This week on Legally Speaking with Michael Mulligan:
Section 8 of the Charter provides that everyone has the right to be free from unreasonable search or seizure.
A search conducted by the police, without prior judicial authorization, is presumptively unreasonable.
One of the exceptions to this principle is that police are permitted to conduct searches incidental to a lawful arrest.
If a police officer has reasonable grounds to believe that someone has committed a criminal offence, they are permitted to arrest them.
When arresting someone, a police officer is permitted to search them, and the areas surrounding the person being arrested for safety, means of escape, and evidence of the offence for which the person is being arrested.
In a case discussed on the show, the Supreme Court of Canada considered if the police have the authority to search a person’s home, beyond the immediate surroundings, when arresting someone.
The Supreme Court of Canada concluded that, when arresting someone in their home, they are only permitted to conduct a search, beyond the area immediately surrounding the person being arrested, they must have reasonable grounds to suspect that there is a safety risk that would be addressed by the search and the search, for safety purposes, must be conducted in a reasonable manner, given the high privacy interest in a home.
Also, on the show, a proposed class action against the University of Victoria for failing to refund the cost of parking passes when in-person classes were suspended because of COVID.
One of the claims being made by the student who made the claim was that the contract for the parking pass was “frustrated” because of COVID and the university stopping in-person classes.
For a contract to be frustrated, in a legal sense, there are two requirements:
- A qualifying supervening event for which the contract makes no provision, is unforeseen and is not the fault of either party, which
- Causes a radical change in the nature of a fundamental contractual obligation.
Because the 12-month parking pass contract provided that it could be cancelled, for any reason, within the first 4 months, for a pro-rated refund, the judge hearing the case found that provision had been made for intervening events of any kind.
In addition, the judge concluded that the parking pass contract provided only for parking and did not include an implied term that the university would be open for classes. The student was still permitted to park at the university, even if there would be no reason to do so.
As a result, the judge dismissed the claim and ordered the student making the claim to pay costs to the university.
Finally, on the show, a judge dismissed an application for an interim injunction to permit mink ranching to resume in BC.
Because COVID passes easily to and from mink and humans, the province of BC has prohibited their ranching. This easy transmission has the potential to facilitate mutations in the virus.
Despite the potentially irrepealable harm to mink farmers, the judge concluded that deference was required to the government’s efforts to promote the public interest.
An automated transcript of the show:
Legally Speaking April 14, 2022
Adam Stirling [00:00:00] Legally Speaking on CFAX 1070. Good morning, Michael Mulligan, how are you doing?
Michael T. Mulligan [00:00:04] I’m doing great. Oh, it’s good to be here.
Adam Stirling [00:00:06] Lots of interesting things on the agenda today. A search of a home incidental to an arrest. What are we looking at?
Michael T. Mulligan [00:00:13] Yeah, that’s exactly right. And so, this is a case that was just released by the Supreme Court of Canada, and it deals with the issue of, how far can the police go in searching your house when they are arresting someone? And so, the starting point for that, that the people should know about, is that if the police have grounds to arrest somebody, ordinarily that would be reasonable grounds to believe that the person’s committed a criminal offence and the police are arresting you. They would be permitted to search the person and the immediate surrounding area of the person that they are arresting.
Adam Stirling [00:00:50] Immediate surrounding area. Okay.
Michael T. Mulligan [00:00:52] yeah. Like, for example, you know, they could potentially have a look around if they were arresting somebody in the car looking around the driver’s seat area, for example. And the reason that kind of searching is permitted as a common law principle would be to permit a search to ensure the safety of the police, like make sure they don’t have, a person doesn’t have a gun in their pocket or a knife or something, to make sure they don’t have something that would allow the person to escape. They haven’t put handcuff keys in their pocket or something as a proactive measure. And further, the police can actually search for evidence of the offence for which they are arresting somebody. So, for example, if the police have reasonable grounds to believe that you have robbed the bank and they are arresting you, they’ll be able to search you and your surrounding area, maybe something like the backpack you were carrying.
Adam Stirling [00:01:46] Yeah.
Michael T. Mulligan [00:01:46] To look for things like is there a mask and gun and a bag of money in there?
Adam Stirling [00:01:50] Yeah.
Michael T. Mulligan [00:01:50] Well, probably seize that. \Now it gets a little trickier and little murkier from a legal perspective when the police are conducting a search in somebody’s home. And here’s a fact pattern that the Supreme Court of Canada was wrestling with. Police had a report of a male hitting a woman in a car. Police show up. No male or female there, but they do find the car parked in the driveway of a home. They knock on the door. No one answers. The police decide they’re going to go in without a search warrant to ensure the safety of the woman who was reported to have been hit. The open the door and shortly after, they see a woman with bruises on her face and they see a man run across from one room to another down some stairs.
Adam Stirling [00:02:34] hmm.
Michael T. Mulligan [00:02:34] Go down they arrest, the man, they search him, but then they decide to go and do a search in the room that the man ran out of. The man’s not in the room. The woman’s not in the room. The man doesn’t have any control over at that point what’s going on in there? The man has been arrested. Right?
Adam Stirling [00:02:50] Yeah.
Michael T. Mulligan [00:02:52] When they go into that other room, they see a clear bag with what they believe to be drugs in it,.
Adam Stirling [00:02:58] hmm.
Michael T. Mulligan [00:02:59] they see that, and he’s charged with possessing those drugs for the purpose of trafficking.
Adam Stirling [00:03:03] Yes.
Michael T. Mulligan [00:03:04] And so the legal question for the Supreme Court of Canada is, well, how far does that common law principle go in the context of searching other areas of somebody’s home?
Adam Stirling [00:03:17] Yeah.
Michael T. Mulligan [00:03:17] Because there is a heightened expectation of privacy in somebody’s home? And the legal starting point would be you need to have prior judicial authorization before you’re going to be permitted to conduct a search, you know, and this isn’t really a search that the person’s not escaping using something in the other room. What’s the legal status of that? And so ultimately, the Supreme Court of Canada, what they’ve done is that they have set out stricter standards for that kind of a search, which is to say the police searching something in a person’s home, outside of their immediate area, when they are arrested going into the other room. And what the Supreme Court of Canada has said is that in order to do that, the police need to have reasonable grounds to suspect that there’s something in that other place that could be a safety risk, to the police or other people or to the public, and when they’re conducting that kind of a search, it has to be done in a way that is consistent with that safety concern and reasonable; bearing in mind that higher degree of privacy somebody would expect in their home. And so, they’ve raised the bar in terms of what needs to happen in order to legally justify a search of another area of a home. But in this case, this is interesting.
Adam Stirling [00:04:37] mm-hmm.
Michael T. Mulligan [00:04:37] The police testified that they had a safety concern about that other room and the Supreme Court of Canada, and the trial, judge accepted that and accepted sort of the proposition that this was a fast-changing circumstance. They didn’t know exactly what was going on. And the trial judge accepted that the police had a safety concern about what might be going on in that other room. And the Supreme Court of Canada said, well, that’s when trial judges come to a conclusion like that, it’s due a lot of deference. And so, they found that it wasn’t unreasonable for the trial judge to have come to that conclusion. The police testified they had a concern, maybe there could be another person in the other room or some kind of a weapon. Although it’s a little hard to imagine how the weapon concerned would play out if there wasn’t some other person in there and they’ve already arrested their suspect. But bearing in mind the fast-changing circumstances that were going on and the lack of clarity, remembering they just sort of showed up in response to this report of a woman being hit in a car, and they saw this person, male, dart from one room to the other. They found that that wasn’t an unreasonable conclusion for the trial judge. And so, in this particular case, the Supreme Court of Canada found that it wasn’t improper for the judge to have admitted the evidence of the drugs found in the bag, in the other room of the home, when the police went and did what he described as a clearing search of that other room. But this case going forward is going to provide some structure and test if the police want to conduct that kind of an additional search, that’s a search sort of outside of the immediate area or person, right. But that area, you know, could include things like the backpack of the person’s feet or, you know, things immediately surrounding them. But once they start to tip toe out of that, particularly in the context of a person’s home, they’re going to need to satisfy a judge that they were doing that additional searching for as a result of a safety concern. And they have to have reasonable grounds to suspect that. And so, they would have to articulate and explain to the judge, you know what risk was posed when you searched, fill in the blank, the medicine cabinet right?
Adam Stirling [00:06:54] yeah.
Michael T. Mulligan [00:06:54] Or the kitchen drawer or the underwear drawer? Right? And the further and more intrusive the search was, you know, the harder time the police might have in justifying it. I daresay if you’re going through these medicine cabinet as a purported safety search, you’re going to a pretty tough time, right?
Adam Stirling [00:07:11] Yeah.
Michael T. Mulligan [00:07:11] But on the other hand, in some sort of emergent circumstance where somebody is injured and they’re sort of rushing in and they sort of look briefly in another room to see, hey, is there some other person in there? What’s going on here? That may be fine, but they’re going to have to justify it on this higher standard the Supreme Court of Canada has set out and that higher standard is designed to bear in mind both that constitutional right. You have to be free from unreasonable search and seizure.
Adam Stirling [00:07:38] Yeah.
Michael T. Mulligan [00:07:38] And as well to recognize that people do have a higher expectation of privacy in their home. The starting point is that the police can’t come and rummage through your home to see what they might shake out of it. But there are some circumstances like this where the police conduct may be permissible, and in this particular fact pattern, the man stands convicted of the possession of the drugs found when the police went into the other room and spotted them sitting, I believe, on a table.
Adam Stirling [00:08:07] There we go. Now we have our answer from the court. I want to take our first break. Legally Speaking, we’ll continue in just a moment. Michael Mulligan for Mulligan Defence Lawyers continues his analysis right after this.
Adam Stirling [00:08:17] Back on the air here at CFAX 1070 continuing with Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Michael, what’s next on our agenda today?
Michael T. Mulligan [00:08:26] Next on our agenda is parking at the University of Victoria and in particular, parking during the pandemic.
Adam Stirling [00:08:32] Yes.
Michael T. Mulligan [00:08:33] And so the fact pattern here is that the University of Victoria sells parking passes to students. You can buy parking passes for 12 months at I think some sort of a discount, or you could buy them for shorter periods of time but pay more. And the student in this case was the student who purchased a $568.05, how they calculated that number is a little hard to know.
Adam Stirling [00:09:00] Yeah.
Michael T. Mulligan [00:09:00] Parking pass to park between September 1st and August 31st, 2020. So, as you might imagine, when the university shut down in March of 2020 and essentially cancelled all in-person classes, moved to online instruction, and shut the gym, the student in question asked for a pro-rated refund on this parking pass, but was told no. And the University of Victoria relied upon the terms of sale, the contract for the sale of this parking pass. And the way the annual parking passes worked is that they said for the first four months you could get a refund. No questions asked, for no reason. You could get a refund pro-rated, presumably, or you would just keep buying those.
[00:09:51] I was going to say that seems like a loophole. That’s why you’re the lawyer.
Michael T. Mulligan [00:09:54] Be a very poorly drafted contract. But if you get a pro-rated refund, yeah, pro-rated refund for the first four months. No need to give any reason for it. Who knows? Maybe you stopped taking classes or bought a bike or something?
Adam Stirling [00:10:06] Yeah.
Michael T. Mulligan [00:10:07] But after that, the contract said no refunds for any reason. And so, the student wasn’t happy with that outcome. Money no doubt tight as an undergraduate student. And so, he asked for his money back and started this case going to court, asking for his money back. And the one of the principal arguments that the student was making is the concept of the contract being what’s called frustrated. You may have heard that through the concept, separate a frustrated contract.
Adam Stirling [00:10:38] Yeah.
Michael T. Mulligan [00:10:39] What is that?
Adam Stirling [00:10:39] Yeah, what is that? And so frustrated contract. There are two elements to the test or whether a contract is frustrated. The first is that an event for which the contract was made, no provision occurred, unforeseen event occurred. That was not contemplated by the contract. That was not the fault of either party and which resulted in a radical change in the nature of the fundamental contractual obligation. It’s a bit of a mouthful.
Adam Stirling [00:11:10] Yeah.
Michael T. Mulligan [00:11:11] But those are the elements, it has to be this unforeseen event. Nobody made any provision for it, is not the fault of anyone, and it radically changed the fundamental nature of the contractual obligation. So that’s the test for it. And the decision, which just came out this week, was a decision, it’s an application brought by the university to cancel or strike out the claim brought by the student on the basis that it had no chance of success at trial. Sort of to what your claim here can’t work, right? No triable issue.
Adam Stirling [00:11:43] Yeah.
Michael T. Mulligan [00:11:43] And so the judge had to analyze, was the parking contract frustrated in a legal sense as a result of cancelling all of the classes and shutting down the gym? Because the student argued that, look, there was sort of an implied term here that there would be something you might want to park for at the university, right? And his evidence was, look, you know, I purchased this for the purpose of going to class and going to the gym. And so, the trial judge or the judge had to struggle with what are, is there an implied term of the contract, that the university remain open?
Adam Stirling [00:12:21] Yeah.
Michael T. Mulligan [00:12:21] And then was there a, in the legal sense, a frustration of the contract by the intervening fact of the pandemic closing everything? And ultimately, the judge concluded that both there was no implied term in the contract, that there be classes open. That this contract was simply a contract to park your car at the University of Victoria. And this was the language he used ” While I accept that switching to online learning and the campus closure rendered the parking contract less useful. I am unable to conclude that it renders it fruitless.” And so essentially, the judge concluded that there was no implied term that something would be open that you might wish to park for. This was just a contract to park there and that wasn’t frustrated, or it wasn’t like a meteor hit the university and there were no parking spots left. You could still go and park there. And so, she concluded that the contract wasn’t frustrated because it, first of all, wasn’t a completely unforeseen event. The contract contemplated somebody cancelling it for any reason within four months.
Adam Stirling [00:13:36] mm-hmm.
Michael T. Mulligan [00:13:36] Furthermore, you could still go park your car up there, and she found that there wasn’t some implied condition of the term of the contract that classes would keep going where you could purchase, you know, if you wanted to park up there to go walk your dog or just wanted to park there. And so, the result of it is that the judge found that there was no trailable issue here, there was no hope that the student would succeed in his claim, because the contract wasn’t frustrated and there was no implied term that classes would keep going or the gym would be open. The parking contract was only a contract to park, and he wasn’t prevented from parking there. He just happened to have no particular need to park there after the university shut down for all in-person operations and so the net result, not only will the student not wind up with a pro-rated refund of his $568.05, but the judge has also ordered costs in favour of the university, and so I rather suspect that the student may be on the hook for vastly more than the pro-rated $568. He’s going to wind up with a big bill of costs as a result of this litigation, which the university has succeeded in having stopped on the basis of indicated.
Adam Stirling [00:15:04] The anticipated cost. Yeah, the anticipated costs of litigation itself often serving as a deterrent for either frivolous or misuse of the courts. And this may in time I think viewed be viewed by some as being exactly that. What do you think?
Michael T. Mulligan [00:15:20] You know, that’s a concern. It’s also a live issue in terms of how class actions are dealt with, right?
Adam Stirling [00:15:27] I see.
Michael T. Mulligan [00:15:27] Because this student wasn’t operating on the basis that this is just my effort to get back the prorated $568.
Adam Stirling [00:15:34] I see.
Michael T. Mulligan [00:15:34] Ultimately, it was going to try to be a class action to get a refund for all of the student.
Adam Stirling [00:15:39] Okay.
Michael T. Mulligan [00:15:40] Nobody’s litigating $568, right?
Adam Stirling [00:15:42] No.
Michael T. Mulligan [00:15:42] Doesn’t make any sense.
Adam Stirling [00:15:43] No.
Michael T. Mulligan [00:15:44] And in BC, once a case gets certified as a class action, at that point, there isn’t a costs risk to the person who’s the potential plaintiff. But here, this application by the university was prior to the case being certified as a class action. And so, what it means is that this student will be personally on the hook for the costs. And of course, it’s hard to know sort of what how that person came about or whether they were recruited to be the representative person or wanted to do it. It’s hard to know,.
Adam Stirling [00:16:19] Yeah.
Michael T. Mulligan [00:16:19] But one of the concerns there is it could be potentially a deterrent to bringing meritorious or arguably meritorious claims on behalf of other people as a class action. Right? Because for an individual, you might say, why would I risk costs being awarded against me of thousands of dollars when all they can possibly get out of this is going to be a couple of hundred bucks back from my parking pass? But if nobody’s willing to stand up and argue about that, you may never have litigation to sort out whether there should have been a refund for the parking passes, which could turn out to be a very large amount, just spread out over a large number of people. And so, the cost thing is a really interesting point. Other provinces and class actions have taken a completely different approach, like in Ontario. If a party loses, there can be a cost award. And so, you could wind up with a representative plaintiff, potentially on the hook for huge sums of money if a class actually goes all the way to the end and then does not succeed. And so, I guess there would be a really interesting public policy question there; should you have costs awards against people who are bringing a proposed class action? Or, you know, the upside is that that might deter claims that aren’t meritorious. But on the other hand, sometimes that might not be obvious at the beginning. And so, you could wind up in a circumstance where a person might be deterred from bringing a claim that could be in the broad sort of public interest right. If you want to encourage, you know, the resolution of things where you’ve got a large number of people who may be out cumulatively, a lot of money, but individually not so much. Which is really sort of the purpose of the class action regime. Otherwise, large entities could do with impunity, whatever they want.
Adam Stirling [00:18:06] Yeah.
Michael T. Mulligan [00:18:06] And then require everyone to sue them individually, which would not make, in most cases, much sense.
Adam Stirling [00:18:12] it makes a lot of sense, though the way you explain it. Thank you for that. We have a three and a half minutes left and I’m reading here and I’m making sure I’m not misreading it, says “No interim injunction for mink farmers from COVID 19 rules”.
Michael T. Mulligan [00:18:26] Indeed, so this is…the provincial government made regulations, including under the Fur Farm Regulations. Who would have thought we had fur farm regulations, but indeed we do. Prohibiting essentially the breeding of mink, because the evidence appears to be that farmed mink are susceptible to getting COVID 19 and that they readily transmit it back and forth to people. And so provincial government has a concern that if you wind up with a virus like this transmitted readily back and forth between people and mink, you could well wind up with some really unhelpful mutation. Right?
Adam Stirling [00:19:08] Yeah.
Michael T. Mulligan [00:19:08] And if we’re throwing stones at, you know, bats or pangolins or whatever being told in a wet market, perhaps we ought not to be spreading the virus back and forth to a bunch of mink to see what might come of that.
Adam Stirling [00:19:20] Mm-Hmm.
Michael T. Mulligan [00:19:20] And so as you might imagine, the Mink Breeders Association and the British Columbia Mink Producers Association, I bet you didn’t know either of those existed 30 seconds ago. And naturally, a number of ranches which ranch mink, who were prevented from doing, so didn’t so much like the fact that they’re being told they can’t do so because of the public health concerns of mutating COVID 19 by despite safety concerns passing the virus back and forth to herds of mink. And so, there’s litigation involving that. The Mink Breeders Association and others are arguing things like whether the province has jurisdiction or whether this is a federal matter. There are things they want to argue about litigate and they may have merit, right? The judge concluded that, you know, there’s meaningful things here to litigate, but they were applying for. That is to say the mink farms and the Breeders Association were applying for an interim injunction to try to stop the regulation from having effect so they could get back to breeding mink. And so, the judge here had to decide whether to grant the injunction. And we’ve talked before about the test for an injunction. You’re going to look at things like, is there a case to be tried there. Serious issue to be tried. Is there irreparable harm that met those requirements? There’s a serious legal issue. Is there irreparable harm? The judge said yes indeed, you can’t just easily start up your mink farm again. I guess maybe challenging getting the mink to get that going. But ultimately, the were denied their injunction because one of the principles is that there be deference to decisions made by the government in terms of whether they are for the public good and whether they would promote the public interest. And so, when you’re weighing the sort of third balancing, balance of interest’s component, of an application for an interim injunction, a judge needs to consider those things. And here the judge found that even though there is a serious issue and even though there might be irreparable harm to the mink farmers, well, particular risk of the mutation might be low. It’s real, and the result of it could be devastating if there is some mutation in the virus by passing it back and forth to mink. And so, as a result, the judge has denied the application for an interim injunction to the mink farmers. And so, at the moment, no mink farming and we’ll have to wait the eventual outcome of the case to see whether the mink ranches are successfully getting going again, despite the COVID risk of passing the virus back and forth.
Adam Stirling [00:22:07] The mink shall rise again, or at least it is hoped one might think. Michael Mulligan. Pleasure as always. Thank you so much. We’ll talk to you next week.
Michael T. Mulligan [00:22:15] Thanks so much. Have a great day.
Adam Stirling [00:22:16] All right. Legally Speaking, on CFAX 1070
Automatically Transcribed on April 14, 2022 – MULLIGAN DEFENCE LAWYERS