Jury deliberations and Special Costs in a disability income case

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070

Issues discussed include jury deliberations, sequestration, the fact that the substance of jury deliberations are secret in Canada, what information is included in a charge to the jury, information not provided to the jury, including the possible sentence if there is a conviction, and how judges deal with jury questions or cases where a jury is unable to arrive at a unanimous verdict.

Also discussed is a recent test case from the British Columbia Court of Appeal: Tanious v. The Empire Life Insurance Company. This case dealt with a successful claim for disability insurance benefits, and the circumstances in which special costs can be awarded. Special costs, as distinct from party and party costs, represent the actual legal costs incurred by a party to a claim. The Court of Appeal upheld the trial judge, who awarded special costs on the basis that it was in the interest of justice for the institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim.

Note: On October 3 and 10, Legally Speaking will be live on CFAX 1070 at 11:00 am, rather than the regularly scheduled time of 10:30 am.


Automatically Transcribed on September 26, 2019 – MULLIGAN DEFENCE LAWYERS


Adam Stirling [00:00:00] It’s time for Legally Speaking on Thursday at CFAX 1070, Michael Mulligan joining us as always, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, a pleasure. Good morning.

Michael Mulligan [00:00:09] Good morning. Great to be here.

Adam Stirling [00:00:10] Lots to talk about this week including; lots of talk about what is and is not involved in deliberations of a jury.

Michael Mulligan [00:00:18] Yes.

Adam Stirling [00:00:18] In this criminal trial a rather big one taking place right now as our audience knows.

Michael Mulligan [00:00:22] That’s right. Of course, local, locally significant … the Barry case and the jury is out now, I believe, for the third day. So, I think there are a few things that are worth knowing about how that works, what the jury’s told, and how it…. what occurs after the jury goes out to deliberate. What are they doing? How does that work? So, the first thing to know is that at the end of a trial, and this one went for five months, the judge is required to do what’s called ‘charging the jury’. And the process of ‘charging the jury’ really involves two things: first of all, the judge will summarize the evidence, which itself can be an interesting thing. For example, in a case like this, she would summarize the evidence of the accused. Right. Sometimes in my experience these summarizing of evidence can come across more clearly than the quality of the evidence originally. So that’s something to be sure paid attention to, but that’s one of the tasks of the judge. Another task of the judge is to tell the jury what the law is. And in that regard one of the common instructions a judge will give to the jury is they’ll say look, you’re the judge of the facts your task here is to decide, you know, what evidence you accept and don’t accept what facts, conclusions you come to. But the judge will say I’m the judge of the law, and I’m going to tell you what the law is. And the judge will say it’s important that you follow the law as I lay it out for you, because if I’m the judge and I’m wrong on some point that’s something which the Court of Appeal can correct. As long as you do what I’m asking you to do; if you go off and apply some other interpretation of the law, nobody’s ever going to know about that and there’s no way to fix that problem. Now the reason nobody’s going to know about it is that in Canada jury deliberations are secret. It’s actually a crime to disclose the contents of the deliberations by jury.

Adam Stirling [00:02:09] It’s a crime, not an offence, but a crime.

Michael Mulligan [00:02:12] Ya.

Adam Stirling [00:02:13] Wow, okay.

Michael Mulligan [00:02:13] And that’s different from the U.S. and the U.S. you’ll actually see juries come out and they’ll start being interviewed by the press and they’ll all start working on their book deal and some high-profile case or whatever it might be. And we don’t have that, and I think that’s good. You want people to be able to talk back there and not worry about oh my god, you know that another person on the jury who hated me is going to be blaming me for some outcome rather. The other thing which occurs in this case, and in most cases now, is the judge will give the jury a written copy of the judge’s instructions. And I think that’s healthy because, of course, the law as complicated as we well know and you can hardly imagine what it would be like, if you were on a jury, you’ve never thought about some of these legal concepts before, and somebody in one you know four hour session…

Adam Stirling [00:02:58] and you’re going to remember every element of that.

Michael Mulligan [00:03:00] That’s right. Some …. there are four parts to this test; there are three things you must be concerned with; you can think how that would go. It would be like telling somebody, look you’re going to have one afternoon of law school, now we’re going to ask you to go to a really really important exam, the outcome of which will determine the course of events for somebody’s life. That would be so much fun. So, the judge will ordinarily give the jury a written copy of the instructions so they can go back and reference that, and so back they go to deliberate. When juries go to deliberate almost invariably they are going to be what are what’s called sequestered, which means they are going to be kept together to deliberate they’re not going to be permitted to go and listen to the news or read the newspaper or talk to other people about the case. They will go in as a group in a room, the Sheriff will keep it secure. They will have a copy of the judge’s instructions, they’ll have paper to make their own notes and they’ll have access to the exhibits from the trial itself, and then they’re told to go at it. The jury needs to be unanimous. There is provision made for juries to ask questions and that happens with some frequency. Right, to be a you know some debate about some issue, or some point of law will be unclear. That will usually occur in a written form if the jury has a question. They could write down what the question is, or they could request, for example, the replay of some evidence because everything is recorded. That request would then go out to the judge. Usually the judge would come up with some proposed response. The judge would call in the lawyers and say look this is a question I’ve received, here is my proposed answer What do you each say about that any submissions. Thank you for those. Bring the jury back in. Give the explanation or answer and sometimes that could be absolutely critical because you’ll see decisions come from juries you know half an hour after the answer is given. The written question will be marked as an exhibit and that’s how that works. Juries will deliberate all day long, they take their meals together a Sheriff would take them to a restaurant, they it sits there together have their meal. They’re not permitted to go home at night. They will be put up in a put up in a hotel, so that they’re not being influenced by friends or family or other people talking to them. There’s actually piece out of Vancouver from a number of years ago now where a judge thought the jury was going a little bit long after a few days. And I think the impression was that perhaps they were in it for the free meals and hotel coverage and the judge actually directed that they be moved to UBC and put up in the dorms at night. So that…

Adam Stirling [00:05:30] So the least comfortable accommodations.

Michael Mulligan [00:05:31] That produced, that produced a judgment a bit more quickly. The judge, the jury will be told they’re required to be unanimous right in their decision. Some things a jury are not however told. They’re not told for example, what the sentence would be if there was a conviction. Like they wouldn’t be told, look for a second-degree murder conviction the mandatory sentence is life in prison and there’s some range of parole eligibility. They’re not told that. They were charged on manslaughter. They would not be told what the sentencing range might be for that. So, they know nothing about that. There are some examples like in that Latimer case, the farmer who killed his severely disabled daughter, where after the jury convicted and they were told what the mandatory sentence was life in prison they were aghast and his tears over that outcome.

Adam Stirling [00:06:18] Because that would have prejudiced their findings if they had known.

Michael Mulligan [00:06:21] Yeah. And sentencing is a role for the judge. The jury in a murder case interestingly, there’s this oddball provision where the jury can make a recommendation, non-binding on the judge with respect to parole and eligibility. Another thing they’re not told is that they might at the end of the day be unable to agree on how that’s to work out. The way that plays out usually is if after a few days they just can’t come together with a decision one way or the other. You’ll often see in those cases a note coming to the judge saying we can’t agree, or we are deadlocked 6 to 6 or you know one person will simply not change their opinion. We cannot come to a unanimous verdict. When that happens and you wouldn’t expect that in a case that ran for five months, at least for a few days, because it will take some time just to review, five months’ worth of evidence, and a big thick booklet of instructions, right. And if, however, that comes back some mess like we just can’t do it. The judge would ordinarily begin by giving the jury what’s called an exhortation, which is essentially calling them in and saying look we’ve been at this for five months you’ve heard a lot of evidence. You have to be true to your oath as a juror but, you know listen to your other jurors, please keep an open mind. Please go back and try again. This is a difficult matter for a lot of people. Please go back and try again. And then they would usually, the judge, allow the jury to go back after they’ve been exhorted to come up with a decision. They’d be given some additional time to do it. But if finally, they can’t do it, the mistrial would be declared and then it would be up to the Crown to decide whether to start again or not. But they’re not ordinarily charged at the beginning. Telling them well you might just not agree and that’s an option for you. They’re told you must be unanimous so as to encourage them to come to that point.

Adam Stirling [00:08:10] So you told us in the past there are two conditions that must be met for criminal charges to be brought. One, is there is substantial likelihood of conviction; two, with the bringing of charges be in the public interest. What is the test to bring another trial after a mistrial?

Michael Mulligan [00:08:22] Those would be the same tests that would be applied. But you might imagine how those things could, those judgments might be affected by previous mistrials. Probably not on a second go round. But what happens if you had a 6 to 6 jury couldn’t agree. You try again for another five months the same thing happens. You try again the same thing happens, perhaps at that point, if I ask you the question, Is there a substantial likelihood of conviction? Ee run this evidence two or three times and every time we run it; we cannot get a unanimous jury verdict that might cause that calculation to be changed. The second part of the charge approval threshold is it in the public interest to proceed. There’s going to be a high public interest in trying to get a result in a murder trial. But at some point, you might say look we’ve been at this for two years and three or four times we can’t do it, we’re just packing it in and some combination of those tests. The other thing which can occur is there can be issues about have you had a trial within a reasonable period of time. If you try to retry things that could become even more complicated because now you’ve got witnesses who have testified for example you know two or three times and now you’ve got like multiple previous versions of events, plus they’ve given some other version of events to the police and I’ve got all these different versions so that can make that more complicated. And then there could be other issues about things like the effect of publicity. Right now, you’ve had this thing all over the news, perhaps multiple times, and what impact is that having. So, we’re still at it at a point in the particular case it’s going on now. Where given it’s a five-month trial, we’re not at the stage where anything would be unusual about a jury being out for three days to consider an important case, a mountain of evidence, and complex instructions. But you know it’s a difficult job and I should say this. One of the other benefits that we have from having the jury system not only does it bring community values to the justice system, but even though the jurors can’t come back out and discuss what was said in the jury room, at the end of it you disperse these 12 people back into the community who have had to do that very difficult, perform that very difficult function. And that’s important in and of itself, because when you look at a case from afar and you’re not involved in that sometimes they go, how hard can this be. You know I read some summary of that surely, I could figure this out. But when you’re somebody is actually in the position of no you’ve got to listen to these witnesses. This is the quality of the evidence. This is how high the burden is now going back and decide that. That is a daunting task with a really important outcome. And I think it’s a valuable thing in terms of general confidence in the justice system that you have people doing their civic duty serving on juries and then going back into the community and can report on what how did that go, right. Was that a fair process? You know how was that? What was that experience like? And almost invariably when I speak to people who have served on juries and you don’t ask them of course what was in the jury room, but if you ask a question like how was your experience? How did you find that? Almost invariably the response is a positive one. And I think that’s an important thing as well. So, there’s a there are a lot of a lot of things going on here in terms of the justice system, the community, the two-way feedback about that thing. And we are lucky to have the system that we have and that members of the community can make collectively these important decisions. And I think there’s some magic perhaps or maybe wisdom would be a better way to put it in requiring unanimity amongst a dozen people. Right. If you if you are able to persuade 12, you know regular people, from different backgrounds, of some state of affairs that’s probably a pretty reliable way to do it right.

Adam Stirling [00:12:15] You know it wasn’t the odds or at least one of them would disagree. It’s a fail fast method.

Michael Mulligan [00:12:19] That’s right. If you have sort of one or two people maybe you wind up with outliers in your oddball approaches to things, but if you have 12 people and they all hear it and you can get all of those 12 people to agree on something, that’s an important protection. So, there we are.

Adam Stirling [00:12:33] All right. Let’s take a quick break. Legally Speaking continues in just a moment on CFAX 1070.

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Commercial [00:16:19] You’re listening to Adam Sterling on CFAX 1070

Adam Stirling [00:16:25] Legally Speaking continues, Michael Mulligan with Mulligan Tam and Pearson before we wrap up how jury duty actually works and what happens while a jury is deliberating. I’ve had lawyers tell me in the past, Michael, that anyone with a legal education is effectively banned for life from sitting on a jury because the example of the sentence that would be required from a finding of guilt in a murder trial for example, an ordinary person, like me might not know, but you’d hope somebody with a legal education would know that.

Michael Mulligan [00:16:50] Yeah and I guess the other concern would be what happens if you wind up with somebody with a legal education that doesn’t really know what’s going on. Is wrong.

Adam Stirling [00:16:57] Oh.

Michael Mulligan [00:16:57] But you could also imagine what would happen if you had that person with some trying to sort of take over and tell people what it would be like, oh don’t worry about what that judge told you about this or that, I recall what that was I went to law school 20 years ago this is what the law was. You can easily imagine how that would knock things off kilter. So, lawyers are out. It’s interesting now though that the we’ve just had a change to how jury selection works. And one of the things which happened was removing what are called preemptory challenges, whereas lawyers for those articulating a reason could challenge a prospective juror. That’s now gone by the wayside, although subject to some challenges. So, it’s going to mean that we’re going to have, I guess a more random selection of people winding up on juries, and perhaps some greater scrutiny as to how the panel is arrived at, which has been an issue over time. It’s like Whoa on what basis are you calculating this group of people to bring in. You know have you used the voters list that might exclude certain categories of people who might be less likely to be on the voter’s list. What have you done? And then there’s also an issue I think about people trying to avoid jury service right. Oh, my goodness I have a small business, I’ve got to work, I’ve childcare responsibilities. And one of the other problems, is if you exclude all people with businesses, jobs, children, all kinds of things to do, you end up with a jury panel you can look at them and say well this doesn’t exactly look like the group of people that I would walk by on the street. You end up with a group of retired people or people that work for the government or have you known some ability to leave work without some consequence. So that’s a live issue to.

Adam Stirling [00:18:34] In a test case the B.C. Court of Appeal upheld upholding an award of special costs. What does all that mean?

Michael Mulligan [00:18:43] Yeah, well first of all, I chuckled when I read the name of the defendant in this test case from the Court of Appeal, the defendant is the Empire Life Insurance company versus.

Adam Stirling [00:18:57] The Mom and Pops Insurance Company where the Empire Insurance…

Michael Mulligan [00:18:59] Yeah, the Empire Insurance Company, if you want to take on the role of Goliath you might wish to name your insurance company the Empire Life Insurance company, not the We Care Friendly Home Coverage Company. But there it is, the Empire Insurance Company. So, this case involved that issue that you just mentioned the issue of awarding special costs. And we’ve talked about costs before and the basic concept there is that if you sue somebody and you are a sickly successful party, will ordinarily receive from the party who was successfully sued, the unsuccessful party will have to pay a portion of the legal expenses of the party who sued them. They do that; we have that rule for a number of reasons. One reason is that it encourages settlement. Right. If somebody sues you with very good reason and you know full well you’re going to lose; don’t drag the process out, because in addition to having to pay the money you would have been on the hook for anyways, you’ll also pick up a portion of their legal expenses. Bad idea. It encourages you to sort things out. So that’s one of the reasons, also from a fairness perspective, hey you know if you’re legitimately aggrieved you bring a case that you shouldn’t wind up effectively getting nothing in all of your money that you got went to pay the lawyer that you hired. Right. So that’s why we have it. But ordinarily costs are what are called party and party costs. And what that language really means is that you’re going to get a portion of what your actual legal expenses would be. You don’t just turn…you don’t just hand in your lawyer’s bill and you get a check from the other side. The reason we ordinarily have done on that basis is that, if you had somebody have to pay the full legal expenses, it might actually deter people from engaging in the legal process for fear of winding up with an actual giant bill. Let’s say the other side hires you know some high-powered expensive law firm to defend them…

Adam Stirling [00:20:53] drop a couple of Q. C’s into that.

Michael Mulligan [00:20:54] Yeah.

Adam Stirling [00:20:55] Yeah. Okay.

Michael Mulligan [00:20:55] You may think ‘oh my goodness’ I can’t carry on if I lose it’s going to ruin me. So, we have sort of a balancing. But judges have discretion to award what are called special costs. Those used to be known as solicitor client costs. And the idea of that would be now the other side has to pay the actual legal bill. Right. You get all of it reimbursed. And ordinarily those sort of that solicitor client or special legal costs would be used in cases where, for example, a party is engaged in some egregious conduct in the course of litigation, like somebody took the approach that you sued me with some meritorious claim, but I’ve just done everything in my power to drag this out bring a bunch of unnecessary applications, stymie everything, run up your expenses trying to grind you down. That’s the kind of conduct which would ordinarily produce the judge saying, look you’re going to pay the actual costs you engaged in really abusive behaviour in the course of the litigation. The case that just came out from the Court of Appeal was a test case. It was actually the lawyer for the person the appeal was Joe Arvay who’s a luminary in the legal community.

Adam Stirling [00:22:04] Yes, he is.

Michael Mulligan [00:22:05] And the issue is this the person making the claim against the Empire Life Insurance Company, was thinking a disability insurance claim. She had a job. She was diagnosed with M.S. Then she wound up using drugs in response to getting M.S. and her doctor eventually said she was unable to work due to anxiety and depression flowing from the M.S. until further notice. She had this disability insurance, which was supposed to pay her $2,084 a month. But the Empire Life Insurance Company said no we’re not paying. And so, she wound up going on C.P.P. disability benefits for $1,000 bucks a month well below the poverty line. So, she brought this claim to get her disability insurance paid. She was able to find a lawyer who specialized in doing that work and expend years pursuing this claim and it was for years the lawyer incurred fifty thousand dollars in disbursements, charged a small fraction of what their going rate would be to help this person out pursue the claim and won.

Adam Stirling [00:23:10] Yes.

Michael Mulligan [00:23:11] And so there is an award for $66,000 in past benefits and aggravated damages and Empire Insurance was told start paying the disability benefits. Well then came this issue of costs. And the lawyer didn’t claim that Empire Insurance had engaged in that kind of egregious conduct, like drawing the case out or making baseless applications just to grind down the other party. But they made instead the application that, all of the legal fees ought to be paid, because that would be necessary in the interests of justice. Right. It’s only fair that this person who would receive only this modest amount for disability coverage and is disabled and unable to work, saying look she should get her full costs paid the full…

Adam Stirling [00:23:56] Yeah. I find that to be very appropriate. I’m glad that that was the case.

Michael Mulligan [00:23:59] And the judge did it. The insurance company appealed; Empire Insurance company given that they’re a large empire. They appealed to the Court of Appeal and they lost. Arvay was successful there. The Court of Appeal found that they went through that analysis we talked about, about look you want to deter litigate litigation, you don’t want to have crushing costs, but found that in cases like this, particularly these kind of disability claims, we’ve got somebody who’s going to be impoverished trying to bring a claim against a large insurance company for disability benefits and in a fact pattern like this where otherwise it’s going to mean that this person who is disabled receiving this modest amount of money, would wind up paying a substantial portion of their legal fees, legal expenses from that modest award. That justice required that the Empire Insurance Company, pay the actual, although modest, legal fees charged by the lawyer who pursued, who pursued it. So, it’s a change in the law. And I think one for the best.

Adam Stirling [00:24:57] Mr. Arvay, very extremely capable legal counsel there never had the pleasure of meeting him myself. I am familiar with his work and many, many important cases.

Michael Mulligan [00:25:04] And he does take on these sort of important test cases and he’s moved the needle, and this is an example of that. And you know we have a common law system and the law moves in the Court of Appeal sort of made that point. You know though it doesn’t usually make lurching movements one way or the other. That would create an atmosphere of total unpredictability. But the law is something which can progress and move and in this case the needle’s moved in that direction and I think in a direction that’s all for the good.

Adam Stirling [00:25:33] I agree. Michael Mulligan pleasure as always. See you next week.

Michael Mulligan [00:25:36] Thank you.

Adam Stirling [00:25:37] Michael Mulligan from Mulligan Defence Lawyers in the second half of our second hour, every Thursday, Legally Speaking on CFAX 1070.