Hunting Dilemmas, Ticket Troubles, and Duty of Care

 

What happens when a seemingly straightforward hunting trip turns into a legal conundrum over age determination and strict liability offences? Join us as we unpack the captivating case of the Massey Ram. Michael Mulligan from Mulligan Defence Lawyers sheds light on how hunters can find themselves in hot water under the Wildlife Act and why counting horn annuli is not as straightforward as it seems. We unravel the complexities of distinguishing between criminal and strict liability offences and explore the intriguing defence of due diligence using relatable examples like speeding.

Ever wondered about the ripple effects of handling a traffic ticket? Hear the cautionary tale of a commercial truck driver whose career took an unexpected turn after a simple payment. We dig into the implications of equating ticket payment with a guilty plea and the arduous journey of appealing a conviction past its deadline. And, in a recent Vancouver legal case regarding tree removal in a local park, we dissect why a judge ruled against a park injunction despite public concerns. This episode promises an enlightening journey through the intricate world of legal regulations, duty of care, and the far-reaching consequences of seemingly minor decisions.

 

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 Oct 3, 2024

Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor from Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070, joined as always by Michael Mulligan. Morning, Michael. How are you doing?

Michael T. Mulligan [00:00:11] Hey, good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:13] What’s on the agenda this week? I’m looking at something involving the Wildlife Act hunting regulation. And it says, how old was the Massey Ram? How old was it?

Michael T. Mulligan [00:00:24] It’s a little unclear, but apparently it wasn’t eight. And that does matter under the Wildlife Act.

Adam Stirling [00:00:29] Okay.

Michael T. Mulligan [00:00:30] And I must say, as I read this case, it’s both. I thought, you know, interesting in terms of the particulars of what you do with a wild ram. But also, I must say, I found it remarkable as I read through all 24 pages, given the, you know, general chaos that we’re dealing with on our streets every day, that there’s a fair bit of prosecutorial resources going into the prosecution of a hunter, of the massey ram. But here’s the story. So this case involves a hunter who’s charged under the Wildlife Act with killing a ram referred to as in capital as the MASSEY RAM. And the way that works is this. The Wildlife Act, Section 26, makes it an offence for somebody to hunt, take trap wound or kill wildlife when it’s not within the open season. Now, there is a particular types of rams, including apparently a type of Ram referred to as a full curl thin horn Ram mountain sheep, which is in fact defined in the regulations to be any thin horned Ram mountain sheep that has attained the age of eight years, as evidenced by a true horn annuli or as determined by the regional manager designate. So the hunter in question, in fact, had a required hunting license to hunt for a full curl, thin horned Ram Mountain sheep. The challenge here is that in order to meet that definition, the Ram has to be eight years old. And as you might imagine, that can be challenging. Now, how does that work from a legal perspective?

Adam Stirling [00:02:19] Yeah.

[00:02:20] You know, if you’re charged with a crime, like a true crime under the Criminal Code, most people be familiar with the idea of the actus reus and the mens rea, we think you’ve heard of that.

Adam Stirling [00:02:31] Yes,

Michael T. Mulligan [00:02:32] Actus reus would be like doing the illegal thing. Like did you physically go and do it? The Mens Rea involves the idea of a person intentionally doing it right. Like we you know, we prosecute people for assault. If you go up and, you know, stab somebody on the sidewalk, but you’re not guilty of assault if you trip and fall into somebody.

Adam Stirling [00:02:52] Yeah.

Michael T. Mulligan [00:02:53] For example.

Adam Stirling [00:02:54] Yeah.

Michael T. Mulligan [00:02:54] And so although that you might even not have the actus reus but the idea of the criminal offences that you’re charged with doing something purposely wrong, not just whoops.

Adam Stirling [00:03:02] Yeah.

Michael T. Mulligan [00:03:03] So this kind of an offence is different from that. It is what was, what is referred to as a strict liability offence. And to give you an idea of the difference, another example might be speeding, for example, in your car if you are going too fast, right, beyond the lawful speed limit.

Adam Stirling [00:03:23] Yes.

Michael T. Mulligan [00:03:23] The crown doesn’t need to prove you intentionally did that. Like it’s not a defence to say. I just didn’t realise I was going 60 in the school zone. I thought it was going 30.

Adam Stirling [00:03:32] Yeah, you either do it or you don’t.

Michael T. Mulligan [00:03:35] Yeah, but there is a thin window there where you could establish, even if the crown proves you did the thing, like you went over the speed limit or you shot the you know massey ram that may or may not have been over eight years of age. If you can show that you were duly diligent, like you took all of the reasonable steps to make sure you didn’t do the thing right. You know, so let’s say you’re in the car, let’s say you’re driving along, you’ve got a new car, everything seems to be fine and the accelerator pedal sticks down, right?

Adam Stirling [00:04:11] Yeah.

Michael T. Mulligan [00:04:11] The car starts accelerating enough. You’re doing everything you can to stop that thing from speeding. Really had no idea this was going to happen. You’re pulling the emergency brake, you’re putting it in park, you’re doing everything right.

Adam Stirling [00:04:21] yes.

Michael T. Mulligan [00:04:22] But that you might well, in that case. Yeah, I did exceed the speed limit, but I had no idea there was a problem and I did everything I could to stop it from happening. I was duly diligent. It wasn’t a badly maintained car. I was all over it and everything I could. You would have a defence, right, potentially on the basis of due diligence.

Adam Stirling [00:04:38] yes.

Michael T. Mulligan [00:04:39] And so in this case, what happened is this fellow apparently a hunting partner, apparently, it’s quite a process to get yourself a ram spotted this ram and had watched it for some period of time. Months, in fact, now from July to August they had watched this ram. And there is a process. You heard that reference in the definition true horn annuli, and a horn annuli is like a ridge or bump in the horn. And apparently what happens with this kind of Mountain sheep is they grow horns as they get older and there are ridges, and the ridges are like how much the thing the horn grew each year. Yes, it’s kind of like the rings of a tree. But you see them from the outside, right.

Adam Stirling [00:05:25] Yeah.

Michael T. Mulligan [00:05:26] And so there is a way you could try to age a mountain sheep by counting the rings, basically.

Adam Stirling [00:05:36] hmm.

Michael T. Mulligan [00:05:37] And so these hunters are well, that’s what I did. You know, we have used binoculars. I counted the rings. I was confident this thing was eight years old because of the rings. The problem, and interestingly, we don’t actually have a little bit of authority in B.C. on this concept of false annnuli. And the problem there apparently is that I guess like with a tree, we to see if you’re counting the rings of a tree, maybe something odd happened. Maybe there was like a drought for a period of time or maybe there was a forest fire or something.

Adam Stirling [00:06:08] mm hmm.

Michael T. Mulligan [00:06:09] Interfered with the growth of the tree. You might have some kind of indistinct ridges or an extra line, something like that.

Adam Stirling [00:06:14] Yeah.

Michael T. Mulligan [00:06:14] And that apparently can occur with the mountain sheep. And so, in this particular case, there may well have been on the horn and enough rings which counted up accurately suggested that this mountain ram was eight. And indeed, the government inspector person, when they were questioned about a sort of a certificate about how old this thing was, because the scheme involves that they were sort of uncertain about it based on counting up the rings. And in fact, the defence called an expert who was a hunting guide and had done it for many years, who was shown a picture of the rings on the horn of the horns of this thing and was asked, how old is this? And the response was eight. I guess he’d been counting up the rings.

Adam Stirling [00:07:03] Yeah.

Michael T. Mulligan [00:07:04] But ultimately, there are other more precise ways to do it. The trouble is that in order to apply the more precise ways to do it, you have to gauge what the judge referred to is that ageing the sheep requires a detailed hands on examination of its horns, which is no doubt difficult to perform if you’ve got a mountain goat running around alive. Maybe afterward you can saw the horns and half or get right up there and try to figure out whether the lines are false or not false. And so here, even though the hunter had a license and even though the hunter spanned, it looks like he and his partner, a couple of buds, are carefully looking at this thing and counting up the rings. You know, they weren’t just, you know, firing off in all directions, hoping for the best.

Adam Stirling [00:07:46] Yeah.

Michael T. Mulligan [00:07:48] The judge concluded that he hadn’t met that high threshold of being duly diligent when he chose to shoot the ram because it turned out he was wrong. And so, it’s an example of the difference between how a criminal code thing would work, where you’ve got to prove you intentionally did it. And what happens when you get into these sorts of regulatory offences, you know, motor vehicle offences or hunting offences or other regulatory things. The threshold is really high. And even if you show you did a lot of things, you know, like let’s say in your car, you said, well, you know, I don’t know, I looked at th speedometer, it looks fine, whatever. You could well find yourself convicted of a strict liability offence, even if you did quite a few things, it would seem pretty reasonable for somebody to do if at the end of the day you turn out to be mistaken. Like, I don’t know, your speedometer isn’t properly calibrated, or I don’t know, let’s see. Somebody put bigger wheels on their car, so the speedometer isn’t accurate, for example. Right? You might well find yourself in a circumstance where you genuinely did not believe you were doing something wrong. You genuinely thought you were driving the speed limit. But you know, when you put on the winter tires, they were two inches bigger than the original tires, for example.

Adam Stirling [00:09:08] Yeah.

Michael T. Mulligan [00:09:09] I mean, your speedometer isn’t accurate.

Adam Stirling [00:09:11] no.

Michael T. Mulligan [00:09:11] And so when you wind up with this kind of a offence, when you’re dealing with a strict liability offence, even if you thought you were doing everything right, if it turns out you’re wrong, you would have to get to the fairly high standard of showing that you were duly diligent to avoid committing the offence. And here the Hunter, even though counting up the rings, took time, looked at it, even though the government inspector was ambiguous about it when questioned. Ultimately, the judge concluded the Ram wasn’t eight, and even though the hunting guide was also very experienced looking at the picture, thought it looked like the thing was eight. Ultimately, the conclusion was that it wasn’t eight might have been one of those false rings. And even though the only way to sound like really be sure about the Age was to conduct this detailed hands on inspection, which somebody could not do. the Hunter in this case was convicted. And so, I thought it was an interesting case. Both in terms of how strict liability works, because it does apply to all kinds of other offences, but also in a broader sense, rather remarkable that we’re obviously putting a fair bit of resources into making sure that the Rams are safe, at least until they’re eight, which point appears to be open season on the Rams when we get a lot of other things going on. But that’s the case of the Massey Ram, that strict liability. And that’s why you had better be really, really sure that your Ram is at its eighth birthday before you decide to take it lest you wind up in court and convicted.

Adam Stirling [00:10:42] Legally Speaking on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers will continue right after this.

[00:10:48] COMMERCIAL.

[00:10:48] Back on the air here at CFAX 1070, Legally Speaking with Michael Mulligan for Mulligan Defence Lawyers. As we keep going, paying an MVA ticket. This says is that a deemed conviction and what does that mean? Michael, this is a complicated case. Break this down for us.

Michael T. Mulligan [00:11:02] Yeah, the case is complicated, but the issues are important. People should be aware of them because it can have a real impact on people like it did on this fellow.

Adam Stirling [00:11:11] Yeah.

Michael T. Mulligan [00:11:11] And the starting point wasn’t too complex here. What happened is this guy was a commercial truck driver and he was pulled over and he was given a ticket for using an electronic device and failing to wear a seatbelt. Okay, fine. So far, now, he paid the ticket and after he paid the ticket, his employer became aware of the convictions, and he had prior convictions for speeding and disobeying a construction sign. I guess the same year, some months earlier. And as a result of finding out about those things, his employer fired him, which then led him to think, maybe I should have appealed that ticket. I guess he thought he had some issue with the ticket.

Adam Stirling [00:11:53] Yeah.

Michael T. Mulligan [00:11:53] So he tried to appeal it, but it’s not that straightforward. And this is why this is, I think, what people should be aware of. When you get a ticket under, unlike a criminal charge, where to be convicted, it’s got to be pretty clear. You go to court, you know, how do you want to plead Guilty. Okay, fine. You’re sentenced. It’s all very clear what’s going on there. With tickets we’ve expedited the whole process to sort of have the, you know, court process kind of accord with generally what’s on the line for people. Right. That’s the whole idea behind tickets. Right. But one of the things people should know about is that if you pay a ticket, you’re deemed to have pled guilty to it. Okay. The same thing happens if you get a ticket, and you don’t dispute it within the time you’re deemed to have pled guilty to it. Then the problem arises if you try to appeal the conviction because you later find out like, my God, I lost my job. Or is also common. Somebody gets a ticket; they don’t appeal it and then they get prohibited from driving as a result. And my God, that was much more important than I thought. I should have thought that, right. I wasn’t speeding or it didn’t touch my phone. Whatever.

Adam Stirling [00:12:58] yeah.

Michael T. Mulligan [00:12:58] The problem is that it’s much more difficult after you missed the deadline to appeal it or after you paid it to go back and try to appeal it And there is a multi-part test that a judge has to apply when you’re asking to do that. And one of the first part of that is you need to show that you had a bona fide intention to appeal the ticket prior to the time period you would have had to do that. You know what I mean? So, let’s say, for example, somebody gets a ticket, yeah, I want to fight this. I wasn’t using my phone, right? Or whatever it was, I was holding my wallet.

Adam Stirling [00:13:32] Yeah.

Michael T. Mulligan [00:13:33] And so they meant to dispute it, but something happened. I don’t know. They went to the hospital, or their kid got sick, or something happened. They got called into work and they didn’t get down to get the thing to file the dispute in time. Well, that would probably be made out if that was accepted. Somebody said, Look, I meant to do it. I tried to do it, but, you know, the thing fell between my seats, or I got the date wrong, or I miscalculated the time, but I had every intention to. But here I am, right. You probably get over that threshold. But if it’s been like in this case several months, that’s much harder. And it’s also much harder if the real reason you’re down there trying to appeal the conviction is because you just found out you’ve lost your job or you just found out that, you know, you got your driver’s license taken away. Right. Because of the ticket, you may have a hard time trying to prove that you meant to do it but didn’t. Right. Because the reality may well be I wasn’t really planning to do anything about that until he found out. Oh My God, I’m fired.

Adam Stirling [00:14:28] Yeah.

Michael T. Mulligan [00:14:29] And then the fire started. And so, the person didn’t get over that threshold. And the the next assessment is then there has to be some evidence that you’re you have some merit to your case. I mean, to dispute the ticket, you don’t need to show that you, you know, have a defence to it, that’ll be in court, Crowns got to prove you’ve done it beyond all reasonable doubt. Right. Just like in a criminal case. If you contest your ticket, they’ve got to prove you were speeding not you showing up, proving you weren’t speeding, that’s an important distinction. But once you’ve paid the ticket or you’ve missed the time period, now we’re going to be into the category, okay, what is it you’re disputing here? Does that really have any chance? What do you what do you take issue with? that kind of an inquiry takes hold.

Adam Stirling [00:15:14] hmm.

Michael T. Mulligan [00:15:14] And I must say, years ago, they tried to improve this process a little bit for things where it’s clear like the person shows up there at the court registry, they’re like, hey, I missed that date. It fell between my seats, whatever. They delegated some authority to the court registry staff or JPs to determine, okay, fine, we’ll give you an extension of time to appeal this. You know where the person showed up was, Oh My God, they missed the court date because the notice came to my old address something. There’s some authority there to without having to go before a B.C. Supreme Court judge. It used to be that every single time somebody likely mailed the date to the old address or whatever happened. These people had to go to a Supreme Court judge in criminal chambers to try to appeal their case. And so, you’d show up there when they were trying to schedule murder trials and all other significant things in the Supreme Court. And there’d be like 30 people there clutching their traffic ticket, you know, because they didn’t get the date, or they missed it or swept in or whatever it might be.

Adam Stirling [00:16:10] Yeah.

Michael T. Mulligan [00:16:11] And I still have fond memories. There’s a now departed Supreme Court judge from Victoria and Judge Melvin who was very experienced and would sit in there all the time and he seemed to adopt the practice of dealing with those things en masse. Like you need everyone, okay, who’s here to receive your traffic tickets, Put up your hands. Okay. Who amongst you didn’t get the date? People have their hands still up. Appeals allowed every all of you to get a new date. So, we have improved that process. But still, if you wind up like this fellow several months after the fact, you’re going to wind up in front of a Supreme Court judge. You’re going to have to go through this legal test. You may have a real problem. And so, I guess the takeaway people should be aware of is think carefully before you either pay the ticket or just ignore it if you want to dispute it when you get one. It’s supposed to be self explanatory. The instructions are the ticket though. Do not miss the deadline and don’t think, I’ll just pay it and maybe I can fight about it later or take something later because the act of paying it is the equivalent of saying I’m guilty. And so, people may be unaware of that. You know, somebody might think, well, I’ll pay it, then I’ll dispute it later or, you know, whatever. It doesn’t work that way. You’ve just pled guilty to whatever it is you were given. And so if you don’t think you’re using your phone or weren’t speeding or whatever it is, when you get the thing, follow the instructions, get it in right away, and you won’t find yourself like this fellow fired and then unsuccessfully in Supreme Court on your own trying to persuade a judge that, you know, you met the test of planning to appeal it within time but didn’t get it done is often that rings a little hollow, as in this case. And so, this fellow’s both out of luck and out of a job. So just pay attention to what you’re doing, look at the deadlines and don’t pay it if you want to dispute it. Or you may not be able to. That is the latest from the B.C. Supreme Court on traffic tickets.

Adam Stirling [00:17:57] Up next, some of the most heated disputes, Michael, I have ever seen involving local governance involve whether or not a person is permitted to cut down a tree. I’m reading here a failed effort to get an injunction to stop a city from cutting down trees. What happened?

Michael T. Mulligan [00:18:14] Well the trees are still coming down. So, the case here involved Stanley Park.

Adam Stirling [00:18:20] Yeah.

Michael T. Mulligan [00:18:21] Stanley Park. Sadly, it would appear that they’ve had a looper moth infestation in trees in Stanley Park. So, I guess moths have gotten into the trees and apparently approximately one third of the trees in the park have been infected by the moth. And I guess it’s killing the trees. And so there have been logging efforts in the park to get rid of the moth infected trees. You know, it’s understandable, I suppose, right, I don’t know exactly how the looper moth works, but that’s what’s going on. And some people don’t want the trees to be cut down. I guess that’s also kind of understandable.

Adam Stirling [00:18:58] Yeah.

Michael T. Mulligan [00:18:58] What effect that would have if you continue to harbour the moth? I don’t know. But this particular case was brought by a group of four Vancouver citizens. They’re described as those who regularly use and rely upon Stanley Park and the forest it contains. And they describe this for their psychological and emotional well-being. And they didn’t want the moth infected trees to be cut down or yes, any trees to be cut down. And so, they filed a claim to try to stop that. And in the claim, they set out the basis for their claim and they were alleging that there was negligence taking place here and that the cutting down of the trees caused them increased stress, anxiety, and sadness from not being able to rely upon Stanley Park. And they said that they suffered increased fear for their safety. Now, I should say I should pause to say that those things in some circumstances could be actionable. But there’s just a there’s a fundamental premise when you’re making a civil claim of this kind, when you’re alleging not a claim in contract. Right. We’re like, I had a deal with you. We’re claiming somebody committed a tort like a wrongful act.

Adam Stirling [00:20:14] yeah.

Michael T. Mulligan [00:20:14] That had an impact on you, like you hit me, or you smashed my fence or whatever it is. And one of the core principles is that you need to show the person that you’re suing owes you what’s called a duty of care.

Adam Stirling [00:20:29] hmm.

Michael T. Mulligan [00:20:29] And the idea there is that you have a duty of care to not be negligent, which is to say careless with respect to people you’re dealing with.

Adam Stirling [00:20:37] Yes.

Michael T. Mulligan [00:20:38] And in some cases, that can be clear. So you owe a duty of care, this is without no fault, not to crash your car into other people that are driving or to run down pedestrians or people on their bikes. You would very clearly owe them a duty of care. Right. But the idea behind having this concept of a duty of care means that you don’t have a duty to like everyone on the planet.

Adam Stirling [00:21:01] Yeah.

Michael T. Mulligan [00:21:02] You could not sue somebody saying, for example, hey, you’re driving a big car that’s putting out emissions and that could impact on the temperature in Botswana. You would not owe, as a matter of law, a duty of care to the person in Botswana, the view would be it’s too remote. Right. Otherwise, you would have litigation over every possible thing about. You know, I’m saddened by your decision to paint your house blue. I like red and I have to drive past it. And so, I’m saddened and depressed by your house colour. You don’t owe me a duty of care to paint your house in a colour that I like. Right.

Adam Stirling [00:21:36] Yeah.

Michael T. Mulligan [00:21:36] So one of the ideas there is there needs to be enough proximity so that we don’t have litigation over the absolutely remote impact somebody might have on somebody. Now, there are some things where the law has, and we have common law. So, things are a collection of decisions over time. There are some duties of care that are clear well-established, like you’ve got a duty of care not to crash your car into me, although maybe not in BC.

Adam Stirling [00:22:00] Yeah.

Michael T. Mulligan [00:22:02] But and there is the possibility of new duties of care being found. It’s not closed and fixed.

Adam Stirling [00:22:08] hmm.

Michael T. Mulligan [00:22:08] Common law evolves.

Adam Stirling [00:22:09] Interesting.

Michael T. Mulligan [00:22:10] So here the judge very carefully analysed all this went on for 21 pages, but ultimately concluded there was such a low likelihood that there would be a new duty of care owed to the emotional well-being of people that like to use the park, such that the park board couldn’t cut down the trees with moths in them. That the claim had a very low prospect of success. And so, in asking for asking for an injunction to stop something from happening, one of the first parts of that is, is there a serious issue to be tried here? Like, could you succeed? It’s not a high threshold, but it is a threshold. And here the judge concluded, well, all these people had a genuine concern, they were all very interested in the park and accepted that you might have an emotional impact of what’s going on. It didn’t meet that duty of care. Unlikely a new one would be established. And so, for that reason, no injunction to stop the moth laided trees from being cut down. And so that’s the end of that. And that’s what duty of care means. And that’s why you can’t just sue anyone you like for something you don’t like that’s going on. So, this latest from Vancouver.

Michael T. Mulligan [00:23:11] Michael Mulligan for Mulligan Defence Lawyers during the second half of our second hour every Thursday, Legally Speaking, on CFAX1070. Michael, a pleasure as always. Thank you.

Michael T. Mulligan [00:23:19] Thank you so much. Always great to be here.

Automatically Transcribed on October 7, 2024 – MULLIGAN DEFENCE LAWYERS