Lack of Jails Threatens Trials and BCNDP vs Constitutional Requirements
A court system can have the best rules on paper and still grind to a halt when there is nowhere to hold people. We start with a fresh BC Supreme Court practice direction aimed at a problem that’s been building quietly across the province: accused people denied bail in communities with no correctional facility close enough to support a long trial. When daily transport is impossible, and police detachments refuse to function as ad hoc jails, judges are left making hard calls that affect fairness, public safety and the Charter right to a trial within a reasonable time.
From chartered flights to the limits of small-town holding cells, we talk through why this is happening and what the court is now requiring through pretrial hearings. We also break down the real-world outcomes on the table: adjournments that risk delay arguments, moving trials away from the community where allegations arose, or releasing an accused from custody simply so the trial can proceed without collapsing under logistics. If you care about access to justice in British Columbia, this is where policy meets reality.
Then we turn to one of the biggest legal governance fights in BC right now: the constitutional challenge to the Legal Professions Act and the future of the Law Society of British Columbia. We dig into the idea of an independent bar as an unwritten constitutional principle, why that independence gives meaning to an independent judiciary, and what it could mean when legislation steers a legal regulator toward government priorities like UNDRIP while adding new approval structures and expanding appointment power. The trial decision lets the law stand for now, but the stakes are high, and the next stop is likely the Court of Appeal.
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Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking April 30 2026
Adam Stirling [00:00:00] Time for a regular segment, joined as always by Michael Mullican with Barrister and Solicitor with Mullican Defence Lawyers, Legally Speaking on CFAX1070. Good afternoon, Michael. How are we doing?
Michael T. Mulligan [00:00:10] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:13] We’re going to start today with a just-released practise direction, it says here, from the BC Supreme Court. What’s a practise direction and what is this latest one about?
Michael T. Mulligan [00:00:23] Sure. So the courts, the Supreme Court, Court of Appeal, Provincial Court, the administrative judges can issue directions about things, sort of procedural things and rules about how things are going to be conducted, when and how things should be scheduled, that sort of thing. And this was one of those and it just came out today and it’s one that looks like it’s going to have a pretty significant impact around the province. The background of it, as explained in notice is that and it involves the issue of what is to be done with people who are in custody for their trial. They’ve been denied bail, they’ve been detained in communities where there is no correctional facility for them to be housed in for the purpose of their trial. And that issue becomes particularly acute for longer trials which are often the case in the bc supreme court dealing with more serious matters, murder and so on there. In the past what’s happened in these locations and there’s a whole list of them here eleven of them: Cranbrook, dawson creek, fort st john, nelson, powell river, prince rupert, revelstoke, roslyn, smithers, Harris and Williams Lake, is that they would, when it was the nearest correctional facility is so far away, you can’t drive there and back every day. Particularly being an issue when you have trials that go on for weeks on end. In the past, what they did is they had arrangements to have people who were in custody housed in like local RCMP detachments or local police detachments.
Adam Stirling [00:02:07] mm hmm.
Michael T. Mulligan [00:02:07] And that has been discontinued because simply those local police forces are just not equipped to do that and so that’s been terminated. That’s been an issue, by the way, in Victoria in the region as well. And it arises here in the case of prisoners who are female because we do not have a correctional facility for women in Greater Victoria or on the island. They have to go over to the lower mainland or for children. The youth custody centre here was shut down. And so, you’ve got the police department saying, look, we can’t manage this. And so what the practise directive details is that the court sheriffs who are responsible for people who are in custody for their trial have been chartering airplanes and flying the accused person back and forth to the pretrial facility daily. And as courts point out, that’s not always available. And so there have been efforts to try to fix this, including as detailed in this notice. For several months there’s been a “working group” made up of the provincial government officials and police departments and so on, trying to find some solution to this and it just hasn’t come together at this point. And so what the court has said is that there are going to need to be these pre-trial hearings with judges to determine can they manage the trial for people who are in custody when there’s nowhere to house the person that you can drive to and back every day in relation to where the courthouse is. And so the court has pointed out that at those hearings the judge is trying to manage that, will need to decide whether and how that should be approached and the various solutions listed here are that: the trial could be adjourned. That could have an impact in some cases about whether there ever will be a trial because a person has a right to a trial within a reasonable period of time.
Adam Stirling [00:04:12] mm hmm.
Michael T. Mulligan [00:04:13] Another possibility they raised is moving trials to other locations. Sometimes that can happen, but it has other knock-on effects, like witnesses that have to be transported all over the place and there’s a legal presumption that trials are supposed to be in the community where the allegation is from. So that has problems. Or another possibility is that the accused will be released from custody in order to allow the trial to proceed, in that location and not with additional delay. And so this just came out, this morning, and we’ll have to wait and see how it plays out. But it’s clearly a problem and in these communities it’s just very logistically difficult when there’s no proper facility there and the police just aren’t in the business of acting as jails for people who are you know maybe in there for weeks. Police departments often have sort of basics like holding cells where you could like hold somebody overnight. You know for the purpose of a bail hearing the next day or you know that sort of thing.
Adam Stirling [00:05:16] mm hmm.
Michael T. Mulligan [00:05:17] But they’re not equipped to operate as like a long-term jail like many of them don’t have things like, no shower facility and no proper way to feed the people and so on. And so that’s going to be, I mean that’s been an issue here locally, but you know asking some small RCMP detachment with one cell in the back room or something to manage somebody in custody for weeks on end while have a trial.
Adam Stirling [00:05:42] Yeah.
Michael T. Mulligan [00:05:42] And no facilities for them, it’s just really not. Workable. It also means for the people I think in some circumstances like let’s say you had two cells in some small community and one of them is taken up by a person who was having a long trial. It could also mean things like you know the other cell is somebody who’s in there for being drunk in public or something and so you wind up with an accused person who’s got no shower facilities, can never go outside, and every night during their trial they’ve got somebody who is you know sitting next to it throwing up or yelling or whatever, and so really not a great facility for them. And the police detachments have just decided, sorry, we just cannot be the last resort, which is often how, frankly, police are treated, when you don’t have other proper services in place and sort of leave it to the police. And I think they’ve looks like they’ve just had enough of that. So that’s the latest from the BC Supreme Court and we’ll have to wait and see which of those choices judges take up to make sure that these trials can proceed when there’s just no adequate facility to have the person in custody.
Adam Stirling [00:06:46] All right, let’s take a break. We’ll be back right after this as Legally Speaking continues on CFAXS 1070.
[00:06:52] Commerical.
Adam Stirling [00:06:52] All right back on the air here at CFAXS 1070 as we continue Legally Speaking joined as always by Michael Mulligan with Mulligan Defence Lawyers. Up next Michael on the agenda for today, removing the requirement that the Law Society”uphold the public interest and instead do things such as implement UNDRIP”. How does all that work and what is the latest on that?
Michael T. Mulligan [00:07:12] So the latest on that is a trial decision brought challenging the constitutionality of changes the provincial government is trying to make to how lawyers are regulated in the province. And it’s a really interesting decision that came out yesterday. And it deals, first of all, with one of the fundamentals, the premise of this constitutional argument, bearing in mind, of course, that when things are challenged in court, they are not a judge assessing whether what the government is doing is wise or a good idea or anything of the sort. All judges have the authority to do is to determine whether laws passed by the government are constitutional, which is to say permitted at all, right?
Adam Stirling [00:07:58] Yeah.
Michael T. Mulligan [00:07:58] Sometimes the way I describe it is it’s not a great way to make public policy by asking what can you possibly get away with and then doing just slightly less than what would be unlawful. It’s sort of like you don’t figure out how much medicine you should take by determining the amount that will kill you and then recommending you take just a little less than that. We should do better.
Adam Stirling [00:08:16] Yeah.
Michael T. Mulligan [00:08:18] And so. The premise of this litigation is brought by the Law Society of British Columbia and a host of other groups, including law societies from other places in the country and other groups that were interested in all of this. The first sort of fundamental premise of the constitutional challenge was arguing that the idea of an independent bar is an unwritten constitutional principle. And that’s a really interesting thing to think about, because in Canada, we have all kinds of – we have a written constitution, but many of the things that we take for granted are not written down at all. If you just read the Constitution Act, the written part of it, you would think that the, in British Columbia, the lieutenant governor just kind of does whatever they want, and the governor general kind of runs Canada. You know all these politicians, what are they, right, which is not how we operate. Much of how we operate, the very premise of our governing system right are these principles that are not written down. You don’t have the Lieutenant Governor just disallowing legislation left right and centre and doing whatever they want. And so one of the first things that the judge had to deal with in this case is, is this concept of an independent bar an unwritten constitutional requirement? And to assess that, the judge looked at sort of the history of that, pointing out things like, you know, for example, the law society’s existence in 1874, shortly after the province came into force, or came into existence, and looked at things including like how has this been managed since, and the history ir, of course, goes back even before British Columbia existed. Like in the UK, the way barristers are regulated are by these things which are called the Inns of Court. Over there, we’ve got like Lincoln’s Inn, and the Inner Temple, and Middle Temple, and Grey’s Inn. And they’re these sort of organisations that manage and discipline and set rules and so on for how barristers are to conduct themselves. And they are not a function of the government. And it’s really interesting and important, of course, because the things like, you know, we take for granted the idea of things like an independent judiciary. You don’t want the judge who’s being told what to do by the government. And for that to have any meaning, you also have to have an independent bar, because judges don’t just roam through the streets looking for problems to solve.
Adam Stirling [00:11:00] mmm.
Michael T. Mulligan [00:11:01] And if you don’t have a dependent bar, the independent judiciary is pretty well meaningless. And so the judge found that indeed that is a constitutional principle, which is a requirement, and that can act as a constraint on what government is allowed to do. It’s not unfettered. Now, the judge then had to sort out, having found that to be the case, whether what the government is trying to do here violates that. And some of the things which were pointed to by the law society include the fact that the government in this legislation called the Legal Professions Act, they added an S to the legislation, does things like it removes the basic object of the law society, which currently exists, which is to uphold and protect the public interest and the legal rights and freedoms of all people in British Columbia. And they’ve replaced that with things that are priorities for the current NDP government, like things like implementing UNDRIP, right, the UN Declaration on the Rights of Indigenous People, for example. And interestingly on that score, it’s not implementing the BC legislation, it is implementing directly the United Nations Declaration. And so that’s interesting, even if the BC version of that gets repealed or suspended, the way this is worded, it would still exist.
Adam Stirling [00:12:21] hmm.
Michael T. Mulligan [00:12:21] And then they’ve done other things like allowing them to appoint more of the people like the board of directors, they’re called benchers.
Adam Stirling [00:12:27] yeah.
Michael T. Mulligan [00:12:28] That operate the law society, gives the government more authority to appoint them. And then, they also looked at another thing, which is interesting, that may not have got a lot of attention, but they’ve introduced this thing called an Indigenous Council, and the Indigenous Council and another thing called the Transitional Indigenous Council. It has authority approval powers over some of the rules that the law society would be able to make. And so it’s basically the provincial government is trying to modify the law of society in order to have it carry out its political objectives.
Adam Stirling [00:13:10] mm hmm.
Michael T. Mulligan [00:13:10] And broadly speaking, I must say one of the reasons why this is such a troubling piece of legislation. Is it indicative of a few other attempts along the same lines that we’ve seen in British Columbia, like for example, the effort to pass legislation in response to Trump to try to allow the government to pass rules without going through the legislature, or things that restrict property rights, or efforts to change things like financing for political parties in a way that may advantage the current government. Which, and changes to this and other sort of otherwise independent professional bodies, that are sort of the left-wing equivalent of what we’ve seen the right do in places like the United States or Hungary, for example.
Adam Stirling [00:14:07] mm hmm.
Michael T. Mulligan [00:14:07] Where, you know, for examples in the United States, again, they have all kinds of sort of norms, they would call them there, in terms of things like, you know, how the president might conduct themselves.
Adam Stirling [00:14:19] mm hmm.
Michael T. Mulligan [00:14:20] And the current president in the United States has become a master at sort of doing things that are not in accordance with those things, like in the legal regime, attacking, making putting rules in place to punish law firms that have taken cases that the president doesn’t like. Or you see other things going on there in terms of things like gerrymandering or redistricting or in places like Hungary over the past number of years there were all kinds of changes made to advantage the right-wing government that was in place there. And what those things seem to be is you wind up with a sort of a government that concludes that their policies are so important and that it’s worth undermining some of the things that would act as restraints on their ability to do what they want. And the Law Society in British Columbia is an example of that. You know, many, many times what lawyers are tasked with doing is opposing what the government is trying to do in terms of whether it’s some individual prosecution of somebody or the challenging laws or whatever it might be. And so this piece of legislation, the changes to the Legal Professions Act, is in that same vein of trying to constrain the sort of elements in society that might resist what the government is trying to do. And so it’s in that context that this case has come out. And indeed the judge found that there are constitutional restraints on what the government is permitted to do. But as is a judge’s task, it’s not to decide whether those, this legislation is a good idea or not. I think most people, if you ask them to think, should you have the regulator of lawyers tasked with implementing political goals of the current government.
Adam Stirling [00:16:37] yeah.
Michael T. Mulligan [00:16:37] I think most people would think about that and say, that’s really not a very good idea. But the judge has to, as they’re charged with doing, look at each of the various things that the provincial government is doing here, like trying to give themselves more power to make rules, trying to give this IndigenouC Transitional Council authority to approve the initial rules that this law society would implement, or give, for example, this Indigenous Council the power to approve particular things, or the obligation to implement the UNDRIP, or each of those things individually, the judge goes through and analyses, well, does this seem to be in violation of that constitutional obligation? And despite the argument from the current law society, that this amounts to a sort of, the language used was a waterfall effect of numerous measures in this piece of legislation, which, collectively, in the view of the current law society, undermines its independence in a way intended to advantage the current government and to deprive, ultimately, People of their ability to get independent legal assistance. And the judge concluded that ultimately, well, whether or not this is a good idea or not, it doesn’t go so far as to be unconstitutional or unlawful.
Adam Stirling [00:18:12] hmm.
Michael T. Mulligan [00:18:12] Now, I rather suspect this won’t be the, it’s almost certainly not to be the end of it. This will go on to the Court of Appeal and probably the Supreme Court of Canada just given how important those principles are. But just reading this decision, it is both interesting because it gives that historical perspective on how we got here and how constitutional principles work in Canada, and why it is important that you have an independent judiciary and bar. And of course, those things don’t exist to advantage the judges, for example. It’s not important that an independent judicial because somehow that helps judges. Nor is it important that you have an independent bar because somehow that’s good for lawyers. Tt’s important that we have an Independent Judiciary and independent bar so that people are able to get assistance legal assistance and have an impartial forum to have disputes resolved, many of which involve the government. And you know the worry with these kinds of changes where you switch right into the legislation, whatever the government of the day thinks is their most important priority and you require a regulator of the legal profession to implement those things, just imagine being somebody who’s on the other side of that. If you’re, let’s say you’re the property owner in Richmond whose property is at risk of, you know, you may lose it, right, and that may extend to other parts of the province, you may well want to be able to hire a lawyer who’s going to vigorously oppose some of those things. What does that mean when the regulatory agency is charged with implementing the legislation that is at the core of that? You know, that is really seriously troubling. And so this is a very bad piece of legislation, bad from the perspective of living in a democratic and free society where you’ve got sort of independence of the legal profession and the judiciary so that people can have fair hearings into these things. This is a terrible piece of the legislation, but at least the decision on the trial level is that whether it’s good or bad, that it is allowed. And so we’ll have to wait and see what the next step is, likely an appeal, but that’s the latest out of the B.C. Supreme Court in terms of the provincial government’s effort to change the law society to implement their priorities.
Adam Stirling [00:20:48] All right, this is all the time we have for now, Legally Speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always.
Michael T. Mulligan [00:20:55] Thanks so much, always great to be here.
Automatically Transcribed on May 11, 2026 – MULLIGAN DEFENCE LAWYERS