence if they choose. There is nothing but discretion on the part of the police, however, that would preclude the immediate arrest of anyone blocking or obstructing a highway.
“highway” is a defined term in the Criminal Code and means “a road to which the public has the right of access, and includes bridges over which or tunnels through which a road passes.”
Also on the show, Ministerial Order 454 is discussed. This order was made pursuant to the Emergency Program Act and limits the amount of gas that can be purchased to 30 litres because of shortages caused by the storm that damaged roads and pipelines in British Columbia.
The order also restricts the profit margin of fuel wholesalers and retailers to the gross profit margin achieved for the 90 days prior to the date of the order.
The restrictions were made necessary, in large part, because of the shutdown of the Trans Mountain pipeline for repairs.
The combination of orders to prevent price rises, and restrict purchases, may be difficult to enforce if the shortage of fuel persists. It relies largely on voluntary compliance and signs posted on gas pumps.
Recent economics research shows that short-term fuel demand is more variable based on price than previous believed. For each 1% increase in gas prices, demand decreases by approximately 0.37%.
An alternative approach to a short-term fuel shortage would be a short-term, emergency, tax to reduce demand. If the tax was significant, and the it was made clear how long it would last, people would be incentivized to only purchase what they required prior to the tax ending.
Finally, a BC Court of Appeal sentence appeal for a man convicted of selling marijuana, in a compassion club, prior to the laws changing which now allow for the sale and possession of marijuana is discussed.
The sentence appeal took some time to be heard because conviction appeals are decided before sentence appeals where both a conviction and sentence are being appealed.
The man was originally sentenced to one day in jail, and a fine. His sentence appeal was allowed because the trial judge who imposed the sentence didn’t explain why a conditional discharge was not imposed.
A conditional discharge is associated with a period of probation and, if successfully completed, someone is deemed not to have been convicted of an offence.
Automated transcript of the episode:
Legally Speaking Nov 25, 2021
Adam Stirling [00:00:00] It’s time for, Legally Speaking, joined, as always, by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:07] Good morning. Always great to be here. I’m doing well.
Adam Stirling [00:00:09] I’ve had a lot of people asking me complicated questions, Michael, about things like blocking a highway; about things such as whether it’s a criminal offence, whether they can sue somebody that blocks a highway. Of course, I’m not a lawyer. You are, and you have done some preparation to help us better understand how these issues intersect with the criminal justice system. Take it away.
Michael T. Mulligan [00:00:30] Well, happily, on this front, the legal answer is relatively straightforward, and I must say it’s not every day you can say that. So, the legal answer to whether you’re permitted to block a highway in order to conduct a protest. The answer is no. And the answer comes from section 423 of the Criminal Code, which makes it an offence punishable either by indictment or by summary conviction, for a person to do something designed to compel somebody from not doing something they’re lawfully have a right to do, like travelling down the highway. And indeed, it expressly prohibits in section 423 Sub one (1) (g) an act of blocking or obstructing a highway. That section of interest was actually referenced by the judge when granting the initial injunction from blocking the logging in the Fairy Creek area, because the judge commented on it in the sense of whether it was possible to get an injunction prohibiting something which was already a criminal court offence.
Adam Stirling [00:01:46] Yes. Enforcement gap issue. Yeah.
Michael T. Mulligan [00:01:48] Yeah. And the judge concluded, yes, indeed. You can still get an injunction for something which would independently be a criminal offence. Now, the other thing to be said about that is that some wrongly have reference to the provisions of Section two of the Charter as somehow an exception to that criminal code prohibition on blocking a highway.
Adam Stirling [00:02:11] Yes.
Michael T. Mulligan [00:02:12] Section two of the charter affords the right to freedom of thought, belief, opinion, and expression, including freedom of the press and other means of communication. And indeed, that is an important charter protected right. But the right to freedom of opinion and expression doesn’t provide the right to express yourself in any way you like, right? You might feel very strongly about a topic, but you’re not permitted to go in spray paint it on the side of a bus.
Adam Stirling [00:02:38] No,.
Michael T. Mulligan [00:02:39] Even though Yes, indeed, that’s a form of expression, for sure, but it’s still unlawful. It’s mischief. You can’t do that.
Adam Stirling [00:02:46] Yes.
Michael T. Mulligan [00:02:47] And so it’s not a matter of degree. It’s a matter of you can’t block a highway. It’s a criminal offence. You can’t do that, period. You do have the right to freedom of expression, but you do not have the constitutional right to express yourself in any way you like. And so, the only thing preventing the arrest of people who are blocking the Pat Bay Highway is the discretion of the police who were there, right?
Adam Stirling [00:03:14] Yes.
Michael T. Mulligan [00:03:14] And the police, of course, have wide discretion in terms of how they might choose to enforce the law. You know, for example, the police have a standing policy. Most do, for example, when there is somebody who might be engaged in a high-speed chase, like if you have somebody who you know, takes off from a roadblock, the ordinary police response is not going to be to chase them through the city of Victoria Dukes of Hazzard style leaping over, you know, rivers and this kind of thing. The idea there would be, look, yes, appreciate that person is fleeing, but get a description, get the licence plate number radio ahead. Put down a spike belt. Not everything is going to require the most immediate, forceful action, but that’s just entirely a function of police discretion in terms of how they choose to enforce the law. And so, the clear legal answer here is no right to block a highway. It is a criminal offence. There’s absolutely no way to express yourself and to hold whatever beliefs you see fit. You just can’t express yourself in that way. And we’ve seen also this week, one of the early examples from the Supreme Court enforcing the injunction against blocking the highway and logging efforts by Teal Cedar Products.
Adam Stirling [00:04:37] Yes.
Michael T. Mulligan [00:04:38] And this was a sentencing that occurred up in Nanaimo this week. It was a 26-year-old who had in contravention of the injunction, locked herself to somebody else in a “Sleeping dragon”.
Adam Stirling [00:04:55] Yes.
Michael T. Mulligan [00:04:55] Arms locked in a pipe.
Adam Stirling [00:04:56] Yeah.
Michael T. Mulligan [00:04:57] Blocking the road. She was arrested. She pled guilty at an early opportunity to criminal contempt, the crown in that case sought a $1,500 fine. Her lawyer asked for a fine of $300, pointing out her modest income, I think she was a dance instructor, and pointing out that she has no previous record.
Adam Stirling [00:05:23] Yes.
Michael T. Mulligan [00:05:23] The judge nonetheless imposed the $1,500 fine recommended by the asked for by the Crown, bearing in mind that the principles of sentencing when sentencing somebody for criminal contempt. The first consideration is denunciation and deterrence.
Adam Stirling [00:05:41] Yes.
Michael T. Mulligan [00:05:42] And the need to maintain the rule of law. The judge did, however, take into account the fact that she was remorseful, that she pled guilty at an early opportunity, that she had no previous record. She was young, 26 years of age, and the judge allowed that if she pays the first $1,000 of the fine as ordered and avoids any further breaches of the court orders for a period of one year, the judge would, the judge permitted the fine to be reduced, on the if she does those things to an amount of $1,000. So, the judge also pointed out that the that sentence was one which would, I think, quite properly be described as one that’s sort of modest in the circumstances.
Adam Stirling [00:06:36] Yes, yeah.
Michael T. Mulligan [00:06:36] And the Court of Appeal has previously set out how these things are to be approached. And ordinarily, what will happen is the court would start with the lesser penalties and then will increase them over time. If the contemptuous activity continues.
Adam Stirling [00:06:53] Yes.
Michael T. Mulligan [00:06:54] And will simply increase them endlessly until eventually compliance is achieved. And so, the message here should not be that a fine would necessarily be the outcome for somebody who were to breach an order now. In fact, that may be quite unlikely.
Adam Stirling [00:07:10] Yeah.
Adam Stirling [00:07:10] Because the clear law that the penalties are to increase until compliance is achieved. But that’s what was done in that case,
Adam Stirling [00:07:19] and I was reviewing some of the details around that case, Michael. And it does seem fair because this is a person who, as you’ve mentioned, does not have a violent or criminal history, in fact does not have a history of causing problems at all, genuinely was concerned about biodiversity loss and destruction of the natural habitat. Someone who is remorseful, who admits that what they did was wrong, who says they won’t do it again. I think that it’s it’s appropriate for the court to show the sort of relative leniency that it is here and saving any harsher penalties or actual jail time from those who demonstrate intransigence or a lack of willingness to defer to the court and obey.
Michael T. Mulligan [00:07:57] That’s right, and the judge pointed those things out, right.
Adam Stirling [00:07:59] Yeah.
Michael T. Mulligan [00:08:00] The fact she admitted her contempt in an early opportunity was respectful, remorseful, pled guilty. All of those things and the background that you mentioned, all of that was taken into account when concluding that the financial penalty rather than a jail sentence, was the appropriate outcome for that particular individual. And Judge pointed out, of course, as well that sentencing is an individualized process and while the, you know, principal considerations for criminal contempt or deterrence and denunciation of the conduct to maintain respect for the rule of law. The court is required to take into account, of course, all the personal circumstances of the person who was guilty of criminal contempt when determining what would be the for sentence for them. And so, I think that’s that’s what we saw here.
Adam Stirling [00:08:47] All right. Let’s take our first break when we come back. Legally Speaking, continues on CFAX 1070. That ministerial order with respect to gasoline rationing, we’ll go through it. Why, it’s interesting from an economics perspective and perhaps legal…
Adam Stirling [00:09:01] As legally speaking continues here on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers. Michael, the various debates that we’ve had over the years about infrastructure such as the excuse me, the Kinder Morgan Trans Mountain expansion for the pipeline have given ordinary person such as myself a crash course and things like section or the sections of the Constitution Act, that deal with inter-provincial undertakings, lines of steam and other ships, things like laws of general application with Campbell-Bennett versus Comstock Midwestern Limited in 1954. That was one of the cases that you helped us understand exactly how that whole thing fits together. Now we’re taking a look at an order with respect to gasoline consumption here in BC, because of, among other reasons Trans Mountain has been shut down, seems to all revolve around this pipeline. Take us through this order.
Michael T. Mulligan [00:09:51] Sure. So, this is an order. It’s Ministerial Order for 454 and it’s under the Emergency Program Act. Of course, back in an emergency, yeah, and there are a number of things about the order that are interesting, from both a Canadian perspective, and I think perhaps from an economic perspective. The origin of the problem here, the bigger fuel supply problem, in addition to the Malahat, one that seems to have been getting ironed out.
Adam Stirling [00:10:19] Yeah.
Michael T. Mulligan [00:10:19] Is that a very large portion of the fuel for cars in British Columbia comes through the Trans Mountain pipeline in the form of either crude oil, which then gets refined in Burnaby or through a trunk line in Washington state, and as well, a significant portion that isn’t refined to those places comes through the same pipeline as refined gasoline.
Adam Stirling [00:10:43] Yes.
Michael T. Mulligan [00:10:44] And the alternative largely is by train, which of course, hasn’t been functioning either. Hence, the shortage of fuel.
Adam Stirling [00:10:51] Yes.
Michael T. Mulligan [00:10:52] And so this ministerial order is intended to address that. First of all, with respect to the pipeline, if you look at what the Trans Mountain Pipeline or people are saying, it’s sort of they’re hopeful if everything goes well. No other problems occur. All these various provisos, that by the end of the week, they should have the pipeline partially running again. Let’s hope we don’t get a whole bunch more rain in the next couple of days. So, this order most people are familiar with, of course, the limits that have been placed on gasoline purchases. So, this is the order that prohibits the purchase or anyone knowingly selling more than 30 liters of fuel at any time. For somebody who doesn’t have an essential vehicle like a police car or fire truck or, you know, some of those sort of categories of things.
Adam Stirling [00:11:42] Yes.
Michael T. Mulligan [00:11:43] But other interesting aspects of it. First of all, there’s a nice Canadian aspect to it. Some sixth of the order says this “a person must not engage in abusive or belligerent behaviour towards another person in relation to the other person’s effort to comply with or enforce this order.”.
Adam Stirling [00:11:58] Interestingly.
Michael T. Mulligan [00:11:59] Actually we have a nice Canadian provision, be polite.
Adam Stirling [00:12:02] Or else/.
Michael T. Mulligan [00:12:03] Or else, I might point out the admonition to be polite causes people to be polite. It’s kind of like the sign that says, please obey what’s written on signs. But the other interesting element of this from an economic perspective, is paragraph four of this ministerial order.
Adam Stirling [00:12:19] mm hmm.
Michael T. Mulligan [00:12:19] which provides that essentially the retailers and wholesalers of gasoline fuel are not permitted to increase prices such that they are by gross profit margin would be greater than their profit gross profit margin for the 90 days immediately preceding the date of the order, which is interestingly worded.
Adam Stirling [00:12:42] Yeah.
Adam Stirling [00:12:43] So it’s no gouging, I guess that would be described.
Adam Stirling [00:12:46] Yes.
Michael T. Mulligan [00:12:46] But collectively, those two things I’m not sure that you know, certainly I think the idea of not allowing gouging when there’s limited supply and no real competition is probably a wise idea. But I’m not sure whether those two things the limit on the amount somebody can purchase, as well as a trying to limit the price of something, necessarily fits with principles of economics, right?
Adam Stirling [00:13:12] Yeah.
Michael T. Mulligan [00:13:12] Ordinarily, the way you try to ration something which is in short supply is by price.
Adam Stirling [00:13:16] yep.
Michael T. Mulligan [00:13:17] When the price goes up people will consume less of it.
Adam Stirling [00:13:19] Exactly.
Michael T. Mulligan [00:13:20] And there’s been some interesting studies on that in terms of gasoline. Like at one point we seem to think, well, it’s basically inelastic, like if you raise the price of gasoline prices went up, the prevailing wisdom seemed to be, well, that’ll make no difference. People just have to get to work or pick up their kids or get to the hospital, so they’ll just pay any price. But recent studies show that that’s not necessarily so. And there are some recent studies that show that, in fact, even in the short term, when somebody couldn’t go and buy a more efficient vehicle or buy a bike or something else, that price fluctuations in gas actually make a difference. And the degree to which they make a difference appears to be about 0.37% per 1% increase in gas prices. To raise gas prices by 1%. You’re going to expect to see a short term decrease in demand of about 0.37%. Interesting. So, if they don’t get the pipeline back up and running this week and we have a longer-term shortage of gasoline, I think there’s a public policy question here about do we continue with a policy intended to try to restrict how much you can buy each time, along with an effort to keep prices low? Or would it make sense to, for example, implement a short term emergency tax on gasoline, perhaps to help pay to fix all the roads and bridges that are washed out, in a way that would increase the price and therefore decrease the demand, causing people to take short term steps like, well, I guess maybe I will carpool or maybe I won’t load up, you know, six jerry cans to be ready to refill the lawnmower next summer or something. You could raise the price and it looks like. You know, economics tells us that indeed, even in the short term with gasoline, it would have the effect of decreasing prices. And so if the pipeline isn’t back up and running as we would hope it would be, there may be room for some consideration about whether the combination of trying to restrict demand by restricting how much you can buy and keeping the prices low, whether we’re fighting the laws of economics there, or whether there might be some response, like what I’ve suggested in the short term, if you said, look, there’s going to be a significant tax on gas for two weeks, only buy if you need it, don’t fill up your lawn mower or top up your tank. Whether that might be more effective than hoping everyone is going to be polite and respect the signs taped to gas, you know, gas pumps, and the provision telling you to be not be belligerent. So, let’s hope they get the pipes fixed.
Adam Stirling [00:15:53] I just, you can always reflect upon the regular clientele in any establishment where there’s a sign on the wall expressly prohibiting belligerence from taking place. I’d say every day, anytime I see a warning written somewhere, I’m thinking somebody somewhere caused that. So perhaps.
Adam Stirling [00:16:09] yeah.
Michael T. Mulligan [00:16:09] That says more about us than it is about the regulation itself. We also have,
Michael T. Mulligan [00:16:14] if that sign doesn’t work, that wouldn’t telling you not to be belligerent. You can install a second sign next to the first sign that says, make sure you adhere to everything written on signs.
Adam Stirling [00:16:22] Absolutely.
Michael T. Mulligan [00:16:23] Maybe that’ll really that’ll produce some extra oomph to get that second sign work.
Adam Stirling [00:16:26] We do have one more matter to discuss this week. It’s a marijuana trafficking sentence overturned in the Court of Appeal. We’ve got five and a half minutes.
Michael T. Mulligan [00:16:35] Yes, indeed. So, this, I must say, is probably one of the last cases we’re going to see of this kind, right, because of how we’ve changed, how we’ve dealt with cannabis over the past few years, right? You know, it’s gone from the point where when I started practicing, they would prosecute people for, you know, tiny amounts of marijuana found in their pocket when arrested for something else to the point of in the middle of a pandemic, the government selling marijuana in stores is an essential service and we must keep it open at all costs. So, we really come quite a distance here.
Adam Stirling [00:17:08] We have.
Michael T. Mulligan [00:17:09] And so this was a Court of Appeal decision which followed from a prosecution of a man from back in 2017, right? Those things were getting ready to change who was selling marijuana at a compassion club. And he made a constitutional argument about whether that should be permitted constitutional or you. It didn’t work. He then had a trial. He was convicted. He appealed the action, arguing again the constitutional issue for the now defunct law. That failed. And so finally, that’s why it is that in 2021, we have the Court of Appeal now dealing with the sentence appeal from the sentence that was imposed on the man. And the reason for that is that if you have both a conviction appeal and a sentence appeal by an accused person, the Court of Appeal would deal first with the conviction appeal. Because of course, if that works, you then don’t need to deal with the sentence appeal. So doing it in the reverse order wouldn’t make any sense. And so that’s why it is that this matter is still being dealt with in 2021 as the government has marijuana stores all over the place. And what happened is following the man’s conviction, the man had asked for what’s referred to as a conditional discharge. A conditional discharge would be associated with a period of probation, and if you successfully complete the period of probation, you then would be deemed not to have been convicted of the offence. And that can be meaningful for marijuana and other drug offences because if the offence shows up on your criminal record, there’s no way you’re getting across the border into the U.S., They’ll will be aware of it. And so, or many other countries, in fact, where we might share that information. Here the man had asked for a conditional discharge, but instead the judge imposed a sentence that wasn’t a discharge of various one day jail sentences and a $250 fine, which of course, doesn’t sound too onerous. But it meant that he wound up with a criminal conviction for something that’s now lawful, meaning that he would have potential difficulties being able to travel. And so that’s why it was important to him, and the case is also an interesting one, even though the subject matter is no longer going to be too relevant because we no longer deal with marijuana in this way. But the Court of Appeal found that the judge made an error because the judge failed to, in the judge’s reasons, sort of square up and addressed what this man had asked for. Right. This conditional discharge and demand at sentencing didn’t have a lawyer, so it wasn’t the most, you know, the longest submission for why he should get a discharge. But the Court of Appeal found that because the judge failed to address why the conditional discharge would not be appropriate, and there’s a test for it from a case called Regina vs. Fallowfield. That analyses whether the discharge would be in an offender’s best interest and then whether it would be contrary to the public interest. And because the judge didn’t address that and go through the test and explain why the judge didn’t think that was an appropriate sentence, that that amounted to a material error. And so that was the basis for the Court of Appeal overturning the one-day sentence on the $250 fine and instead imposing the conditional discharge that had been asked for. And so, the other interesting takeaway, in addition to the fact that this man is probably the last man to be sentenced for this particular offence, in Canada. Is that it stands for that important principle, which is that a judge needs to explain themselves and how they’re coming to their decision. They don’t just come out and give a thumbs up or thumbs down. And that wasn’t done here, and that was the basis to interfere with it. So that’s, I think, the important takeaway there. But the final bit of legal news for this week is that Supreme Court judges have renamed themselves.
Adam Stirling [00:21:08] Really.
Michael T. Mulligan [00:21:09] And so we used to use in court for Supreme Court judges. It was My Lord, My Lady.
Adam Stirling [00:21:13] Yes.
Michael T. Mulligan [00:21:14] Your lordships, your ladyship.
Adam Stirling [00:21:16] Yes.
Michael T. Mulligan [00:21:16] The Supreme Court sent out a directive this week that all those terms are now to be avoided. And I must say, I think they kind of missed out on an opportunity here. In the past, there was a movement by some Supreme Court judges to adopt your honour, which is the term used in provincial court.
Adam Stirling [00:21:33] Yes.
Michael T. Mulligan [00:21:33] And of course, it’s gender neutral, which is one of the other things we’ve been sort of aiming for by having people indicate what pronouns are preferred for counsel and clients.
Adam Stirling [00:21:42] Yes.
Michael T. Mulligan [00:21:42] But instead of going with your honour, the directive indicates that the new mode of address, because My Lord and My Lady or to be avoided will be Justice, Madam Justice, Mister justice, or interestingly, Chief Justice or Associate Chief Justice, which previously, of course, all of us in the know would have known exactly who the Chief Justice was.
Adam Stirling [00:22:02] Yes.
Michael T. Mulligan [00:22:02] But now they’ve directed that there be that form of address in court, which is an interesting move. The other challenge here, it seems to me, is that we are still left with Mister Justice or Madam Justice rather than your honour, which would be more neutral. I suppose we could all just use the Justice option there. But I’m not sure we advance the ball too much by maintaining the Mister and Madam Justice. Also, the adding the Chief of Associate Chief Justice reminds me a little bit of the U.S. former Chief Justice of the U.S. Supreme Court. Rehnquist. Who decided that he needed or gold tassels, put around his arms to differentiate himself from all the other just mere Supreme Court Judges. And so, he made up his own uniform, to wear into court, the most recent U.S. Supreme Court Chief Justice went away from that and no longer has the gold armbands sewn on his on his robe. But in any case, don’t get rid of My Lord and My Lady. Believing there to be avoided is now Justice Madam, Mister, associate, or Chief Justice, if you’re in Supreme Court.
Adam Stirling [00:23:09] It’s like the top judge in the country. What do they wear on their armband? It’s the same answer to the question of where does a 500-pound gorilla sleep, anything they want or anywhere they want?
Michael T. Mulligan [00:23:17] I don’t see them. The Canadian Supreme Court was taken down a notch or two in US late night TV this week, when the picture of them wearing their red robe. O.
Adam Stirling [00:23:25] Oh yes.
Michael T. Mulligan [00:23:25] White fur on it was trotted out and making fun of them, looking like a group of people dressed up like Santa Claus. So, I guess the moral of the story is no matter what you what position you wind up in life, you’re not immune to being taken down a notch or two by the outfit you’re wearing
Adam Stirling [00:23:42] Michael Mulligan pleasure, as always, until next week.
Michael T. Mulligan [00:23:45] Thank you so much stay safe.
Adam Stirling [00:23:46] Michael Mulligan with, Legally Speaking, here on CFAX 1070.
Automatically Transcribed on November 29, 2021 – MULLIGAN DEFENCE LAWYERS