Mental health and the criminal law, a PLTC judicial review, and a police officer dismissal upheld on appeal

 

This week on Legally Speaking with Michael Mulligan:

An appeal by a 13-year-old girl who was found to be not criminally responsible as a result of a mental disorder (NCRMD) provides insight into how criminal law deals with mental illness.

The girl in question was described as having a childhood that was troubled: a history of neglect, a family history of substance use, mental health issues and suicides. She had been receiving assistance for her mental health since she was eight years old and had been hospitalized for mental health issues numerous times since she was ten years old.

She was charged with various offences including mischief for throwing cups, plates, and food in her group home, sealing two lighters from a corner store, lighting some nearby shrubs on fire, and assaulting a nurse and security guard in a youth mental health facility.

After the girl stole the lighters from the corner store, she was committed under the Mental Health Act. The Mental Health Act, in British Columbia, permits someone who is a danger to themselves or others to be kept in hospital for involuntary treatment.

When the criminal cases got to court, there was an assessment done to determine if the girl was “fit to stand trial”. This requires someone to have a basic understanding of things like what the charges are, who the various people in a courtroom are. She was found to have this capacity and so the case was permitted to proceed.

A further assessment diagnosed the girl as suffering from several mental health issues: psychosis, likely caused by childhood schizophrenia, complex posttraumatic stress disorder, attachment disorder, polysubstance misuse, drug-seeking behaviour, and significant abandonment issues with respect to family and system.

Both lawyers agreed, and the trial judge found, that the girl met the test for being NCRMD. This can occur if a judge finds that someone was incapable of appreciating the nature and quality of an act of omission or knowing that it was wrong. This state of affairs must also be caused by a “disease of the mind” and not, for example, self-induced intoxication.

With the assistance of another lawyer, the girl unsuccessfully appealed the NCRMD finding on the basis that she wasn’t told that it could result in her being kept in hospital indefinitely unless a review board was satisfied that she didn’t pose an undue risk in the community.

An NCRMD finding results in someone being dealt with in the hospital, rather than jail. The time in hospital, or being subject to conditions may be much longer than a regular sentence for the same offences.

Also on the show, the process for qualifying as a lawyer is discussed in the context of a student challenging a finding that they didn’t adequately complete a contract drafting assignment.

To qualify as a lawyer in British Columbia, someone needs to complete a law degree, article for 9 months, and then complete and pass a 10-week course called PLTC: the Professional Legal Training Course. Articling involves working with a senior lawyer to develop practical skills. The PLTC course also teaches and examines practical legal skills.

Finally, on the show, an unsuccessful judicial review by an Abbotsford police officer was dismissed following a series of unfortunate instances of misconduct that commenced with the officer meeting a “much younger female” in the course of his duties.

The misconduct included falsely claiming that the younger woman, and her daughter, were living with the officer so that they could take advantage of his medical benefits. This eventually resulted in criminal convictions for defrauding the insurance company.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts, or wherever you get your podcasts.

 

Automated transcript:

Legally Speaking Jan 20, 2022

Adam Stirling [00:00:00] It’s time for our regular segment with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. It is Legally Speaking here on CFAX 1070. Good morning, Michael. How are you?

Michael T. Mulligan [00:00:09] I’m doing great. Always good to be here.

Adam Stirling [00:00:11] Lots of interesting topics on the agenda today. We begin with a 13-year-old found to be not criminally responsible as a result of a mental disorder. Now you and I have discussed this in the past common parlance. We often hear terms like insanity defence thrown around. Now, of course, that’s not a proper term. How does all that work?

Michael T. Mulligan [00:00:30] Well, this case, I think, is a really good example of how the criminal justice system tries to deal with people whose underlying challenge is clearly one of profound mental illness. And just how hard it is in a system designed to deal with the sort of willful criminal conduct; somebody who’s got profound mental health challenges.

Adam Stirling [00:00:51] Yes.

Michael T. Mulligan [00:00:51] And this is a case that just came out of the Court of Appeal. You’re quite right involved a 13-year-old girl who had a court described as a history of neglect, family history of substance use and mental health issues, suicides; described, that she first came in contact with the mental health system when she was eight years of age and had numerous hospitalizations after she was ten for mental illness. And give you some idea of what that then produces, she had apparently eighty police contacts in the two years prior to the charges that wound up in courts.

Adam Stirling [00:01:24] Wow.

Michael T. Mulligan [00:01:24] That the Court of Appeal was dealing with that tragic background. She wound up being charged with a number of things, including mischief for throwing plates and cups and damaging a glass door at her group home, she stole a lighter from a corner store and tried to eat some shrubs on fire. She was then committed under the Mental Health Act, and it’s a separate thing people should know about. Even if somebody doesn’t commit any offence, a person can be involuntarily treated if the doctors believe them to be a danger to themselves or others. So, she was committed under the Mental Health Act, went to Children’s Hospital and then eventually to Ledger House, which is a youth mental health facility.

Adam Stirling [00:02:04] Yes.

Michael T. Mulligan [00:02:05] Where is she there, in a short period of time was alleged to have hit, scratched, and pulled the hair of a nurse and tried to kick a security guard. So, she was charged with assault for those things. All of that then winds up in court. And this is why it’s a good example of how those kind of mental health issues can interact in a challenging way with the court system. And the first thing that occurred in the court system was a concern about her fitness to stand trial, and that’s an assessment as to whether a person has just a basic understanding of what’s going on in the courtroom. Things like, you know, can you comprehend that’s the judge and that you were charged with a crime, right?

Adam Stirling [00:02:47] Yeah.

Michael T. Mulligan [00:02:47] And how do you want to plead? Can you communicate in the most basic way with your lawyer? And her lawyer was concerned that she may not even be fit to stand trial, and that resulted in a psychiatrist doing an assessment of her that identified a host of serious underlying problems, including childhood schizophrenia, complex disorders, attachment disorder, poly substance abuse misuse, drug seeking behaviour. Remember, this is a 13-year-old.

Adam Stirling [00:03:17] Wow.

Michael T. Mulligan [00:03:17] Significant abandonment issues with respect to both her family and the system. Not at all surprising, but about the test for being fit. Well, so she could understand that’s the judge, this is my lawyer. Those, you know, those basic elements. And so, she’s fit to stand trial. And then the issue became okay, well, now what? And there wasn’t, to be honest, it sounds like much doubt that she did these various things. Right, you know, through the cups and plates of food in front of a bunch of people. Probably not a great deal of, you know, doubt about whether she scratched or pulled the hair of the nurse at the psychiatric facility, right?

Adam Stirling [00:03:56] Yes.

Michael T. Mulligan [00:03:57] And so she pled guilty to those things, and it resulted then in an assessment as to whether she was, as you mentioned at the outset, not criminally responsible as a result of a mental disorder. And the idea there is that if somebody has a disease of the mind and it deprives them of the capacity to know, you know, whether what they’re doing is wrong, you know, it’s quite a high of quite a low threshold or high threshold, depending how you look at it. The idea is that we don’t punish the person criminally, but instead we can get they can have a verdict of not criminally responsible as a result of a mental disorder. Her lawyer, and the Crown, both agreed that that was the case for her, given this report from the doctor, about these profound mental health difficulties she had. And so, the judge concluded the same thing, and rather than being convicted, she was found to be not criminally responsible as a result of a mental disorder. And so, you might wonder, why is this in the Court of Appeal? Well, the reason it wound up in the Court of Appeal is that the young lady then realized that when you’re found to be not criminally responsible as a result of a mental disorder, you may be forever kept in the mental health system, potentially forced to remain in hospital.

Adam Stirling [00:05:23] Yes.

Michael T. Mulligan [00:05:24] Unless the review board concludes that you’re not an undue risk in the community

Adam Stirling [00:05:28] and the onus is reversed, right?

Michael T. Mulligan [00:05:30] Yes, she’d have to satisfy them that she’s not a risk, right?

Adam Stirling [00:05:35] Yeah.

Michael T. Mulligan [00:05:35] And so her appeal is based on saying, Look, nobody told me that I would rather have just been sentenced to jail, I may be in here forever.

Adam Stirling [00:05:43] Yeah.

Michael T. Mulligan [00:05:43] I may never, never be free of any of this, you know, for activities when she was 12 years of age, right? You could in theory, if you had somebody who had a profound mental illness, as this young lady clearly has, right, maybe multiple serious mental illnesses, given what was described by the doctor. She’s in jeopardy of potentially never being free. And so, her argument or her lawyer’s argument in the Court of Appeal was that she needed to have been informed of that at or before her lawyer took the position that the lawyer wasn’t opposing this finding of being not criminally responsible. And the lawyer, I think, indicated that he described to her that a doctor with her doctors would have to decide, right?

Adam Stirling [00:06:28] yeah.

Michael T. Mulligan [00:06:28] But unlike when somebody simply pleading guilty, there’s like a routine that a judge would ordinarily go through asking somebody like, you appreciate your admitting the elements of the offence you appreciate I’ve got the final say in terms of what sentence would be imposed, for the various things they would go through with the person to make sure they understand the nature of pleading guilty. The same doesn’t exist for a finding of being not criminally responsible as a result of a mental disorder. And so, her argument was this just wasn’t fair, right? I wasn’t told to me. I may wind up with restrictions on my liberty, forever, as a result of these, you know, actions which, while, not good, probably aren’t winding you up in jail for, you know, if you just sentenced somebody, a 13 year old with profound mental illness for doing these things, throwing things or wrecking a door, or even pulling hair or trying to scratch somebody’s, you might say, Well, how long are you going to hold that person in jail for? What would that sentence be? It’s certainly not going to be for a life.

Adam Stirling [00:07:28] No.

Michael T. Mulligan [00:07:29] or Indefinite, right? And so that was her argument in the Court of Appeal and the Court of Appeal looked carefully at everything that went on, but ultimately concluded that even though she wasn’t told of those things, based on the evidence that the judge had before her, that would have been the outcome, right? There is just significant evidence that she suffered from mental illness, disease of the mind as the legal term used for it, that deprived her of the capacity to know what she was doing was wrong, that she just met that threshold. And so even though she wasn’t told about that outcome in a clear way or that potential outcome of never potentially being free of that system, the Court of Appeal upheld the finding. And so, the result of this is that the young lady who obviously has profound challenges, with no surprise, she would have profound feelings of abandonment by everyone involved with her life.

Adam Stirling [00:08:32] Yeah.

Michael T. Mulligan [00:08:32] Your family history of substance disorder and suicide and mental health issues and you’ve been involved in since you were eight. The result is that she will be now required to take whatever treatment is imposed or directed for her, and she may indeed be held in custody, in a hospital facility, but potentially for the rest of her life, unless she’s able to persuade the review board that she’s not in undue danger. And so, the case as a whole number of elements of that would be sort of interesting that there’s that issue of fitness.

Adam Stirling [00:09:09] Yeah.

Michael T. Mulligan [00:09:09] And somebody who was originally detained because they were a danger to themselves and then ultimately this outcome. And, you know, we can all sort of think about whether you know, how we treat people that are suffering from profound mental health challenges, right? But for the criminal activity here, right, the throwing of cups and breaking the door and you know, the hair pulling and scratching of the nurse and so on, right? And well, in fairness, stealing the lighters and trying to light the shrubs on fire, you know.

Adam Stirling [00:09:39] Yeah.

Michael T. Mulligan [00:09:39] We would not forcibly detain somebody or force them to undergo treatment unless doctors were satisfied that they were, they remained a danger to themselves or other people. But once you have this kind of a finding, it subjects the person to treatment against their will and potentially confinement forever. And so, you know, it is certainly humane in the sense that, you know, we shouldn’t be criminally punishing people who act out as a result of a profound mental illness, particularly a child.

Adam Stirling [00:10:10] No.

Michael T. Mulligan [00:10:11] It can have a lifetime impact, and it’s hardly some, you know, get out of jail free card. In fact, for somebody who suffers from profound mental health difficulties, it could mean a lifetime of confinement. So spare a thought for the 13 year old, and hopefully doctors are able to help her, and she’s able to get to a spot where she doesn’t wind up in the hospital against her will for the rest of her life as a result of her acting out with the nurse or trying to light the shrubs on fire or throwing the food at a group home. And so hopefully they’re able to help her, and the review board eventually can be satisfied so that she doesn’t wind up spending her entire life in that system.

Adam Stirling [00:10:55] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, we’ll continue right after this on CFAX 1070.

[00:11:01] COMMERCIAL.

Adam Stirling [00:11:01] We continue with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking on CFAX 1070 Michael, what’s next?

Michael T. Mulligan [00:11:09] The next case deals with what’s required to become a lawyer and what happens if things go a little haywire while you’re trying to make that happen?

Adam Stirling [00:11:19] Well, that sounds interesting.

Michael T. Mulligan [00:11:20] And so the basics of it are, if you want to be a lawyer in B.C., you need to finish your law degree and then you need to article. And articling would ordinarily be a nine-month period of time when you would work under the supervision of a more senior lawyer so that somebody could get guidance and practical experience before they are set loose on the public. And then also, as part of that process, there is a course and a series of exams and assignments that have to be done that’s run by the Law Society, the lawyers regulatory body. And that, of course, is called PLTC stands for the Professional Legal Training Course. And so those are the requirements you’ve got to article law degree and then you’ve got to do that course and pass the course right, pass the elements of it.

Adam Stirling [00:12:10] Indeed.

Michael T. Mulligan [00:12:10] This case, which is working its way through the B.C. Supreme Court, involved somebody who had their law degree. They had articles and then they were doing this PLTC course. And one of the assignments, along with various other practical things you need to do during the course is to draft a contract, they want to make sure everyone is able to do that.

Adam Stirling [00:12:34] Yeah.

Michael T. Mulligan [00:12:35] And so the student drafted their contract and handed it in. And unfortunately, the instructor found it to be deficient in some unnamed way. And so, they failed the contracts part of it. Then things got a little worse because COVID hit and the PTLC Course kind of split up and disjointed. But they told the student, okay, you feel that you can try again. So, the student tried again, had the contract handed it in some period of time, went by, got the raspberry again, didn’t, didn’t, didn’t meet the requirements. And then indeed, they tried it a third time. And the third one didn’t pass. And so, by that time, the person had finished all of the vertically and everything else they’d passed, but he just couldn’t pass this contract assignment. Things started to go further off the rails when the there’s a body of the Law Society called the Credentials Committee, who would be in charge of deciding, you know, does somebody have the required credentials to become a lawyer? And that committee sent this unfortunate person a letter which was misleading and wrong. They said, well, if you failed this thing three times, therefore your articles or camp will be cancelled.

Adam Stirling [00:13:47] Wow.

Michael T. Mulligan [00:13:47] Which is just not how it works. So, they just got it wrong, which is, I guess, rather embarrassing for the Credentials Committee of the Law Society.

Adam Stirling [00:13:54] Yeah.

Michael T. Mulligan [00:13:55] And then what occurred ultimately is the student tried hiring a lawyer to help him with the contract or learning how to draft a contract that was unsuccessful. They couldn’t persuade the committee to let him try again because the rules only allow three tries. So, I guess you’d have to repeat the whole course again at some cost and delay. And so, the student has started a judicial review in the B.C. Supreme Court, asking a BC Supreme Court judge to review the, I guess, the contract assignment and the decision made by the Credentials Committee to say, sorry, you didn’t pass. You can’t start practicing law until you finish the PTLC course, I guess the second time. And so that hearing will be held at the end of the month, this month. And there was just a decision dealing with some of the procedural elements of that in terms of like what documentation did this person get. He wants to examine the head of the that committee to decide whether he was fit to be a lawyer or not. And I guess the decision about the contract’s assignment, and so we don’t have a final decision on it, but it’s a, I think, a good insight into what has to happen before somebody is allowed to start practicing law. And I guess at the end of the day, we can have some, think we can probably deduce that this person will probably not spend their career drafting contracts, but may be off to a good start in terms of litigation.

Adam Stirling [00:15:24] I was going to say they certainly have the spirit for litigation, it would seem.

Michael T. Mulligan [00:15:28] That’s right. So, whoever they are, and they don’t name them in the decision, they just have their initials. Probably not your guy for draughting a contract but may be just the ticket if you’re wanting to do some kind of a judicial review. So, we’ll have to wait and see what happens, whether he has to go and redo the course.

Adam Stirling [00:15:43] Very well. What else is on the agenda this week?

Michael T. Mulligan [00:15:46] The final case on the agenda is a judicial review of a decision of the B.C. Complaints Commissioner.

Adam Stirling [00:15:52] Yes.

Michael T. Mulligan [00:15:53] Involving a police officer from Abbotsford.

Adam Stirling [00:15:56] Mm hmm.

Michael T. Mulligan [00:15:57] And the police officer from Abbotsford has a terrible story of woe, much of which are all of which is of his own making and which he doesn’t dispute the underlying factual findings.

Adam Stirling [00:16:10] uh- oh.

Michael T. Mulligan [00:16:11] Essentially, what happened is he met, as described in the decision, a much younger woman.

Adam Stirling [00:16:17] oh-no.

Michael T. Mulligan [00:16:17] In the course of his work and started a relationship with her. Things started to go bad, however, when he added her and her child on to his medical services plan, claiming that she lived with him when she did not. That really got off the rails, and the officer wound up getting charged and convicted of defrauding the insurance company. The Blue Cross and the provincial insurance company for having made this false claim that this young lady was living with him when she was not, maybe he was overly optimistic. He got into further difficulty when he started using the police computer system to look up information about this young lady he was involved with. And then he got put on an order not to have contact with her because he had done that. And then he breached that order. All of this then resulted in this poor fellow being fired from his job, and that was upheld on appeal. And so, this was a judicial review of the decision to terminate the officer. And his argument on the appeal, was that they had failed to take into account, properly, that he was suffering from some mental health difficulties when he engaged in this unwise activity. And so, he was arguing that that should have been taken into account when deciding whether it was appropriate to fire him for all of these things, which again, he acknowledged he did. But there was some evidence that he had obsessive compulsive disorder. Maybe that explains looking things up on the computer all the time.

Adam Stirling [00:18:02] ohmm.

Michael T. Mulligan [00:18:02] And then a form of bipolar disorder. And so he was arguing that the way that the Police Act is interpreted, ought to take into account, sort of how the Human Rights Act would deal with somebody who has disabilities and argued that the in deciding that the appropriate penalty at the end of the day was termination, that failed to adequately take into account the fact that he had these mental illnesses, and there was evidence of the mental illness before the discipline authorities. So that’s the basis upon which you end up off in the B.C. Supreme Court. His challenges on the judicial review included, first of all, the long and unexplained delay in bringing the judicial review application. As we’ve seen in other local cases, the process for police discipline findings is a slow-moving process, right?

Adam Stirling [00:19:03] Yes.

Michael T. Mulligan [00:19:04] This officer had this much younger female back in 2012. And so, by the time eventually, the thing worked its way through the system with the, you know, convictions criminally for defrauding the insurance companies and then eventually discipline decision and final reports and so on. Right. We’re now, of course, sitting in 2022, and the decision came out in 2018. Right. The eventual one confirming his dismissal for all of this behaviour. And so, while the judge spent time analyzing the merits of the case, at least in a brief way, and found that, for example, even though he might have had these mental health difficulties and there was evidence that he did. That, he wasn’t fired because of his mental health, he was fired because he defrauded the insurance company, and he was fired because he improperly used the police computer system, and he was fired because he breached the order to stay away from this young lady. That’s why he was fired. And so, the judge found that sort of on the merits of it, his case was not well-founded. But in addition, the judge found that he had waited so long there was like an eleven-month delay before even filing the application for the judicial review. He was also not able to move forward on it, despite the perhaps modest merit of some of the arguments, simply because of the long delay. So, a series of unfortunate events and bad judgement. That was the outcome. One of the things the case does, I think, bring to mind, at least for me, you know, we’ve talked about this before in terms of other police disciplinary matters.

Adam Stirling [00:21:01] mm-hmm.

Michael T. Mulligan [00:21:01] Is how desirable it would be to try to get that process streamlined. Because, you know, some of the delays in here were very long. Right. And you have this process whereby there can be sort of investigation and decision and then off to the police complaints commissioner and your appointment of somebody to review it, you take a very long time. And while, we need to be sure that there’s, you know, appropriate procedural safeguards and that people are treated with procedural fairness and all of that. I think there are some really important work that can be done trying to get the process streamlined so that there can be a decision made that doesn’t take years to come to. Right. That’s not fair either to the officer, in many cases or the public, particularly if you’ve got people who are, you know, left in a state of limbo and not able to work for extended periods of time. So, some insight into some bad judgement and some insight into, I think, things that might be improved with the police complaints process and hopefully to speed things up. And I guess the other takeaway is be very careful when you meet that much younger person on duty. Don’t let that be an end to all of your good judgement unless you wind up like this poor fellow from Abbotsford.

Adam Stirling [00:22:22] Sound advice, indeed. Michael Mulligan, Appreciate the benefit of your knowledge and insight. As always, thank you so much.

Michael T. Mulligan [00:22:27] Thanks so much. Stay safe.

Adam Stirling [00:22:27] All right until next week.

Automatically Transcribed on January 24, 2022 – MULLIGAN DEFENCE LAWYERS