This week on Legally Speaking with Michael Mulligan:
British Columbia has a special provincial sales tax that applies to all legal bills. It is supposed to be dedicated to funding legal aid. The tax now collects more than twice the amount that is provided for legal aid. The extra, more than $100 million per year, is used for general government revenue and, as a result, the legal aid system in British Columbia is underfunded.
The diversion of the tax revenue has several unfortunate results.
Financial eligibility for legal aid is so low that a single person with a full-time minimum wage job is considered too rich to be helped by legal aid but would be very unlikely to be able to afford legal help.
People with legal problems that were previously covered by legal aid no longer receive any help. These include poverty law and many kinds of family law problems.
Even when legal problems are covered by legal aid, the amount paid to hire a lawyer is so low it can be difficult to find an experienced lawyer willing to help.
A further systemic difficulty with legal aid in BC is that decisions about how legal aid is to be provided are no longer independent of the provincial government, which is often opposed in interest to the people receiving help from legal aid. This has had real implications for how legal aid helps people. For example, the provincial government has authorized legal aid to assist people who are making slightly more than minimum wage, and who are charged with criminal offences, but only if they agree to plead guilty quickly.
Having poor people plead guilty quickly may save the provincial government money, but it is not fair that they only receive legal help if they agree to do this.
Despite all these serious problems, the provincial government recently announced a small increase in legal aid funding amounting to just over $8 million per year.
Amongst other things, the additional funding will support the Child and Youth Legal Centre which provided legal help to young people who are involved in child protection of family law disputes. This will assist judges in considering the wishes of young people when deciding how they should be dealt with in these kinds of cases.
Young people can get this kind of help by calling 1-877-462-0037.
Also on the show, a case involving an application for additional time to appeal a conviction for fraud over $5,000 arising from a guilty plea to cheating at baccarat. Because the man that plead guilty was not a Canadian citizen, he was being deported.
While the man had no previous criminal record and was married with three children who were Canadian citizens, a conviction for an offence for which someone could receive a sentence of 10 years or more makes the person ineligible to remain in Canada on the grounds of “serious criminality”.
In this case, even though he only received a sentence of 90 days, he was still being deported because of the sentence he could have received.
The man’s application for additional time to appeal was refused on the basis that his appeal had no reasonable prospect of success.
Finally, on the show, a man who had his personalized licence plate with his last name, Grabher, was not permitted to renew it after 27 years because it was deemed to support sexualized violence. His application to appeal to the Supreme Court of Canada was refused based on freedom of expression.
An automated transcript of the show:
Legally Speaking March 24, 2022
Adam Stirling [00:00:00] Time for Legally Speaking, joined, as always, by Michael Mulligan for Mulligan Defence Lawyers. Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:05] I’m doing great. Always good to be here.
Adam Stirling [00:00:07] Lots to talk about today, this week, including additional funding for legal aid. What are we seeing?
Michael T. Mulligan [00:00:13] Yes. So, this is, of course, good news. We’ve spoken before about some of the profound problems in BC, with legal aid funding being inadequate.
Adam Stirling [00:00:25] Yes.
Michael T. Mulligan [00:00:26] But the core of which is the result of the government diverting something north of $100 million a year of money collected pursuant to a special tax that was supposed to pay for legal aid in British Columbia. It’s a provincial sales tax you pay any time you hire a lawyer to do anything; unlike any other professional service, and the government diverts more than half of that money to other purposes rather than funding legal aid, which has caused for many years just profound problems. And so, it’s important to keep that figure and that background in mind. But with that being said, there was recently announced approximately $8 million in total additional funding for legal aid. So only a small portion of what’s being diverted. But every little bit helps, and the funding is going to allow some services at things which haven’t previously existed. But I think it’s important for people to know about. One of the things which has been funded as a part of the recent announcement is additional money for an organization called the Society for Children and Youth of BC.
Adam Stirling [00:01:41] Hmm.
Michael T. Mulligan [00:01:41] And that organization runs a legal clinic. It’s physically located in Vancouver, but the doors aren’t open as a function of COVID, and so communication with them can be online by telephone. All the different ways we’ve sort of grown accustomed to dealing with things like that over the past couple of years. And the core of what that Society for Children and Youth Clinic provides is legal advice and representation to children and youth who are involved with family law disputes or child protection disputes. And the idea there is that, particularly older children, may have a pretty profound interest in terms of what happens to them, right if their parents are separating, or if the ministry is looking to apprehend them.
Adam Stirling [00:02:34] Yeah.
Michael T. Mulligan [00:02:34] Or somebody trying to get access to them. The child may have an interest that’s legitimate and should be taken into account by a judge when deciding what to do. Separate from what parents might want, for example, right. Parents might have some idea about what should happen that may be different from what let’s say a teenager thinks should happen to them where they should live. What should happen? And so, this clinic will provide legal advice and representation for children and youth directly. The child or young person can call them, and a lawyer would be available to give them legal advice and potentially assist them with the case.
Adam Stirling [00:03:13] Hmm.
Michael T. Mulligan [00:03:14] And so are they going to provide the telephone number for that? Because of course, if people don’t have it, there’s no way to access it.
[00:03:21] It’s a toll-free number. It’s 1-877-462-0037, and that could be accessed somebody could google it for if you Google Society for Children and Youth of BC, right? And it would allow young people to call, talk to a lawyer and potentially get representation to help them or legal advice on those sorts of matters, family matters, divorce matters, where are they going to live? You know, should they be apprehended and put in care,.
Adam Stirling [00:03:54] Yeah.
Michael T. Mulligan [00:03:54] Where should they be? So that a judge would have the benefit of input from the young person, through counsel, when making decisions that involve them. And so, I think that’s a very good initiative and people should be aware of it. Either young people that might be listening or, you know, parents or grandparents or friends or others might be able to provide that information if somebody, if a young person needed some help or advice, that’s a place they’d be able to call. Other initiatives include the maybe a little bit into the weeds, but I think it’s a pretty important one.
Adam Stirling [00:04:29] Yeah.
Michael T. Mulligan [00:04:30] It’s for serious legal aid cases like murder cases or manslaughter cases. It’s a small amount of money to allow legal aid to assign a junior lawyer to participate in the defence. That’s important for a number of reasons. First of all, those are complex cases, lots of work. Usually, the Crown would have more than one lawyer working on them and having a junior lawyer assigned to them also provides an important way for young lawyers to get training and experience right. Otherwise, how do you ever expect what’s going to happen. So that’s a good initiative. One of the concerns that remains, and it arises here in this announcement, however, is that at one point in British Columbia, the provision of legal aid was intended to be independent of government. And that’s important because many of the legal aid cases involve the government on the other side.
Adam Stirling [00:05:21] Yeah, makes sense.
Michael T. Mulligan [00:05:22] They’re looking to apprehend a child or prosecute somebody criminally. And so, you don’t want the party who you’re having a legal dispute with to be deciding how you’re going to be defended. Right.
Adam Stirling [00:05:34] yeah.
Michael T. Mulligan [00:05:34] That’s not great. And that changed a number of years ago and not for the better. Of course, everyone likes to have control over everything. And the government has now exercised control over the provision of legal aid right down to the minutiae of what exactly is going to be covered. When can you get help? When can’t you? And one of the ways that’s manifested itself is that we talked about the fact that the eligibility for legal aid is very low, to get legal aid help at all, if you’re a single person, you would need to make less than $1,670per month.
Adam Stirling [00:06:12] wow.
Michael T. Mulligan [00:06:12] And what that means is that if you have a full-time minimum wage job, you’re too rich to get any help from legal aid, which is a travesty because that person has no hope after paying rent and buying food to be able to hire a lawyer to help them. And so that’s a very serious and ongoing problem, right? We’ve indexed other things to inflation. That figure is not. One of the things that’s happened is where they’ve introduced this idea of representation for people for early resolution in criminal cases where the person can make $1,000 more than their right. $2,670, just over the threshold of the person with the minimum wage job. So, a lawyer could be paid a small amount to assist the person in pleading guilty. Now you have to think about that early resolution, of course, who likes who wouldn’t like things to happen early?
Adam Stirling [00:07:09] Yeah.
Michael T. Mulligan [00:07:09] And generally assisting more people who are unable to afford counsel would be a good thing. But you have to think carefully about that because what the government has chosen to do is to say, if you are impoverished and you will plead guilty, we will pay a small amount for a lawyer to help you.
Adam Stirling [00:07:27] Yeah, the incentive.
Michael T. Mulligan [00:07:28] If you wish to plead not guilty, yeah, we will not help you. And so, you can certainly see how, from the government’s perspective, incentivizing poor people to plead guilty early might be very attractive and might make things move quickly in the justice system. Might help prosecutions move along, save money on judges and courts. But is that appropriate? And is it appropriate that you help somebody only if they will plead guilty when that decisions are being made by the person who’s trying to prosecute you. And you have to ask yourself other questions like, well, what kind of leverage is the lawyer going to have when they’re there representing somebody on the basis that they can only be paid if they’re pleading guilty, not if they’re pleading not guilty or having a trial? And then because of the broad other broad funding problems, the amount they would pay. The lawyer is something like $450 for all the work involved in the case, start to finish where the person winds up pleading guilty. And so, you have a system, which is inadequately funded, meaning people can’t get counsel and then you have the government now directly dictating what legal aid is going to be funding and you will see an initiative like that. Circumstances where they may be funding it in a way; using their funding and power to direct a legal aid is to be provided, to perhaps not appropriately influence what people are doing. It doesn’t seem to my mind, fair or reasonable that you would tell somebody who cannot afford to hire a lawyer on their own; we will only help you and only very modestly, but only if you’re pleading guilty. If you wish to have a trial or plead not guilty, you’re on your own and you’re on your own in a way for a person who’s making minimum wage, there’s no hope of getting any help on their own. And so, it seems to me, well, the changes announced are good things. Every little bit of money is better than not. And so, the government’s to be commended for that.
Adam Stirling [00:09:33] Yeah.
Michael T. Mulligan [00:09:33] Ultimately, what needs to happen is the government needs to stop diverting money collected pursuant to the special tax, and they need to restore the independence of the provision of legal aid. It used to be that the board of directors was appointed in majority by the Law Society or the Canadian Bar Association. Now, with the government entering into these direct memorandums of understanding telling them what they’re going to be providing. Of course, you can see why if you want to be able to take credit for new initiatives like that, the kind we just talked about great, but the one for the Society for Children a Youth. The government can send out a press release. That’s wonderful.
Adam Stirling [00:10:10] Yeah.
Michael T. Mulligan [00:10:11] But it has the very undesirable impact of in some cases like funding, only guilty pleas are not trials for people who are impoverished.
Adam Stirling [00:10:21] yeah.
Michael T. Mulligan [00:10:21] You know, potentially inappropriately interfering with the kind of independent advice and assistance that people need. So we need to increase funding, restore funding, stop taking money away that was supposed to go there and restore independence so that you can have a person can have confidence that they’re getting legal representation intended for them and all of their interests, not guided by things like a desire to speed up the process so that people plead guilty early, which may be a government interest, but may very well not be in the interest of the person getting help.
Adam Stirling [00:10:58] Michael Mulligan with Mulligan Defence Lawyers, we’ll take a quick break, Legally Speaking continues right after this.
Adam Stirling [00:11:04] All right, we’re back on, legally speaking on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers next on the agenda, Michael. The basis of an appeal and how it intersects with the prospect of deportation. A complicated case here.
Michael T. Mulligan [00:11:17] Indeed, the case began with the underlying allegation was cheating at Baccarat at a casino.
Adam Stirling [00:11:25] Okay
Michael T. Mulligan [00:11:26] So, this fellow eventually pled guilty to fraud over $5,000 because he was caught on camera cheating the Hard Rock Casino playing Baccarat. Sadly, the case doesn’t describe what exactly he was doing to cheat at Baccarat, apparently on fifty-two occasions,.
Adam Stirling [00:11:45] Wow.
Michael T. Mulligan [00:11:46] But clearly there was some, some method by which he did that. The problem arose because this man, who was 42 years old, married with three children and who had no other criminal record, had come to Canada, applying as a refugee in 2009 and was denied. And so, he simply lived in Canada since then without any legal status at all.
Adam Stirling [00:12:13] hmm.
Michael T. Mulligan [00:12:13] His wife was a permanent resident. His three children were Canadian citizens. He worked here. He didn’t have any other difficulty. But the way the Immigration and Refugee Protection Act works, maybe a bit of a misleading title, given what I about to tell you is that if you’re convicted of an offence for which you could be sentenced to 10 years in jail or more, even if you are not, then this man was not. He was sentenced to 90 days in jail for his baccarat misbehaviour. You become inadmissible to Canada on the basis of serious criminality.
Adam Stirling [00:12:50] hmm.
Michael T. Mulligan [00:12:50] And so and there’s no appeal from that. The government just tells you; you’re gone and that’s it. You can’t appeal it. As for leniency or do anything else, you’re just off you go. And so, this man realized that he was going to be gone, leaving his children and wife behind. And so, he attempted to appeal for the guilty plea conviction, arguing that the plea was uninformed because he didn’t know about those immigration consequences. And indeed, there have been cases where that’s genuinely been that been so. Where defence counsel wasn’t alive to it, crown didn’t pick up the issue, judge didn’t know about it. Then somebody who’s not a Canadian citizen, they can be a permanent resident even, just becomes eligible to remain in Canada and they can be just deported. And it could occur for relatively common offences like, for example, impaired driving is punishable by a theoretical maximum of 10 years in prison. And so, if somebody is convicted of impaired driving and they’re a permanent resident, you may be just deported with no right of appeal. And there have been cases where people have just been totally unaware of that, the lawyer hasn’t known about it or alerted. The judge hasn’t picked up on it. No one has. And there’s unbeknownst to them after, you know might have lived in Canada you were a child, you’re just deported. And so, I guess it was a one piece of advice for anyone who’s a permanent resident and eligible to apply for Canadian citizenship. Get it done because you may find yourself on the on appealable end of being deported. If you were ever convicted of a multitude of offences, including things like impaired driving, some forms of assault, other things for which you might not assume you’re treating at baccarat.
Adam Stirling [00:14:42] So you would be I’m sorry to sound so obscure, like I know, like we can’t allow cheating. I understand that. It just sounds like such an obscure thing to happen.
Michael T. Mulligan [00:14:50] Sure. No doubt it’s serious, Hard Rock Casino to be about money,.
Adam Stirling [00:14:55] no.
Michael T. Mulligan [00:14:55] That’s obviously serious, but you probably wouldn’t see the pedal. For treating it, bad crowd ought to be deportation.
Adam Stirling [00:15:02] No.
Michael T. Mulligan [00:15:03] That may be a little much. So, people need to be aware of that is really important and easily be missed if somebody or their lawyer doesn’t know about their immigration status. Nobody might tell them. And there have been cases like that where appeals have been allowed on the basis that hey, just no one knew about these consequences. Nobody took them into account. You wouldn’t have pled guilty had this been told to you. But for this man’s case, he hadn’t appealed. There an appeal period. If you want to appeal the conviction, you’ve got 30 days to do it. If you don’t do it within 30 days, you need to ask for extra time, an extension of time to appeal. And when you’re doing that, there are things that a judge needs to take into account, like things like you do have an intention to appeal or just didn’t get it done on time or with the other side be, the crown, be prejudiced by giving you extra time; or in one of the factors, is there any merit in the appeal. And here on the facts of this case, I just mentioned the judge concluded there was no merit in the appeal was just bound to fail because the man’s lawyer had spoken to him about the immigration consequences. He had gotten advice from an immigration consultant, including in writing, because he was told. there’s a very high probability that you may be deported with no appeal mechanism. And even if there might be some wiggle room about what was the wording, did you understand what you know eligible meant or no right of appeal meant or something? Ultimately, the judge concluded, this man was aware of it. The lawyer told him about it. He got other advice about it. And so, his appeal had no hope of success. And so, despite the fact that he’s now discovered that indeed, he’s going to be sent out of the country, leaving behind his children and wife, unless they wish to follow, that’s the end of it for him. And he will not be permitted additional time to file his appeal. He was trying to do it after about six months when he realized he was about to be shipped away. And so, the cautionary tale there is, be aware of that. If you are somebody who was a permanent resident in Canada and you’re eligible to apply for citizenship, do so because of the way that act works. There are various offences for which you could find yourself, no matter how long you’ve been here or how meritorious your case is or who would be leaving behind. You may be exited on the basis of serious criminality. So just be very careful if you’re in that. If it is your status and if you have a way to improve that status, I would urge people to take it so that you don’t find out how potentially precarious your status was.
Adam Stirling [00:17:50] All right. Four and a half minutes left. The next case is interesting. The style of cause caught my eye, and I have to admit I read it more than once to make sure I hadn’t misread it. Set this one up for us.
Michael T. Mulligan [00:18:03] Yeah. So, this is a man sort of Nova Scotia and it’s a man, last name of Grabber, G-R-A-B-H-E-R.
Adam Stirling [00:18:12] Ahh.
Michael T. Mulligan [00:18:12] Mr. Grabher had a personalized licence plate with his last name. He had it for some 27 years. He was proud of his, he was an immigrant to Canada. He was proud of his last name and his heritage. And so, he had Grabher on his Licence plate for twenty-seven years, after 27 years of driving around in Nova Scotia with his Licence plate, the motor vehicle branch there determined that his Licence plate could be promoting sexualized violence.
Adam Stirling [00:18:42] Yes.
Michael T. Mulligan [00:18:42] On the basis it read Grabher.
Adam Stirling [00:18:42] Yes.
Michael T. Mulligan [00:18:45] so denied his application to renew the Licence plate. Well, he challenged that, arguing freedom of expression under the charter. And there is a surprisingly rich body of law surrounding that issue, right? Sometimes I think people mistakenly think, well, this is freedom of expression that means freedom. I can do anything. I’m expressing myself. Look at me go. But that’s not the case.
Adam Stirling [00:19:13] I like the look at me go, that really sort of paints the picture.
Michael T. Mulligan [00:19:16] That’s just get my flags and horn going, off I go. But it’s more restrictive than that. And it’s particularly or some particularly naughty legal problems where the place and way in which you’re trying to express yourself is government property. Yeah, right. Like the Licence plate. Right? This isn’t like you’ve made a sign. You want the government Licence plate to say nobody’s stopping Mr. Grabber from putting a big bumper sticker on the back of his car. Knock yourself out. But it becomes an issue when it’s that. And there is a leading case on that issue, which went all the way to the Supreme Court of Canada from British Columbia and the issue there involved political advertising on the side of a bus.
Adam Stirling [00:20:02] Hmm.
Michael T. Mulligan [00:20:03] And there was a desire by the person in that case was the student society to put a political ad on the side of a bus in Vancouver, and they were told no. On the basis that they had a policy of no political advertising on buses. I guess some desire not to have a public thing look like it was promoting a political party or political ideology or something.
Adam Stirling [00:20:25] Yeah.
Michael T. Mulligan [00:20:26] And that was challenged and went all the way to the Supreme Court of Canada and the transit authority lost. And so, there is a body of laws surrounding how to approach claims of freedom of expression with respect to something which is government property, effectively a bus or a Licence plate or something. But it involves a nuanced analysis of sort of the public nature of it and the place. And so, the Court of Appeal, this case in Nova Scotia found that you did not have any freedom of expression with respect to a government Licence plate. It wasn’t a matter of balancing it. It’s just that’s not a place in which you’ve got the right to engage in freedom of expression. Right.
Adam Stirling [00:21:11] hmm.
Michael T. Mulligan [00:21:12] It’s not some limitless authority to do anything you like and express yourself anywhere you want. And when you’re trying to do it in that context, Section 2b does, just doesn’t apply at all. It’s not a matter of balancing. It’s just you don’t have the constitutional right to have your Licence plate, so anything you want. And so, it’s also an example of a case where just being bound and determined isn’t going to get you off to the Supreme Court of Canada. Well, it was an interesting little legal issue. Mr. Grabher applied for leave to appeal to the Supreme Court of Canada. You can’t just go to the Supreme Court because you really want to are bound and determined. And so, the Supreme Court of Canada denied him leave and said, No, that’s it. You had your case heard, and you have had your case heard in the Nova Scotia Court of Appeal. And so, Mr. Grabher will need to put up with a different Licence plate or maybe give himself a bumper sticker. Freedom of expression doesn’t apply to that.
Adam Stirling [00:22:09] That sounds like something in a comedy, and I can just picture it. You know if I was writing it as satire, I’d say, Mr. Grabber. And they go no, no no you pronounce that wrong. They go, okay, no, it’s grab her and sort of leaning into the H as the correction every time. But I could just, yeah, what a nightmare
Michael T. Mulligan [00:22:23] …is that remove the H, just mis spell his last name maybe grabber will be better.
Adam Stirling [00:22:27] I just, yeah. All right. Well, there we go. Truth stranger than fiction as it often is. Michael Mulligan a pleasure as always.
Michael T. Mulligan [00:22:35] Thank you so much. Have a great day.
Automatically Transcribed on March 25, 2022 – MULLIGAN DEFENCE LAWYERS