Renowned constitutional lawyer Joe Arvay passed away unexpectedly at the age of 71. Over the course of a remarkable career focused on public interest constitutional litigation he had a profound impact on the lives of many people.
A few of the many cases he was involved with are discussed on the show, ranging from the Little Sisters bookstore case, that dealing with freedom of expression and equality rights to one of his most recent cases involving civil forfeiture of property that might be used, in the future, for criminal activity.
R. v. Henry was a case involving a man wrongfully convicted of 10 sexual offences for which he was designated a dangerous offender and kept in jail for almost 27 years. His wrongful conviction was caused by the Crown not disclosing 30 witness statements that would have undermined already problematic identification evidence, as well as key forensic evidence. The Crown also concealed evidence of another suspect who had been arrested twice in the vicinity of the attacks.
Mr. Arvay was successful in obtaining compensation for Mr. Henry as a constructional remedy, without having to prove that the prosecutor who withheld the evidence acted with malice. Prior to this case, no compensation would have been available unless the wrongfully convicted person was able to provide the Crown was motivated by an improper purpose.
The high threshold was intended to protect prosecutorial discretion over matters such as the decision to prosecute someone or not. The Supreme Court of Canada accepted Mr. Arvay’s argument that there is no discretion concerning the obligation to provide disclosure of evidence once a prosecution is undertaken.
Another notable case discussed on the show is Canada (Attorney General) v. Bedford. In this case, the Supreme Court of Canada struck down several of the prostitution laws that existed at the time. The court accepted that the legal prohibitions made life more dangerous for sex workers by preventing them from taking steps to ensure their safety. This was found to contravene section 7 of the Charter that protects the security of the person.
Carter v. Canada (Attorney General) is also discussed on the show. In this case, the Supreme Court of Canada concluded that the assisted suicide prohibitions were unconstitutional to the extent that they prohibited physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
This case reversed an earlier Supreme Court of Canada decision and is an example of Mr. Arvay not accepting older decision as being immutable. The Supreme Court of Canada agreed that earlier decisions could be revised in two circumstances: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
The final case discussed is one that was ongoing at the time of Mr. Arvay’s death. It involved the British Columbia civil forfeiture legislation which, amongst other things, permitted property to be taken by the government on the basis that it is likely to be used, in the future, for criminal activity.
Mr. Arvay was successful at trial in having these provisions struck down as being unconstitutional. The trial judge used an example of a person being convicted of dangerous driving, serving their sentence, purchasing a new car, and having the government take the new car on the basis that it was likely they would drive dangerously again in the future.
The case is currently before the British Columbia Court of Appeal.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the episode:
Legally Speaking Dec 10, 2020
Adam Stirling [00:00:00] It’s time for Legally Speaking on CFAX 1070, joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:08] I’m doing great. Thanks so much for having me.
[00:00:10] The passing of a man who I have heard described as a giant, a titan of public interest litigation. I think members of the public, Michael Mulligan, would be shocked to find out just how influential Joe Arvay was.
[00:00:24] It’s really remarkable. You know, Mr. Arvay was 71 years of age when he passed away this weekend. He was a force of nature in terms of litigation and litigation, in particular dealing with sort of public interest matters. He had cases that went to the Supreme Court of Canada that go on for pages, and he has had just a major and outsized influence on the sort of public policy in the advancement of the law in Canada now for decades. So, it’s a genuine loss. He was, not only, an excellent lawyer, but a really decent person, right just on a personal level, he was funny and engaging and just a really decent guy. And it caused me to sort of look through and reflect upon some of the cases that he’s dealt with over the years. And I’d like to talk about a few of them.
Adam Stirling [00:01:27] please.
Michael T. Mulligan [00:01:28] One of the themes, I think that sort of became apparent looking at these is that he would advance cases, I think, a person described as sort of 10 years ahead of their time.
Adam Stirling [00:01:40] hmm.
Michael T. Mulligan [00:01:41] And one of the things he was known for is not paying a whole lot of attention to sort of hierarchy and being prepared to sort of going back with new and creative arguments, revisiting things that in some cases people might have thought, well, that’s decided we can’t do anything about that, right.
Adam Stirling [00:01:58] Yes.
Michael T. Mulligan [00:01:58] And the law, by its nature, is incremental and it can wind up being somewhat behind perhaps sort of current times. And it’s interesting looking at some of the arguments he made, and their success, and then looking back on them and now you might look at them and say, well, of course, that’s so.
Adam Stirling [00:02:17] yes
Michael T. Mulligan [00:02:18] But at the time, they were novel and really move the ball in a way that without his efforts, would not have moved in the way that it did. And to give you an example of that and sort of how he advanced things, I think in terms of timeliness, sort of one of the early cases, because we look at with a Little Sisters bookstore case.
Adam Stirling [00:02:40] Yes.
Michael T. Mulligan [00:02:40] Which is a famous one, it involved the border officials screening out books that were intended for a gay and lesbian bookstore in Vancouver and filtering them out on the basis that they were obscene. Now that, in the current context, I think you would look at that’s just sort of, you know, how could that be going on what a ridiculous state of affairs.
Adam Stirling [00:03:02] Hmm.
Michael T. Mulligan [00:03:02] But, you know, when those when that was being litigated now back in 1990. Right.
Adam Stirling [00:03:08] Yeah.
Michael T. Mulligan [00:03:08] That was a, you know, a cutting-edge issue. And so, he he succeeded with that, of course. And, you know, advance the ball in that, I think is a theme. And, you know, many of the sort of more recent cases of people may not be completely familiar with one of those that came to mind. One of the recent ones was a case I think we’ve discussed in some context called Henry. It was a case that involved a man from Vancouver who was wrongly convicted of a series of sexual assaults, and he was wrongly convicted because the crown who was prosecuting him, didn’t disclose to him evidence or statements from witnesses that would have potentially undermined the identification of the person who actually committed these offences, as well as the crown withheld forensic evidence from him at the time. And it resulted in this man being in prison for 27 years. Arvay wound up taking a case suing the provincial government to get compensation for Mr. Henry as a result of these 27 years of wrongful imprisonment. And at the time, the law was that in order to succeed in getting compensation for being wrongly convicted, you would have to establish that there was malice, that sort of the prosecution was, you know, for some, you know, improper purpose. That was sort of an intentional wrongdoing.
Adam Stirling [00:04:44] Yes.
Michael T. Mulligan [00:04:44] And the concept there was you know, there is this is maybe an indication of the general conservative, small c, conservative nature of the the law. The concern was not wanting to interfere with prosecutorial discretion on things like whether to prosecute somebody or not. The view was we didn’t want to have those decisions second guessed in the context of civil litigation.
Adam Stirling [00:05:10] hmm.
Michael T. Mulligan [00:05:10] So there was this really high threshold for getting some compensation. You’d have to prove malice, which suggests the concept of intentionally doing something wrong, right?
Adam Stirling [00:05:20] Yes.
Michael T. Mulligan [00:05:20] But he nonetheless said, looking at a challenge that and one of the arguments he made was that there should be a right to compensation as a constitutional remedy.
Adam Stirling [00:05:29] Hmm
Michael T. Mulligan [00:05:30] And so he took that argument and all the way to the Supreme Court of Canada and he succeeded. And so, the Supreme Court of Canada accepted his argument that the decision about whether to provide disclosure, tell somebody about evidence that shows that they may be innocent is not a matter of discretion. Right, it is not a matter of the crown deciding, you know, do we choose to prosecute this person or not? That being as a matter of crown discretion, once you decide to prosecute somebody, the crown doesn’t have any discretion about providing disclosure of evidence that would allow the person to respond to the charges. Like there’s no choice to be made about whether you tell the person, hey, by the way, there are a bunch of statements that suggest you didn’t do it, right.
Adam Stirling [00:06:22] Yeah.
Michael T. Mulligan [00:06:22] You can’t say I’m prosecuting you, but not telling you about a bunch of evidence that shows that you may be innocent. And so, the Supreme Court of Canada accepted his argument there. And now the law has changed, Mr. Henry, got compensation for it, for his imprisonment; and found that, look, the impugned conduct here of the crown and not telling Mr. Henry about the evidence that showed that he wasn’t the person who did it. That doesn’t require a threshold of malice or intention is just you didn’t do it. You were obliged to do it. And so, Mr. Henry got compensation.
Adam Stirling [00:06:57] hmm.
Michael T. Mulligan [00:06:57] And so that would be a sort of an example of sort of, you know, not accepting the law as it stood at the time,.
Adam Stirling [00:07:03] yeah.
Michael T. Mulligan [00:07:03] Which would suggest that, well, you need to show malice and how are you going to do that and so on and making that kind of an argument and saying, look, I’m just not going to accept that. So, let’s give it a try. And off it went with a compelling argument and it carried the day and the law changed. And other cases of his have a similar theme. There was another case of his that I saw on the list of many.
Adam Stirling [00:07:27] Well, he was one of the litigators in Delgamuukw, wasn’t he?
Michael T. Mulligan [00:07:29] Yes, he was.
Adam Stirling [00:07:30] And that that basically, for the benefit of our audience is the case that found that Aboriginal rights and title had not been extinguished at confederation and still existed under Section 35 of the Constitution Act. All the pipeline arguments that we got involved with in terms of rights and title, he was one of the litigators who established that. It’s incredible.
Michael T. Mulligan [00:07:49] That’s right. And some of that is sort of a matter of saying, look, I’m just not going to accept that that previous decision is binding and nothing more can happen and everything’s immutable. And here it is.
Adam Stirling [00:07:59] wow.
Michael T. Mulligan [00:07:59] You know, his attitude towards many of these things was, well, look, you know, that was 10 years ago. The evidence is different. Let’s give it another shot.
Adam Stirling [00:08:07] hmm.
Michael T. Mulligan [00:08:07] You don’t get a new argument. Let’s try it. Right. Another example, another recent one from the case, Bedford.
Adam Stirling [00:08:14] Yeah,.
Michael T. Mulligan [00:08:15] that’s still having ripples. Bedford was a case that dealt with the constitutionality of the prostitution provisions that used to be in the criminal code. We used to have criminal offences, including communicating for the purpose of prostitution or running a common body house or living off the avails of prostitution.
Adam Stirling [00:08:38] Yes,.
Michael T. Mulligan [00:08:39] And they didn’t criminalize prostitution itself, but they criminalized virtually everything that might go on in order to have that occur, like communicating for the purpose of it.
Adam Stirling [00:08:49] Yes.
Michael T. Mulligan [00:08:49] And you used to have in fact, I remember these days you go down occasionally, I remember doing this when I was relatively new at this.
Adam Stirling [00:08:56] mhmm.
Michael T. Mulligan [00:08:57] You go down on the weekend to help out people that had been arrested as duty counsel.
Adam Stirling [00:09:02] mhmm.
Michael T. Mulligan [00:09:02] And you would have prostitutes who were arrested, and police would go out, do undercover operations, and arrest women often who were out as prostitutes and bring them in and suggest that they be charged with communicating. It would be, you know, undercover officer pulls up to speak to the person through the window of their car and then arrest them and, you know, different crown and different attitudes towards that. Some I recall at the time to said, look, I’m just not prosecuting these women for this, release them. I’m just not charging them. An example of crown discretion. Right. Sort of. Look, I’m just not doing that. But he challenged those laws on the basis that they violated the security of the person of the people who were working as prostitutes. because the effect of those kind of prohibitions meant that there would be steps that a person could take to ensure their safety, which they couldn’t take.
Adam Stirling [00:10:00] Yes.
Michael T. Mulligan [00:10:00] Like, you know, you wouldn’t be able to, you know, do things that might improve your safety, you couldn’t hire a security person to help you. You would have to sort of operate in the shadows, all of which would make prostitutes more vulnerable than they already are. And the Supreme Court of Canada accepted that argument. And that was also interesting because there had been a previous reference to the Supreme Court of Canada about the constitutionality of those provisions. And so, somebody might have looked at that and said, well, you know, this doesn’t have any hope. But he pressed on, he had new arguments and they succeeded. And that’s still having ripples. The conservative government at the time tried to, effectively replace the prohibitions by different forms of prohibitions, making it an offence to purchase sexual services, and making it an offence to advertise sexual services, and made it. They tried to decriminalize it by casting it in a different way.
Adam Stirling [00:11:04] Yes.
Michael T. Mulligan [00:11:05] And those efforts are now continuing to be challenged. There was just a decision in Ontario that found that various of those new provisions were also unconstitutional because they continued to have the sort of effect that the Supreme Court of Canada referred to in Bedford, by effectively making it more dangerous for people who are already engaged in dangerous work, forcing that sort of thing underground. And so that’s another example, I think, of saying, look, I’m not going to accept the status quo and I’m going to push, and the pushing moved the ball in a way that, you know, was, I think, perhaps ahead of its time, right?
Adam Stirling [00:11:50] Yeah.
Michael T. Mulligan [00:11:51] You know, I think these are the attitudes sort of social attitudes often are in the law, often trails social attitudes towards things. Right.
Adam Stirling [00:11:59] Yeah
Michael T. Mulligan [00:12:00] And the law, for example, surrounding prostitution, there’s cannot be a consistent view on these things. But, you know, there I think perhaps the law often reflects a more conservative view of things as societal attitudes change over time.
Adam Stirling [00:12:16] Yeah.
Michael T. Mulligan [00:12:16] And so a number of these cases demonstrate pushing against some of that inherent conservatism in the law. Another one of those is a case called Carter. Carter is the case involving physician assisted dying.
Adam Stirling [00:12:34] Yes.
Michael T. Mulligan [00:12:35] And that was yet another example of pushing against laws which would have sort of appeared to be decided. Right. We, of course, from Victoria had the Sue Rodriguez case,.
Adam Stirling [00:12:50] Yes.
Michael T. Mulligan [00:12:51] Which went to the Supreme Court of Canada, which found that the laws that prohibited assisted that prohibited assisted suicide were constitutional. So, some might have looked at it and say, well, this is just decided. What am I going to do with that? Right. But he didn’t accept that. And he pushed against it and led different evidence and maybe made other arguments. And that when the Supreme Court of Canada pointed out and of course, he succeeded. And the Supreme Court of Canada pointed out that, judges are entitled to revisit previous decisions where there are one of two possible grounds, either where there are new legal issues raised over there or there’s a change in circumstances with respect to the evidence that fundamentally shifts the parameters of the debate. And they found both of those things were met. And so, they came to a different conclusion, than in the case only a few years earlier. And so, it’s another example of, look, just pushing against that, not accepting that that previous decision is immutable and cannot be changed. Another thing which came from that case, which I think is a very important one, and others, he’s argued this in various different ways. Carter is the concept of asking for special costs or costs to be awarded in advance. Many of these cases, he would take on for free, and litigate them often all the way to the Supreme Court of Canada.
Adam Stirling [00:14:24] Yes.
Michael T. Mulligan [00:14:24] And one of the arguments which he made in various ways was that there should be, in this kind of public interest litigation. Right. You know that Carter, the Bedford case, or this, you know, the right to Carter, was that in cases where the sort of the plaintiff is really taking on a big social argument like this, where they don’t have some personal financial stake in the outcome, there should be provisions made to provide costs and sometimes even costs in advance. And that’s another thing which the Supreme Court of Canada has accepted that in some circumstances that should be so. You shouldn’t say to the person who’s, you know, suffering and trying to get physician assistance with dying to say, well, if you wish to make that argument, you’re going to cover the costs of, you know, tens of thousands of dollars to head off to the Supreme Court of Canada or rely upon somebody of goodwill to do it for you for free. In appropriate cases, there can and should be, and will be, arguments that the costs are going to be paid for by the government in order to allow that kind of public interest litigation to go on. And so that’s another thing which he has advanced the ball on, which will have effects for many years to come, because as you might imagine, you know, the tiny bookstore or you know, the persons who is the sex worker, or the person who is trying to get physician assistants with death, is not likely to have the money to, you know, litigate these things where the government has endless resources to resist them and resist they do. So that’s, I think, another big thing, which he’s really made a major difference in over his career.
Adam Stirling [00:16:16] A little bit late for our break, but I didn’t want to interrupt that because I think it’s very important. I want to take a quick break, though, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers will continue right after this.
Adam Stirling [00:16:26] We continue with legally speaking on CFAX 1070 Michael Mulligan. Michael, I’ve got a question on the text messages that I’m sure you’ll be able to answer. Somebody is asking me why I’m calling you a Barrister and Solicitor and how is that different from a lawyer?
Michael T. Mulligan [00:16:40] No, that’s a good question, actually. So, the history of that, of course, in the, we take our legal tradition from the UK. And there they have a divided bar, which means that you would have people who are solicitors and other people who are barristers. And if you were going to be litigating something, a case was going to go to court, you know, person would go and hire a solicitor. The solicitor would prepare the case, do the research, and put together a brief. And then for the purpose of actually going to court and making the argument, other than through a very low-level courts, the solicitor would retain a barrister to go in and make the oral argument. The solicitor would prepare the brief, hire the barrister, deliver the brief to the barrister. The barrister’s role would be simply go into court and make the argument. I must say I’m rather envious of that from the perspective of somebody who does spend their time in court. That’s what I in fact, do. The idea of having somebody else preparing a nice brief with a ribbon around it sounds pretty appealing. That that’s the history of the legal profession, but the in British Columbia, I guess the colonies generally, the reality was that there weren’t enough people who were lawyers to have a divided bar like that. And so, barristers and solicitors, basically, it’s everyone’s doing both. That’s really what that where that comes from. And so, you don’t have an even though as a matter of practice, there would be lawyers now who would not go to court, like most lawyers don’t spend their time in court arguing about things. Most lawyers, in fact, are solicitors.
Adam Stirling [00:18:23] Yes.
[00:18:23] Who are preparing contracts, agreements and so on. That’s much of what the legal profession does. Those of us who go to court are often in the civil context, fighting when those things go wrong. But we don’t have a circumstance where there’s a formal division in the bar between people who are solicitors and people who are barristers. And so, everyone in British Columbia who is a lawyer would be both a barrister and solicitor. Right.
Adam Stirling [00:18:49] Yes.
Michael T. Mulligan [00:18:49] They would be entitled to go to court or do solicitors work, even though now there is, practically speaking, a division between those responsibilities. We still don’t have what continues to exist in the UK, which would be, you know, a person off the street couldn’t go in and just hire a barrister to go in and make an argument. You would hire a solicitor, they would prepare the case, give it to the barrister who would just go into court and make the argument. One of the arguments for that model, is that you might have some additional sort of independent, additional not independence, but objectivity from the barristers who are going into court. The Person might say, look, you your brief for the crown or are in for the defence, you know, whatever I’m retained to do, off I go.
Adam Stirling [00:19:33] Hmm.
Michael T. Mulligan [00:19:33] But not so in British Columbia. So, I’m carefully preparing all my own files.
Adam Stirling [00:19:38] Oh, there we go. Now we know. Thank you very much. I appreciate it, because I have people ask me from time to time, they don’t know what those words mean. They see them on signs from time to time with legal services agencies, but they don’t understand the distinction. So, thank you.
Michael T. Mulligan [00:19:50] Yeah. So maybe sort of if we have.
Adam Stirling [00:19:54]. Three minutes
Michael T. Mulligan [00:19:54] A three minute three minutes to the end, one of the cases, Mr. Arvay, case that’s ongoing may be another example of moving the ball, the ball. One of the cases he’s currently was in the process, was a case litigating the constitutionality of some of the provisions of the civil forfeiture law in British Columbia. The civil forfeiture law for people that are familiar with it is the idea that the government can take property that might be associated with criminal activity without necessarily ever having a criminal conviction. And the government likes it because the standard of proof is, probably like that’s what standard (indiscernible).
Adam Stirling [00:20:35] Okay.
Michael T. Mulligan [00:20:36] Rather than proof beyond a reasonable doubt. And ordinary criminal protections like the right to remain silent and so on, don’t apply. And so, the government likes it as a way to try to get, get at sort of money or the proceeds of what they believe to be criminal activity. The law, however, is extremely broad and there’s been much criticism of how it’s been used. And so, Joe Arvay took on a case on behalf of the Hells Angels.
Adam Stirling [00:21:05] Yes.
Michael T. Mulligan [00:21:05] And the provincial government, the civil forfeiture people, were trying to utilize a controversial portion of that civil forfeiture law, that allows for the forfeiture of property that could be used in the future for criminal activity. Not even that it was you.
Adam Stirling [00:21:24] Wow. I didn’t know that existed.
Michael T. Mulligan [00:21:26] Well, currently was found to be unconstitutional.
Adam Stirling [00:21:29] Alight.
Michael T. Mulligan [00:21:29] Thanks to Joe Arvay. and one of the lines that the, so that’s why, how they were trying to take these Hells Angels clubhouses, is not say that they were used for any criminal activity, but that they might be used in the future for some criminal activity.
Adam Stirling [00:21:42] Wow.
Michael T. Mulligan [00:21:42] And one of the lines the judge, trial judge used in finding that to be unconstitutional, he gave the example of, well, it would be like, for example, a person who’s convicted of dangerous driving serves their sentence and then the government decides to go and seize their new car on the basis that they might use it in the future to engage in dangerous driving.
Adam Stirling [00:22:00] Yeah, it doesn’t feel right.
Michael T. Mulligan [00:22:02] So that was found to be unconstitutional. The government, of course, doesn’t like that outcome and is appealing it, currently to the B.C. Court of Appeal. And interestingly, looking at that, the factums on that case are going to be filed tomorrow.
Adam Stirling [00:22:16] Oh.
Michael T. Mulligan [00:22:17] And so hopefully Mr. Arvay had a chance to get a fact and filed in advance. No doubt other counsel in that case will carry on. But, you know, that’s another example of Mr. Arvay moving the ball in a way that would be generally consistent with, you know, liberty and so on and resisting in that case sort of the government potential, what looks, to me like, overreach, trying to seize things that you, might in the future use for some criminal activity, even though you weren’t convicted of any. And they don’t try to prove that you even used it in that way in the past. And so, the government’s trying its best to overturn that trial decision in the Court of Appeal. And that may be one more in Mr. Arvay’s a long legacy of really important decisions.
Adam Stirling [00:23:09] Michael Mulligan, we’re all out of time, but thank you, as always, for the benefit of your knowledge and insight. We greatly appreciate it.
Michael T. Mulligan [00:23:14] Always a pleasure. Thank you so much.
Adam Stirling [00:23:16] Talk to you next week, bye now
Automatically Transcribed on December 10, 2020 – MULLIGAN DEFENCE LAWYERS