This week on Legally Speaking with Michael Mulligan:
More than 400 people are being prosecuted for criminal contempt arising from alleged breaches of an order from the BC Supreme Court that prohibits people from obstructing logging at Fair Creek.
This has resulted in some logistical issues with large numbers of accused people requiring legal advice prior to entering pleas and fixing dates for trial or sentencing.
Following the Stanley Cup riots, Legal Aid BC developed a mass arrest policy to facilitate the provision of legal advice to large numbers of accused people.
Both the initial court appearances and the provision of summary legal advice are occurring by phone or video connection because of COVID.
For accused people who qualify for legal aid, Legal Aid BC has suspended choice of counsel and is assigning cases to one of a team of lawyers who are defending groups of people, based on the day they were arrested.
The Rainforest Flying Squad has apparently been using donated money to pay for lawyers only for accused people who are black, indigenous, or people of colour. Other accused people, who can’t afford a lawyer, are being left to seek help from Legal Aid BC.
Trial dates are being set for 5 days each and will be comprised of all the people arrested on each day. This will permit common evidence concerning what occurred each day to be heard by the judge once for the relevant group of accused people.
In BC there are a substantial number of prior criminal contempt sentencing cases because of previous unlawful protest activity. Based on factors that influenced prior cases, Crown Counsel has developed a formula for what kind of sentences they will ask for if an accused person pleads guilty.
While the judge will ultimately decide what sentence to impose if someone pleads guilty, the Crown sentencing position is determined by factors including:
1)When the person engaged in criminal contempt. In this regard, previous cases have made clear that sentences are to increase over time until compliance is achieved.
2)When someone pleads guilty. In this regard, the Crown’s position on sentence increases as time passes to encourage people to plead guilty earlier. There may be some issue with the approach being taken by Crown in this regard because the rate at which their suggested sentence increases is more than what courts would ordinarily engage in.
3)Whether the person used a device to avoid being removed from the road and how complex the device was. Earlier cases have indicated this is a factor in sentencing.
While, in the past, protests that have constituted criminal contempt largely people standing passively on the road, 84% of the Fairy Creek accused were using devices of various kinds to make their removal more difficult for police. This has resulted in the Crown seeking jail sentences for many more accused.
Many of the accused people have been surprised to learn that they may be facing jail sentences as they were led to believe this wouldn’t be the case.
Also on the show, a defamation case, from Port Alberni, is discussed. The case involved the director of a non-profit literacy society defaming two employees of a non-profit society that assists homeless people.
After being served with notice of the civil claim, the defendant director only appeared in court briefly, once, and didn’t otherwise show up or hire a lawyer to defend the case. This resulted in a $345,000 judgment.
The defendant non-profit society was unsuccessful in its application to set aside the judgment.
An automated transcript of the show:
Legally Speaking Feb 17, 2022
Adam Stirling [00:00:00] It’s time to talk with Michael Mulligan, Legally Speaking, Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Always good to be here.
Adam Stirling [00:00:08] Absolutely. Civil disobedience offences. You and I have had any number of discussions about this over the last year and a half, certainly relevant with what we’re seeing in our nation’s capital as well as other active proceedings. Where do we start today?
Michael T. Mulligan [00:00:23] Well, you’re quite right. I expect we’re going to be seeing more of these. And I wanted to talk about some of the background in terms of what’s going on right now in terms of prosecuting people for criminal contempt for activity involving blockages at Fairy Creek. Because those prosecutions are now underway and we are likely to see other ones related to matters, including what’s been going on with the truckers in Ottawa and elsewhere. And so, the Fairy Creek prosecutions are interesting. There now, something in excess of four hundred people who are charged with criminal contempt, and those matters are now being worked through the court process. And the way that’s happening is interesting and different from how other offences might be prosecuted in court, dealing with a smaller number of individuals. And so, what’s been happening, is that there have been these mass first appearance lists created in the Supreme Court in Nanaimo, with, in some cases more than one hundred people all having to appear to begin the criminal contempt process. That’s been made more challenging because of COVID.
Adam Stirling [00:01:43] mm=hmm.
Michael T. Mulligan [00:01:43] And so it’s not a matter of a hundred and something people a day showing up physically at the courthouse. You’ve got all of these people appearing virtually right by most teams or telephone or whatever, has been arranged. And so that has created challenges in terms of keeping the matters on track. And the way they’re being approached is the Crown is seeking to prosecute the people, essentially in groups of five or ten people each, based on the date that they were arrested.
Adam Stirling [00:02:17] hmm.
Michael T. Mulligan [00:02:17] And what their intentions do, or to schedule trials each for a period of five days, just back-to-back, with the group of people who were arrested on each day. And that’s not unusual in the sense that the criminal law often contemplates people who are charged with a similar offence or offence, where the evidence would be common to try them together as a matter of efficiency. And so, the idea is that, look, if you’re going to have, you know, five or ten police officers come and testify about what they did on a particular day, much of that is going to be common for the group of people who were arrested on that day. So that’s the theory of it. And so, trials are being scheduled essentially back-to-back, in five-day increments, with little gaps all the way through to August of 2023. There are a lot of people to be dealt.
Adam Stirling [00:03:10] wow, yeah.
Michael T. Mulligan [00:03:10] and then that’s creating other issues. For example, many of the people who were involved with it don’t have much experience in terms of how the criminal justice system operates. And so legally, BC, developed back at the time of the Stanley Cup riots, what they described as a mass arrest policy, which is designed to provide a means for a sort of summary advice, at least to hundreds of people who were arrested at the same time. And an interesting part of that background is apparently the people who were charged in the Stanley Cup riot and indeed the Trans Mountain Pipeline contempt proceedings had money, many of them.
Adam Stirling [00:03:54] Yeah.
Michael T. Mulligan [00:03:54] Maybe that’s a function of what it costs to go to a hockey game these days. I’m not sure.
Adam Stirling [00:03:59] Well, you know, it can’t be cheap, especially if it’s a Stanley Cup playoffs.
Michael T. Mulligan [00:04:03] No, that’s right. If you’ve managed to get a hockey ticket to the Stanley Cup playoffs, probably you’re not eligible for legal aid coverage.
Adam Stirling [00:04:09] Indeed.
Michael T. Mulligan [00:04:10] And so in those cases, it didn’t turn out to be a large number of people who couldn’t afford counsel. But it doesn’t appear to be the case in the Fairy Creek context, where now there have been apparently, the status is a 266 people have applied for some form of legal aid assistance: everything from a lawyer to just some summary advice. So Legal Aid BC is trying to provide, at the very least sort of an hour or something on a telephone with a lawyer to explain the process. So, the person can decide if they’re pleading guilty or not guilty just to sort of keep the thing moving. And then what Legal Aid BC has decided to do is because there are so many people involved, they have suspended what they ordinarily would permit, which is people to try to retain any lawyer who would be prepared to act for them on legal aid rates.
Adam Stirling [00:05:03] Mm-Hmm.
Michael T. Mulligan [00:05:03] And so instead, Legal Aid B.C. has hired a team of 13 or 14 lawyers who are prepared to act on legal aid rates and for people who are financially eligible, they’ll give them sort of that hour on the telephone. And then if they’re proceeding, they will assign them to one of the lawyers. So, you would have a lawyer assigned to you if you were financially eligible. The Rainforest Flying Squad, for their part.
Adam Stirling [00:05:30] yes.
Michael T. Mulligan [00:05:31] Apparently has some form of a legal coordinator. They’ve, of course, been soliciting donations, and it appears what they are doing is covering paying for legal defences for people based on their background in terms of somebody is black, person of colour or indigenous, the Rainforest Flying Squad may choose to pay for their lawyer.
Adam Stirling [00:05:53] hmm.
Michael T. Mulligan [00:05:53] But apparently for others they’re not.
Adam Stirling [00:05:55] Oh.
Michael T. Mulligan [00:05:55] And so you wind up with this circumstance where some of the people can afford counsel, some, based on their background, may be getting counsel paid for by the Rainforest Flying Squad.
Adam Stirling [00:06:07] yeah.
Michael T. Mulligan [00:06:07] Or other people who don’t have any money and would be eligible for legal aid and that threshold in BC is extremely low because of the really limited budget of Legal Aid BC.
Adam Stirling [00:06:20] Yeah.
Michael T. Mulligan [00:06:21] Essentially, if you have a full-time job at minimum wage, you’re too rich to get legal aid coverage.
Adam Stirling [00:06:26] Yeah.
Michael T. Mulligan [00:06:27] And so that’s what’s been happening there.
Adam Stirling [00:06:30] Interesting.
Michael T. Mulligan [00:06:31] The other thing which has taken place is that the provincial crown, who’s doing the prosecutions of these matters and we’ve talked about some of that tension that’s been going on in terms of the court “inviting” crown counsel to take over the criminal contempt prosecutions.
Adam Stirling [00:06:50] Yes.
Michael T. Mulligan [00:06:50] The Crown is prosecuting these cases. And so, the Crown has developed the formula or grid of sentencing positions in these cases. And what that means is this, the crown doesn’t decide what sentence a person would receive. Ultimately, that’s a decision for a judge, not a prosecutor. But the prosecutor’s position on sentence might be given some significant consideration. Right.
Adam Stirling [00:07:19] mm-hmm.
Adam Stirling [00:07:19] And if there was agreement with defence, then given there’s even a higher bar for a judge to depart from a sentence that’s agreed to.
Adam Stirling [00:07:26] make sense. Yeah.
Michael T. Mulligan [00:07:27] And so because there are so many people and in BC, we’ve developed, unfortunately, a lot of law surrounding how do we sentence people for criminal contempt and much more difficult back to like we’ve got a Court of Appeal decision coming back to, MacMillan Bloedel.
Adam Stirling [00:07:45] Yep.
Michael T. Mulligan [00:07:46] Clayoquot sound cases
Adam Stirling [00:07:46] yep.
Michael T. Mulligan [00:07:47] Trans Mountain Pipeline and there’s a pile of lore surrounding it. And so, the crown, looking at all that has tried to develop a sentencing position, taking into account some of the principles from those previous cases.
Adam Stirling [00:08:01] Interesting.
Michael T. Mulligan [00:08:03] Now that’s interesting as well. I mean, this is a sort of one of the key lines from the BC court of appeal from back in 1994 dealing with the MacMillan Bloedel circumstance. And it says, you know, talks about some of the people who were appealing their sentence to the Court of Appeal, having apologized to the court for embarrassment or inconvenience, but pointing out that a breach of the court order is not a crime against the judge and it’s not a matter of inconvenience. But it in fact is, and the language, is an attack upon the institution itself, which is an institution that stands between the rule of law and anarchy.
Adam Stirling [00:08:40] hmm.
Michael T. Mulligan [00:08:40] And so it’s not a matter of just look, I’m apologizing to being, you know, an inconvenience for Judge X, it’s not Judge X that we’re concerned about. It’s the long-term effect on the rule of law.
Adam Stirling [00:08:52] Yes.
Michael T. Mulligan [00:08:52] And what that means, if people are just not following the law when they don’t like it. And so, there’s this mountain of law now surrounding how sentences are to be determined. And so, the Crown’s sentencing position and we tried to formalize it, it sounds like, because there are just so many people have been dealt with here, involves a consideration of things like: when did the contempt allegedly occur? And the idea there, and this comes out of those cases as well, is that there are people who continue to engage in criminal contempt, when it’s been made clear you can’t do this, the sentences are to ramp up. Right.
Adam Stirling [00:09:31] yes.
Michael T. Mulligan [00:09:31] And so people who engage in the conduct later may be subject to a longer sentence. And somebody who did it at the outset before there was a clear message that, hey, this is going to be a criminal contempt, not just some civil contempt trying to get you in compliance with the order. And then the other interesting thing that is developed based on these previous cases, including the Trans Mountain Pipeline, is that there is a line of authority dealing with the use of and the complexity of devices used by people to, you know, glue themselves to the ground.
Adam Stirling [00:10:04] Sleeping dragons. Yeah.
Michael T. Mulligan [00:10:06] Sleeping dragons or tripods or various things. And there’s been a change in terms of the use of those things, and it’s apparent when you look back at the Clayoquot protests where the court described the protesters there as those who blocked the road each day did so peacefully and passively.
Adam Stirling [00:10:23] Yeah.
Michael T. Mulligan [00:10:23] And other people stood by and saying. Right. And now that’s developed to people with sleeping dragons and tubes of crazy glue and people building pylons and all sorts of stuff.
Adam Stirling [00:10:34] Yeah.
Michael T. Mulligan [00:10:35] And there’s authority for the proposition that doing those things significantly increases the appropriate range of sentence. This isn’t just somebody who’s, you know, stood out on the road singing a song.
Adam Stirling [00:10:47] No.
Michael T. Mulligan [00:10:47] You’re somebody who’s planned this. You’ve brought equipment. You’ve made yourself difficult to remove that sort of as an indication of right sort of planning and, you know, contemptuous behaviour, which is deserving of greater punishment. And so, one of the steps is that in the Trans Mountain Pipeline case, only 1% of the people charged use any form of device at all to make themselves more difficult to remove.
Adam Stirling [00:11:12] Mm hmm.
Michael T. Mulligan [00:11:12] Whereas in Fairy Creek, the percentages 84%.
Adam Stirling [00:11:16] Wow.
Michael T. Mulligan [00:11:17] And what that’s led to are is the crown taking sentencing positions that are in accordance with previous authority where that was considered to be a significant aggravating factor. Right. You’re not the, you know, grandma on the road singing Kumbaya. You’re somebody who’s, you know, encased yourself in concrete and tied yourself up on a pole so the police have to spend an hour chopping you down and dragging you away.
Adam Stirling [00:11:43] Yeah.
Michael T. Mulligan [00:11:44] And so what that’s meant is that many of the sentencing positions that the Crown is articulated reflect that law that’s developed in terms of that being an aggravating factor. And as well, the courts have said that complex devices are to be viewed sort of as a more serious thing is more planning and more difficult to remove. Takes more time. Right?
Adam Stirling [00:12:06] Yeah.
Michael T. Mulligan [00:12:07] Then some simple device. And so, for example, somebody who, you know, tied themselves with a piece of rope to a tree or something might be dealt with differently than somebody who shows up with the, you know, some kind of a contraption that makes it much more difficult to get them out of there. And so that can then lead to issues about was this a simple device or a complex device? How long does it take the person telling to take the police to extract you? And you know, some of the accused would be saying, well, hold on, you know, this was some inexperienced officer who wasn’t familiar with, you know, the extraction. So, it’s your
Adam Stirling [00:12:40] first time, yeah
Michael T. Mulligan [00:12:41] it’s your first time disassembling the tripod. And then the Crown has also taken a position whereby their sentencing position would differ depending on when somebody pled guilty.
Adam Stirling [00:12:55] huh.
Michael T. Mulligan [00:12:55] The idea being they would have sounds like, in most cases, three different positions, like if you plead guilty within a number of days of getting disclosure material, they might say seven days in jail. And if you plead guilty before the trial, 30 days in jail or if you plead guilty after the trial commences, 60 days in jail and in some cases, quite stark differences like in some cases, everything from a fine. If you plead guilty right now to a jail sentence, if you plead guilty or we’re found guilty later, I suspect there may be some consideration given to whether there should be quite that much disparity.
Adam Stirling [00:13:34] Yeah.
Michael T. Mulligan [00:13:35] And no doubt the Crown is taking these positions again, looking at all of this authority from other cases that have gone before it. And I should say there is, it’s legitimate for there to be a reduction in sentence for somebody who chooses to plead guilty at an early stage.
Adam Stirling [00:13:52] Yes.
Michael T. Mulligan [00:13:52] Because it shows remorse, and you know, there could be some consideration of, you know, saving of resources. But ordinarily you might see a reduction of, you know, a third, for example. There’s not a mathematical proposition.
Adam Stirling [00:14:06] Yeah.
Michael T. Mulligan [00:14:06] But it’s not ordinarily the case that if somebody pled guilty, they might get seven days and you might go to jail for quadruple that. If you had a trial, yeah, or plead guilty later. There may be some issue about whether the disparity between the sentences is, or at least the crown sentencing position is an appropriate approach. But again, they’re trying to base it on these previous cases. And of course, the Crown is motivated by trying to reduce this sort of pig in the python right, of four hundred people, all waiting for trial.
Adam Stirling [00:14:40] Yeah.
Michael T. Mulligan [00:14:40] And so you wind up with sentencing positions around sentencing positions range from, in some cases, a $500 fine, something like that or probation. Those might be people at the early end before the matter was sort of turned into a criminal contempt prosecution for everyone. To sentences of 90 days in jail or more. And apparently, many of the people involved were startled to find out that they were going to be potentially subject, you know, jail sentences of some significant length.
Adam Stirling [00:15:14] Yeah.
Michael T. Mulligan [00:15:14] The sort of message being spread apparently in the woods, maybe by the Rainforest Flying Squad people didn’t include the warning on the package that, hey, you might be going to jail for a few months.
Adam Stirling [00:15:27] Yeah.
Michael T. Mulligan [00:15:28] And so many of the people apparently are startled to find out that this may not be some rap on the knuckles. It may be a significant period of time in jail, which for somebody with a previous record, may be a rude awakening. And you can imagine if somebody couldn’t go to their job for three months and you might have people losing their housing and employment or if they have it as a as a result. And so I think many of the people that are now finding out how the criminal justice system treats criminal contempt, bearing in mind that it’s not simply a matter of causing some inconvenience to a judge, nor is it sort of treated like some other offence might be, like if you had a person with no record who, I don’t know, committed mischief.
Adam Stirling [00:16:15] yeah.
Michael T. Mulligan [00:16:15] And broke something you’re probably not starting off with, well, we need to send them to jail for a period of time.
Adam Stirling [00:16:21] No.
Michael T. Mulligan [00:16:22] But criminal contempt is viewed differently because of the need to not only deter the individual, but to generally deter other people from continuing to behave in that conduct.
Adam Stirling [00:16:34] Yeah.
Michael T. Mulligan [00:16:35] That is to say, in breach of a court order. And it is clear that the court will simply increase again and again and again the sentences being imposed until compliance is achieved because not doing so amounts to an acknowledgement of anarchy.
Adam Stirling [00:16:54] Yeah.
Michael T. Mulligan [00:16:54] Right. And we just do not want to live in a world where you can sort of force your will on the majority if you’re one who would and block something.
Adam Stirling [00:17:04] No.
Michael T. Mulligan [00:17:06] And I guess one of the other messages that really needs to get out there is that protesting is legitimate and encouraged for as part of a healthy democracy. But engaging in a protest or strongly believing something affords you no legal right to break the law or breach a court order.
Adam Stirling [00:17:25] Yeah.
Michael T. Mulligan [00:17:26] And I’ve heard interviews with people who are engaged like in the current blockades in Ottawa, and it’s sort of the message that people seem to be saying, oh, well, you know, I’m protesting, so I’m allowed to block the road. No, you’re not. The fact that your road blockage or your blockage of the logging road or the port or the train line, or whatever it might be as part of an effort to protest something you feel strongly about affords you no authority, additional authority, to do that. If you’re not permitted to block the border crossing, blocking the border crossing because your protesting is no defence. And so, I don’t know that that is clear for people, and it should be. And it’s also very unfortunate if the information being given to people who are, you know, many of them young people asked to engage in this kind of activity, if they are somehow being given the message that all this is going to be dealt with in some lenient fashion or somehow because it’s a protest that’s going to make it okay. Or, you know, don’t worry about it, that is seriously mistaken because the expected sentences are likely to be ever increasing jail sentences.
Adam Stirling [00:18:43] Yeah.
Michael T. Mulligan [00:18:44] And so that’s where people are going to wind up if their method of protest involves breaching a court order.
Adam Stirling [00:18:51] All right.
Michael T. Mulligan [00:18:52] And so I hope people get this so that we don’t have eight hundred people in this circumstance next year
Adam Stirling [00:18:59] And I think things are going to change after Ottawa as well. I need to get our break in. We’re a little late, so we’ll be back in just a moment with, Legally Speaking, Michael Mulligan after this.
Adam Stirling [00:19:07] All right. We’re back on the air here at CFAX 1070 with Michael Mulligan. Michael you and I have three and a half minutes left in our segment today. My apologies. It’s just what you were saying before was so interesting. I was just listening very carefully, and I totally missed our break. So, we’re a little late, but we do have three and a half minutes left.
Michael T. Mulligan [00:19:21] No trouble. Well, I guess there’s a is an unfortunate wealth of lore surrounding civil disobedience and contempt prosecutions in B.C..
Adam Stirling [00:19:30] I was just going to laugh. It’s one of our exports is jurisprudence on civil disobedience.
Michael T. Mulligan [00:19:35] That’s true. We have it, we have it, and we have copious amounts of it. With appellate authority. We have all kinds we can ship with Ontario. They can make good use of it.
Adam Stirling [00:19:44] Absolutely.
Michael T. Mulligan [00:19:46] There is another case I think I can mention in the sort of two and a half minutes remaining.
Adam Stirling [00:19:49] Yeah.
Michael T. Mulligan [00:19:50] It was a case out of Port Alberni. It’s a case involving a claim for defamation brought by the Port Alberni Shelter Society. And a couple of the executive director and another employee there, suing the Literacy Alberni Society and the executive director of that association.
Adam Stirling [00:20:08] hmm.
Michael T. Mulligan [00:20:09] And the background of it is that the executive director and the organization of the Port Alberni Shelter Society allege that the executive director of the Literacy Society had been making defamatory statements about them. Claiming misuse of funds and enriching themselves and causing the opioid crisis all kinds of untrue statements. And so, they sued. And when you sue somebody, you would serve them with the notice that you are suing them. And the notice will include, in no uncertain terms, your obligation to respond to that or else you lose. And in this case, they served the Literacy Society. But Literacy Society when the director showed up. The director showed up once briefly in court and then did nothing to defend the claims. Resulting in a default judgement against the Literacy Society and its director for some $345,000.
Adam Stirling [00:21:00] Wow.
Michael T. Mulligan [00:21:01] And the Literacy Society, both of these are nonprofits, applied to try to set aside that order, claiming that it was somehow a miscarriage of justice. That’s to say the executive or the board of directors directed that that happen, unsuccessfully. And the reason they were unsuccessful in that is that the organization isn’t able to get off the hook because the director in this case failed to do what he should have done, which would be hire a lawyer and show up and defend the thing. And the fact that the executive director of the Literacy Society, who had been making these statements misled the board of directors about what he was doing and claiming that, oh, I’m taking care of this. None of that is a basis to overturn, ultimately the default judgement that was issued. And so, the takeaway message for people is really when you’re served with a notice of this kind of a claim, any claim, don’t stick your head in the ground. If you ostrich the result is going to be in all probability, you lose. And if you come along later and try to overturn your loss, you may well be unsuccessful. And as is apparent in this case, an organization can be responsible for the conduct of its employees. In this case, the director, who was sending out these untrue claims, including using company email. And so, the messages when you’re served with something, you need to respond to it. Ignoring it won’t work, and don’t expect you’ll be able to just fix it later. And so that’s going to be the unfortunate takeaway for the Literacy Society of Port Alberni. They are in hole for a substantial amount of money to the other non-profit as a result of what their director did.
Adam Stirling [00:22:49] Michael Mulligan pleasure as always until next week.
Michael T. Mulligan [00:22:52] Thank you so much. Stay safe.
Adam Stirling [00:22:53] Perfect Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking.
Automatically Transcribed on February 17, 2022 – MULLIGAN DEFENCE LAWYERS