This week on Legally Speaking with Michael Mulligan:
The Criminal Code permits judges to make orders for the forfeiture of the proceeds of crime. When the proceeds of crime are not readily accessible because they cannot be located, have been transferred to a third party, are outside of Canada, or for various other reasons, a judge can order a “fine in an amount equal to the value of the property”.
Where such a fine is not paid, a judge can set a default period in jail.
In the case discussed on the show, a man was convicted of stealing a very large amount of maple syrup from a warehouse in Quebec. Barrels of maple syrup were removed, the syrup extracted, and the barrels returned full of water.
The man sold the stolen syrup for $10 million. Later he paid people who helped with the theft $9 million, leaving him with $1 million.
The legal issue in the case, which ended up in the Supreme Court of Canada, was how much the fine should be. The trial judge, and ultimately the Supreme Court of Canada, concluded that the fine must be in the full amount the man received for the stolen syrup: $10 million. Because of how the section was worded, the fine must be the full amount of the value of the proceeds of crime the man had before paying the people who helped with the theft.
There can only be a reduction in the amount of the fine where other offenders were ordered to pay back a portion of it, or where there was a separate order to repay the money.
As a result, in addition to an 8-year jail sentence, if the man doesn’t pay the $10 million fine within 10 years, he will be subject to an additional 6 years in jail.
Also, on the show, a Supreme Court of Canada case involving elections with respect to trials is discussed.
When someone is charged with a serious offence, by indictment, they have a choice about what kind of trial they wish to have: Provincial Court, Supreme Court, or Supreme Court with a jury. This choice is a significant one and should be made by the accused person, with advice from a lawyer.
In the case discussed, the lawyer for the accused was alleged to have made the election without express instructions from the accused person. Following a conviction at trial, the accused person appealed arguing that he wasn’t permitted to choose what kind of trial he would have.
Ultimately, the Supreme Court of Canada concluded that while the man should have made the decision himself, he didn’t suggest his choice would have been any different from that made by his lawyer at trial. As a result, there was no prejudice to him, and he will not be permitted to have another trial.
Another case discussed on the show involved a claim arising from a woman in BC who suffered a serious blood clot after she used a contraceptive patch.
The manufacturer of the patch, that the woman was suing, argued that her claim shouldn’t be allowed to proceed because she didn’t claim that she read the warnings in the package the patch came in, or that she wouldn’t have used the patch had the warnings included more information about the risks.
When it’s shown that a person would have proceeded with medical treatment, even if they had been told about risks that they weren’t advised of, they may not have a case even if the risk materializes.
In the case discussed, the BC Court of Appeal allowed the claim to proceed on the basis that it would be an issue at trial with respect to what risks should have been included with the patch and that it would not be helpful for the woman to make a self-serving claim that she wouldn’t have used the patch had she been told about a higher risk of a blood clot.
An automated transcript of the show:
Legally Speaking Mar 31, 2022
Adam Stirling [00:00:00] It’s time for Legally Speaking, joining us is always Michael Mulligan from Mulligan, Mulligan Defence Lawyers. Sorry, Michael, I tripped over my words there. I don’t normally do that. How are you doing today?
Michael T. Mulligan [00:00:10] I’m doing great. You know the wheels of justice. Just keep on turning. You know,
Adam Stirling [00:00:13] I have to say I may have been doing a double take reading our first story and wondering if somebody is playing a prank on me. Does this say $10 million fine for theft of maple syrup?
Michael T. Mulligan [00:00:24] Indeed, it could not be a more Canadian story.
Adam Stirling [00:00:27] All right. Let’s dive in.
Michael T. Mulligan [00:00:29] So this just out of the Supreme Court of Canada this morning. In the background to it is that the accused in this case actually managed to steal maple syrup, which was valued at, if you can believe it, $18 million.
Adam Stirling [00:00:43] Wow.
Michael T. Mulligan [00:00:44] You might wonder how would anyone collect up $18 million of maple syrup? Well, the answer to that is in Quebec, they’ve got a marketing scheme where people that are, produced maple syrup sell it to this government entity, goes into a warehouse and then they would store it, market it, I suppose, and sell it. And this fellow masterminded the theft of many barrels of maple syrup by taking, over having them taken over the warehouse, the maple syrup taken out, filling up the barrels of the water and putting the water filled barrels back into the warehouse. And he did that to quite an extent, taking the $18 million in maple syrup. Now, hot maple syrup, hot in the sense of stolen, not temperature wise.
Adam Stirling [00:01:28] Yes.
Michael T. Mulligan [00:01:28] Has a lower value than legitimate maple syrup, but nonetheless the man managed to sell the stolen maple syrup for $10 million.
Adam Stirling [00:01:38] Wow.
Michael T. Mulligan [00:01:39] And that was, that was acknowledged. That’s what happened. So, he got $10 million for the stolen maple syrup. And then after a period of time, of course, that’s a lot of barrels. He had help, he than paid off other people that helped with the maple syrup theft, resulting in this man coming out with a profit personally at the end of the day after paying off the other helpers of $1 million. So, he was convicted and sentenced to eight years in jail. A pretty long standing, substantial theft.
Adam Stirling [00:02:10] Yeah.
Michael T. Mulligan [00:02:10] And in addition to that, the Crown sought and was granted forfeiture of proceeds of crime. And in the criminal code, there are provisions which, in addition to the sentence imposed on somebody, allows a court to forfeit the profits of the proceeds of crime. And if the person still has, for example, the thing that they stole. Well, that’s easy. Like if you caught the man with your, he’d move the maple syrup to another warehouse. You could forfeit the maple syrup, right? Or if the man had a bag with the money that he just got for selling the maple syrup, you could forfeit that. Probably not much of a surprise. But what happens when the thing that was stolen or the money has been transferred somewhere else, given to other compatriots in crime? Something’s happened to it. You can’t just get it anymore. Well, they thought of that. And there is a provision that allows a judge to impose a fine instead of forfeiture, right? And part of the idea there might be to, you know, let’s say, for example, you thought the thief that squirrelled the money away and you know, your bank accounts in the Caribbean or they, you know, turned it into gold bars and buried it? Yeah. The idea there would also be, look, we can’t find the gold bars or where you managed to squirrel the money away. But the judge could just impose a fine equal to the value of the property. And if you don’t pay it, it results in a long the judge can impose a long default jail time.
Adam Stirling [00:03:44] Hmm.
Michael T. Mulligan [00:03:44] And now the issue is this the language in that section refers to the fine being an amount equal to the value of the property.
Adam Stirling [00:03:53] Hmm.
Michael T. Mulligan [00:03:54] And so now what? The man got the ten million he had all of the ten million that’s agreed. He later paid off other people that helped. But he had the $10 million. And so, the trial judge concluded that he was not allowed to impose a fine in any other amount. It has to be the value of the property, which he had at some point in time. $10 million.
Adam Stirling [00:04:17] Yes.
Michael T. Mulligan [00:04:18] And so he did that, and the judge imposed a $10 million fine in default six years in jail in addition to eight years in jail. You don’t want to steal maple syrup in Canada.
Adam Stirling [00:04:28] No.
Michael T. Mulligan [00:04:29] And so he appealed that, arguing that, hey, you shouldn’t. I don’t have $10 million. I had to pay off my criminal associates. I only got $1 million.
Adam Stirling [00:04:40] Wonder if he wrote it down? Yeah. Do you have contemporaneous memory and itemization of your criminal enterprise?
Michael T. Mulligan [00:04:45] I truly provided receipts. It was all taxes were paid, all of this sort of thing. And the Court of Appeal agreed with him, and he said Yes, yes. The judge has discretion to do that because the language in here is a judge may impose a fine in an amount equal to the value of the property. It then went to the Supreme Court of Canada, the Crown appealed and the Supreme Court of Canada disagreed with the Court of Appeal and agreed with the trial judge and said, Look, you don’t have any authority to do anything other than impose a fine equal to the value of the property, except for some limited circumstances like, for example, let’s say, two or three people were convicted, you could divide it up and make each of them responsible for a portion of it. Or as here, there was a separate order where the man was ordered to pay some $900,000 roughly to the marketing board for the maple syrup that happened earlier and separately that could be deducted. But otherwise, the Supreme Court of Canada has found that indeed, this section dealing with what’s happened where there’s to be forfeiture, but you can’t get the stuff back. The judge must make the order in the full value of the property that the person had in their possession, any time. You can’t reduce that by virtue of the fact that you gave some to your criminal associates or that you later lost it, gambling, or the bag of money you flew out of your truck or something as you escape the bank. If there’s to be an order, it’s got to be the full amount.
Adam Stirling [00:06:10] So……… Because just to make sure I understand. Sorry, sorry. I just I want to make sure I did lose you. So, if we’re in default, it’s an extra six years. What if I have $990000, but I’m 10,000 short? Is that still six years?
Michael T. Mulligan [00:06:23] Six years?
Adam Stirling [00:06:24] Wow, okay.
Michael T. Mulligan [00:06:24] and so the man is going to have an eight-year jail sentence. And then I guess we’ll see whether he’s able to come up with the money or he’s back and he’s got 10 years to pay.
Adam Stirling [00:06:34] Wow.
Michael T. Mulligan [00:06:35] If he doesn’t pay, then he’ll be back in prison for another six years. And I guess the concept there would be it might put pressure on somebody to maybe lean on their criminal associates to cost the money back up or go out and dig up the buried gold or something, right? Because otherwise it would be too easy for somebody to say, well, I don’t know. I gave it to Larry. I don’t know what Larry did with that right or I just can’t find it and not try too hard. And so, the idea is to, I guess, put extreme pressure on the person to come up with the money. But on the other hand, I guess we have to ask ourselves, is it fair that somebody who can’t come up with the money, if they can’t, has to spend six years in prison?
Adam Stirling [00:07:15] Yeah.
Michael T. Mulligan [00:07:16] In addition to the eight years in prison you got for the theft. So that’s the very Canadian story on maple syrup theft over the Supreme Court of Canada, just this morning.
Adam Stirling [00:07:24] Fascinating. What’s next on the list?
Michael T. Mulligan [00:07:27] Next on the list is another case that came out of the Supreme Court of Canada recently that dealt with the issue of election as to what kind of trial somebody would get to have in a criminal case. And the way that it works is that if a person is charged with a more serious kind of criminal offence, which was proceeded with by indictment, which is distinct from a summary conviction offence. That’s our Canadian equivalent indictable and summary to what you’ve seen on the movies and TV shows in the U.S., where they talk about felonies and misdemeanors. Felony being more serious. In Canada, indictment more serious.
Adam Stirling [00:08:03] Yeah.
Michael T. Mulligan [00:08:04] When you’re charged by indictment, there are some additional procedural protections that are engaged including the right to choose what kind of trial you would want to have. You could choose to have a trial with a Provincial Court judge with Supreme Court judge or Supreme Court judge with a jury. And in a criminal case, there are some big choices that are really for the accused person to make, not their lawyer. They include: how does a person want to plead guilty or not guilty? Does the person when they have a trial with a jury or a judge? The election? And do they want to testify? Those are really up to the accused person, not their lawyer. It’s kind of like when you see your doctor, your doctor, your job is to tell you, you know, here are the kinds of surgeries you could have or here the pills you could take. Here are the pros and cons. An then it’s for the patient to decide what they want to do with the information the doctors provided. Your doctor isn’t to just pin you down on the operating table and, you know, take out your appendix or something. It’s supposed to be the patient deciding and the lawyer taking instructions, on those critical points right; like, your client doesn’t tell a lawyer how to conduct a cross-examination any more than you tell your doctor what kind of scalpel he can perform the operation.
Adam Stirling [00:09:16] Yeah.
Michael T. Mulligan [00:09:16] But you sure do need to make the decision. Do you want the operation, or do you want the pills? And hear what happened, it was a serious assault on a fishing boat in Newfoundland and Labrador. Maybe the second most Canadian story today after the maple syrup theft. And what happened is the man’s lawyer chose a provincial court judge trial without giving clear instructions from his client. The man was convicted, and he was convicted. He then blamed the lawyer and said, I didn’t get to choose, but this was the kind of trial I was going to have. And so, I want a new trial. The case went to the Court of Appeal there in a Court of Appeals said yes, this was a fundamental decision. The man didn’t get to make it, you get a new trial. That went to the Supreme Court of Canada, and they came to a different decision. The Supreme Court of Canada found that yes, indeed the man lost out on his right to make a choice, but there was no indication that the man would have made any different choice had the option been put to him. He didn’t say I wanted a jury trial. He just said I wasn’t given a choice. And so, the Supreme Court of Canada found that, while the lawyer should have gotten clear instructions from him about what he wanted to do. There is no indication that it caused any harm because the man didn’t say I wanted a jury trial, and they didn’t get one. His complaint was simply, I didn’t get to make a choice. And so, on that basis, the Supreme Court of Canada said that, well, it was a problem. There was no prejudice to the man. And as a result, he doesn’t get a retrial, which of course, the man could choose to have the same kind of trial all over again, right? If the complaint was because I didn’t get a choice.
Adam Stirling [00:10:55] Yeah.
Michael T. Mulligan [00:10:55] And so that’s the decision of the Supreme Court of Canada on the issue of what happens when a person doesn’t get their proper choice to pick what kind of trial they want to have.
Adam Stirling [00:11:05] Legally Speaking, on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers will continue in just a moment.
Adam Stirling [00:11:11] And this is Legally Speaking on CFAX1070. Michael Mulligan for Mulligan Defence Lawyers. What’s next on the agenda, Michael?
Michael T. Mulligan [00:11:18] On the agenda is another case that deals with that sort of concept of consent in the medical context, and it rose in this way. It’s a civil case which was brought by a woman who was prescribed a contraceptive patch, rather than pills, to be of a similar thing but a different format.
Adam Stirling [00:11:40] Mm-Hmm.
Michael T. Mulligan [00:11:41] And the woman, very sadly after she started using the patch, suffered a severe blood clot, causing her permanent injuries. And so, she’s sued the company that made the patch, and part of her claim was that the company hadn’t put the sufficient and proper warning with the patch in the box. It came in describing the fact that she alleges that the patch causes a much higher risk of this kind of stroke, that she suffered, or blood clot, that she suffered sorry. And the companies that she was suing were trying to get her claim stopped in British Columbia on the basis that the woman hadn’t, they alleged, set out what was required in the, what are called the pleadings. The way that works is when you’re suing somebody, you would set out in writing what you’re claiming the other person did.
Adam Stirling [00:12:39] Yes.
Michael T. Mulligan [00:12:40] What they did wrong and then the other person, in their reply to that would set out why they think they were okay or didn’t do something wrong.
Adam Stirling [00:12:47] Yeah.
Adam Stirling [00:12:47] And that sort of frames what the case was going to be about, right? And in this case, the companies that manufactured the patch said, look, the woman didn’t say in her pleadings that she either read the warnings in the package or that if she did read the warnings and it had some more dire warning that she wouldn’t have used the patch. And so, they were saying that should be fatal to her claim, right? Because if the complaint is the warning wasn’t adequate, unless there’s some evidence that you either didn’t read the warning or would have acted differently, have the warning been something else? They say, well, there’s no basis here to conclude there is any problem. And the analogy to that in the sort of broader medical treatment context would be that when somebody is going through some medical treatment, taking drugs or having surgery or any medical procedure, there is obligation on the person providing that or doing it, to tell the person about the benefits and risks associated with it so the person can make an informed decision.
Adam Stirling [00:13:52] Yes.
Michael T. Mulligan [00:13:54] Now, the amount of the implication of not providing a full, detailed explanation of all of the risks is going to depend on the nature of the surgery or procedure performed. So, let’s say, for example, you’re offering an eyelid enhancement surgery or something or some beautification procedure.
Adam Stirling [00:14:15] Yes.
Michael T. Mulligan [00:14:16] You have to be very careful when you leave the risks, if this may cause blindness. You better make that clear.
Adam Stirling [00:14:22] Yeah.
Michael T. Mulligan [00:14:22] And if you don’t and the person has the procedure and they go blind, they’re going to have a pretty compelling cause for complaint. I mean, if it had never would have had this, you know, beautification procedure, if I realized I could go blind, that’s unreasonable.
Adam Stirling [00:14:35] Yeah.
Michael T. Mulligan [00:14:35] But on the other hand, if you stumble into an emergency department with a knife sticking out of your chest and the doctor says, oh my God, we have to perform surgery but doesn’t tell you about the risk of anesthetic or something.
Adam Stirling [00:14:47] Yeah.
Adam Stirling [00:14:49] Well, that may be deficient. They probably should tell you, but all the risks of things. But if the conclusion is, there’s just no option here, any reasonable person, even if they’re told there’s a one in a million chance of having an adverse reaction to the anesthetic. You’re still going to have the doctor perform the surgery to get the knife over their chest.
Adam Stirling [00:15:05] Yeah.
Michael T. Mulligan [00:15:05] Because they’re dead anyways.
Adam Stirling [00:15:06] Exactly correct.
Michael T. Mulligan [00:15:07] So they’re going to even if so, even if they weren’t given the warning, if they would have done it anyways? Well, no harm, no foul. And so that’s really what the company was arguing here, saying what the woman didn’t say she read the package insert, nor did she say if she had read the package insert and this had the information, that she said should have been there, that she wouldn’t have used the patch anyway. And so that’s what the trial judge and then the Court of Appeal had to wrestle with. And the Court of Appeal agreed with the trial judge decision that it wasn’t necessary for the woman to plead those things where claim that she had read it or claimed that she wouldn’t have proceeded if the warning had been there. And the rationale or the reasoning was that it was a matter of expert opinion that evidence would have to be called about what exactly the warning should have been, or it should have said, you know, this is much more risky than taking the pill or what exactly should it have said?
Adam Stirling [00:16:07] Yeah.
Michael T. Mulligan [00:16:07] You know, the idea that a person would have to have an affidavit or have in their pleadings, I wouldn’t have done this if you had said X. Both presupposes what X should have been. And the Court of Appeal concluded, would have just been a self-serving claim. Somebody saying, you know, I never would have done this if you told me about the risks. And so, they’ve allowed they’ve allowed the claim to proceed. The Court of Appeal has, and the woman will be, or the woman’s lawyer will be able to amend the pleadings to set out what was required. But then it will be a matter for evidence at the trial about what exactly should have been in the warning box. Right if more was required. And would this have made a difference for this particular woman? Was this the equivalent of the person with eyelid enhancements surgery or went blind and wasn’t told about that risk? Or is this the person who was the equivalent to the person stumbling in with the knife out of their chest who would have had the surgery anyways? And it doesn’t really much matter that the doctor didn’t tell them about all of the, you know, far flung risks that could be involved with that kind of a surgery when the alternative would be death.
Adam Stirling [00:17:14] Yeah.
Michael T. Mulligan [00:17:15] And so the case will be allowed to proceed. But I thought it was a good and interesting one that highlights again that issue of consent and how important that is both in the legal context, like with the elections and in the medical context, the consent to have a particular procedure done. And for that to be meaningful, the person has to be told about the risks that they could face so that they can make an informed decision for themselves, right? Both the medical system and the legal system have some of these core values, which include, you know, the autonomy of the patient or client to make those really important decisions. And the only way that can happen is if they’re given all of the necessary information so they can consider for themselves what they should do based on all their personal concerns and characteristics and risk tolerance. All of that. And so, we will have to wait and see what the outcome is with the patch. Well, I guess the other takeaway for people is whatever is on their, however adequate, it might be. Make sure you carefully read the information you’re given or that may be a problem if something occurs to later.
Adam Stirling [00:18:26] This case is very familiar. We discussed it before,
Michael T. Mulligan [00:18:30] probably some variation of it.
Adam Stirling [00:18:32] Yeah.
Michael T. Mulligan [00:18:32] I don’t think this particular one, but with some frequency, things go wrong right in the medical world, and many of them aren’t even the things which are going to produce a possible lawsuit. Right? When you have a medical procedure done, your doctor isn’t guaranteeing that it’s going to succeed. Right. That’s not the standard expected.
Adam Stirling [00:18:56] Yeah.
Adam Stirling [00:18:56] You know what’s expected of the doctor or the, you know, the company producing a medical product or whoever it might be, would be to inform somebody of the benefits and risks so that the person can make a choice for themselves and then act reasonably. Right. It’s not a guarantee of success. And so, every time a surgery goes wrong, or it isn’t successful, that doesn’t necessarily mean you could successfully go and sue the doctor who performed it. You would have to show that either you were told about the risks, and you would have made a different choice had you been, or that there was some failure to carry it out in a reasonably competent fashion.
Adam Stirling [00:19:35] We’ve got two and a half minutes left. I see here comments by the Crown following a conviction highlighting the role of the Crown in Canada.
Michael T. Mulligan [00:19:43] Yeah, I think this is just worth mentioning and we can do the two minutes. It highlights the what the Crown, what Crown Counsel Canada’s role. That is to say they’re not there in every case to try to seek a conviction or get the maximum possible sentence. And they’re not a lawyer for the complainant. And this was in a story in the Times Columnist, Louise Dixon wrote the story, I was quoting Tim Stokes, whose experience Crown here in Victoria following the conviction in a tragic impaired driving causing death and bodily harm. And the quote here, which I thought was notable when asked about the conviction. He said “it’s a solemn day a young man has been found guilty of a very serious offence. The victim’s family and the victims will hopefully get some closure, but it’s not a happy time.” And then spoke about what he was going to do in terms of submissions on sentence and indicated he was going to review the law and make submissions to the court about the appropriate range of sentence based on what the law would require. And the reason I thought that was notable is it really highlights what Crown Counsel’s proper role is. They’re not they’re trying to get a conviction at all costs or celebrating what is genuinely a tragic outcome for everyone. Here a person died or seriously injured. But on the other hand, it looks like a young Aboriginal man facing a very serious jail sentence as a result of what he did.
Adam Stirling [00:21:06] Yeah.
Michael T. Mulligan [00:21:07] And it just highlights that sort of balanced approach to these things, right? Is not a celebration when somebody is convicted, it is indeed a sad day? And the Crown’s role isn’t to try to seek the maximum penalty that could be imposed, but rather to make submissions about what the law requires. And so, I just thought it was a notable story to talk about because the description of what happened by Crown to that case, I thought, was pitch perfect in terms of what the proper role of the Crown is
Adam Stirling [00:21:38] very well Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking during the second half of our second hour every Thursday on CFAX. Always a pleasure, Michael. Thank you so much.
Michael T. Mulligan [00:21:46] Thank you so much. Have a great day.
Adam Stirling [00:21:48] All right, you too. Bye now.
Automatically Transcribed on April 5, 2022 – MULLIGAN DEFENCE LAWYERS