Once a Student, Always a Bankrupt? The Supreme Court Weighs In
The boundaries between student life and financial freedom come under scrutiny in this fascinating examination of a groundbreaking Supreme Court of Canada decision. When does your status as a “student” truly end? According to Canada’s highest court, returning to school—even part-time and self-funded—resets the seven-year countdown clock that protects government student loans from bankruptcy proceedings.
Through a split 6-3 decision, the court delves into the subtle nuances of legal language, including how the French version of Canadian law influenced their interpretation. The case presents a sobering reality for those hoping to discharge student debt through bankruptcy: even brief returns to education could extend the period during which these loans remain protected, regardless of how many years have passed since the original borrowing.
We also explore a high-profile Victoria murder case appeal that examines the legal distinction between different paths to first-degree murder charges. The court’s analysis reveals how planning and deliberation carry a different standard of participation than murders committed during other serious offences like forcible confinement—a nuanced difference that upheld the conviction in this tragic case, where two escaped prisoners killed a man in his own home.
The conversation concludes with an examination of what legally constitutes a “firearm” under Canadian law, determining that a handgun tested without its original magazine still qualifies as a firearm if it can function with alternative components. This technical but significant ruling emphasizes a weapon’s capability over its specific configuration at the time of seizure.
These cases collectively illuminate how judicial interpretation of seemingly straightforward legal language can profoundly impact real lives, whether determining the dischargeability of student debt, the severity of murder charges, or what constitutes a regulated weapon. Subscribe to hear more analyses of how the law affects everyday Canadians in unexpected ways.
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 17, 2025
Adam Stirling [00:00:00] It’s time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, it’s Michael Mulligan, Legally Speaking here on CFAX 1070. Afternoon, Michael, how we doing?
Michael T. Mulligan [00:00:10] Hey, good afternoon, I’m doing great, always good to be here.
Adam Stirling [00:00:12] Some really interesting stories on the agenda today. I’m reading a case from the Supreme Court of Canada to do with student loans and bankruptcy that grapples with, among other things, the question, do you stop being a student? And if so, when does that happen?
Michael T. Mulligan [00:00:27] Do we ever really stop being a student? Maybe not. So, this is a really interesting case. It just came out this morning from the Supreme Court of Canada, and it’s a case that originated in British Columbia. And the case involves how the Bankruptcy and Insolvency Act works. And I should say that in Canada, bankruptcy is a federal jurisdiction. It’s right there in the Constitution Act, even though most other sort of property-related things are provincial. And so that act, the Bankruptcy and Insolvency Act, the idea behind it is to allow people basically at some point, if they get in so far over their head, they’re never going to be able to pay off their debts to kind of get a clean break and get to start again. But we have some exceptions to that. And one of the interesting exceptions is an exception that prevents government student loans, government being important, I guess. Student loans are private ones that aren’t covered by this, but government student loans, the presumptively going bankrupt doesn’t wipe out a government student loan unless you’ve not been a student for seven years. Now the reason for that or one of the policy reasons for that might be of course, You know, if somebody, you wouldn’t want somebody, for example. You know going to school for many years becoming, I don’t know, a medical doctor. After many years of education, taking out huge student loans and then as soon as they finish university with no assets and the giant student loan debt just saying I’m bankrupt
Adam Stirling [00:02:00] Yeah
Michael T. Mulligan [00:02:01] And then having that all wiped away, you’re going to have the benefit of that education for a very long time. And so, the Bankruptcy and Insolvency Act provides that if somebody has been a student within the past seven years, your government student loans don’t get wiped out by bankruptcy. Now, sounds clear, but human affairs are, of course, complicated. And here’s this fact pattern with the British Columbia connection. The person who entered into a consumer proposal under the Bankruptcy and Insolvency Act had taken a bachelor’s degree between 1987 and 1994, got student loans for that, and then immediately did a teaching diploma, student loans for that. Okay, so far, so clear.
Adam Stirling [00:02:54] mm hmm.
Michael T. Mulligan [00:02:54] A number of years went by with working, and then the person decided to pursue a master’s in education and did that between 2006 and 2009. And for that, they took no student loans, okay? They then entered into this consumer proposal in 2013 to go bankrupt. So, here’s the question. It’s been more than, well more than seven years from the time this person took out the student loans to do their bachelor’s degree and their teaching diploma, but they’d gone back to school part-time, self-funded to do this master’s degree. Were they a student? Have they passed seven years? And the argument they made is they said, well, you know, this should be analysed from, you know different dates. And they argued, well, we’re talking about student loans for this degree from back in you know, the teaching diploma, that ended in 1995. And so that’s more than seven years from 2013. Why should the fact that they went back to do another degree mean that once again, the student loans have become exempt from bankruptcy? Well, that’s the issue that got to the Supreme Court of Canada. And it involved a statutory interpretation of the wording there. And the Supreme court of Canada split. It’s an example of tough decisions.
Adam Stirling [00:04:20] mm.
Michael T. Mulligan [00:04:20] The Supreme Court of Canada split 6-3, and three of the judges, in dissent, said, well, you know, that doesn’t make any sense, that the fact this person went back to school to do another degree, which they paid for themselves and didn’t borrow any more money, would then reset the time period. And they thought it could lead to absurd results. What if somebody did, like, a degree and then 20 years passed, and they still haven’t paid off their student loan for some reason. And then they went back to school for six months. Are they then captured by that provision? They said, that’s absurd. But the majority, the other six, didn’t agree. They analysed it based on what’s the wording of this legislation. They pointed out that the legislation uses the term student and loan singular, which doesn’t seem to comport with the idea there could be different time periods for different student endeavours. And the other interesting, thing that the supreme court and the majority pointed to is the fact that in canada Federal laws are all both in english and french and they are equally authoritiatve. Language is really subtle, particularly legal analysis and in this case the french version the language was more restrictive than the english language.
Adam Stirling [00:05:39] Interesting.
Michael T. Mulligan [00:05:39] Like in a related provision, the French version said the borrower would, translated to English, must not have been a student under the applicable law for the preceding number of years. And so, they said, well, that’s equally authoritative and that’s more restrictive. And so, the majority determined that, no, if you have become a student, whether full or part-time, and that the other interesting thing, this person who went bankrupt, they had been working and they did their master’s degree part- time, paying for it themselves, but that’s still student because it’s full or part-time. And so, the effect of this, is that even though it was well past seven years at the time of the bankruptcy, from the time the money was borrowed, the fact that the person went back to school to do the master’s degree meant that the student loans were exempt from the bankruptcy proceeding and they will have to be repaid. And so, while we all may be students for a very long time, that may be, have a real impact if somebody finds themselves in a position where they can’t pay their debts, presumptively those student loans are not going to be covered by bankruptcy proceedings. And so going back to school has a real impact, even if that’s for a short time, and even if you don’t borrow any more money, it means that those other loans are going to stick with you, according to the six judges from the Supreme Court of Canada. So that’s the latest this morning from the Supreme Court on how bankruptcy is affected by being a student.
Adam Stirling [00:07:09] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, will continue right after this.
[00:07:14] COMMERCIAL.
Adam Stirling [00:07:14] Back on the air here at CFAX 1070, Michael Mulligen with Mulligen Defence Lawyer, Legally Speaking, as we continue. What’s next on our agenda today, Michael? All right.
Michael T. Mulligan [00:07:23] Next on our agenda is a Victoria, notorious Victoria case, and an appeal decision on it. It’s one that I think many listeners would be familiar with this tragic case from 2019 where those two men broke out of William Head Penitentiary, and it eventually resulted in the murder of a man in his own home so just a terrible local case. Just to review some of those facts which will be important to this appeal decision, the case involved the man’s house being broken into and then it would appear that the people were in the home for an extended period of time throughout the day. And there was evidence in the homes of things including a Google search for one of their names on the person’s computer while they were at work and looking at local news reports to see whether there was information about the escape on there. Then eventually in the house various things along with the deceased was found with his hands duct-taped. Various things were found including two axe handles, two pairs of bloody gloves, two walkie-talkies and various other things. And the trial proceeded with one of the men choosing to plead guilty after the trial had started, but the other man continuing with the trial. That man, as it happened, was one of them who was, when he was arrested, a day later was found wearing the ball cap of the deceased and carrying his backpack. Not not good. So, the appeal from the conviction for first-degree murder Turned on an analysis of the judges’ instructions to the jury which is usually how criminal appeals work in jury trials because juries don’t come back and give reasons, they just come back to give a verdict.
Adam Stirling [00:09:10] Yeah.
Michael T. Mulligan [00:09:11] And one of the things that a judge will ordinarily tell a jury when they’re giving them instructions like summarising the evidence and telling and what the law is. Is the judge will often tell the jury look you know i’m but you’re the judge of the fact i’m the judge of the law but you know make sure you apply the law as i describe it to you Because if i’m mistaken if i am wrong and you do what i’m saying that could be fixed on an appeal but if you do something else we can’t fix that. That’s one of the things that judges will tell juries right listen to me on the law.
Adam Stirling [00:09:38] Okay.
Michael T. Mulligan [00:09:40] And and so Appeals are often an analysis of what did the judge tell the jury to do and was it correct? Did they give them proper instructions? Because we assume the juries are going to do what they’re told and follow the laws the judge laid out for them. And the other interesting element of this, some people may not know about, but most people would be familiar with the idea that in a criminal case a jury has to be unanimous. They all have to agree on the verdict, guilty or not guilty. But juries don’t have to agree on how they reach their decisions. And crown counsel are permitted to have more than one theory of the case, which is also really interesting.
Adam Stirling [00:10:20] Yeah.
Michael T. Mulligan [00:10:21] And here the crown had more than one theory. The the crown’s first central theory was the idea that these two men committed the murder together.
Adam Stirling [00:10:32] Yes.
Michael T. Mulligan [00:10:32] And they were both participants in the killing, looking at things like, hey, there are two axe handles and there are pairs of bloody gloves and all of this. And the theory was that they did it together, and their primary theory, was it was first-degree murder because it was planned and deliberate. Most people are familiar with that idea too, right, that’s the most common way that a murder can go from second-degree to first-degree. The idea that it’s planned and deliberate. We view that as more serious, rather than something kind of happening on the quick. It’s the most serious thing. If you sat around, schemed about it all day, got your axe heads ready, got your gloves ready, and then did something, right, that’s more serious than just, you know, something snapped.
Adam Stirling [00:11:17] Yeah.
Michael T. Mulligan [00:11:17] So that was the first theory that the Crown argued to the jury, and the judge instructed them on that but the Crown had a backup theory. Their second theory was a first-degree murder was okay well if you’re not persuaded that the or not persuaded beyond a reasonable doubt that these two people had planned together the murder they both done that then there’s another way either it’s more than one way you can get to first- degree murder and one of the other ways you can a murder can become first-degree rather han second is if the murder is caused by someonbaoy while they are also committing another offence and there’s a list of other offences. They include things like hijacking an aircraft, Sexual assault or the one relevant here kidnapping or forcible confinement. And the reason that and that’s a different way a murder can become first-degree rather than second and the evidence the crown’s alternate theory was well Even if you are not satisfied that this man was involved in planning and deliberation because the, there was some evidence that was less strong against him. Like for example the man who plead guilty, He was the person whose name was being searched on the computer that day. And his fingerprints were found in the house the other man no fingerprints in the House and no indication He was searching on the computers. So, if you know one of the arguments made by the defence was maybe he’d been outside maybe been somewhere else in the walkie-talkie you know, maybe he’d only showed up there after the murder had occurred.
Adam Stirling [00:12:50] Yeah.
Michael T. Mulligan [00:12:50] But the Crown’s alternative theory for this man was its still first-degree murder on the basis that the man had been, it would appear clearly, forcibly confided. He’s duct taped.
Adam Stirling [00:13:03] Yes.
Michael T. Mulligan [00:13:03] And so the Crown argument was, well look, even if you’re not persuaded that the man who continued on trial was involved in planning and deliberation, you know maybe he had been outside, maybe was on the walkie-talkie, who knows? You know, if you’re not persuaded by our argument that he likely did it because there are two of these things in there, right? Then you should still convict him of first-degree murder on the basis that he caused the man’s death while there was a forcible confinement going on. And so, the judge provided that to the jury as an alternative. Well, if you’re not satisfied, it was planning and deliberation by this man as well, then you need to go on to analyse that theory of it. Now, here’s the interesting thing about that different way you can get to first-degree murder. When you, that subsection that deals with how you can get to the first- degree murder while committing other offences, uses the language that the death is caused by that person while committing or attempting to commit an offence under one of the following sections, like the forcible confinement.
Adam Stirling [00:14:02] Yeah.
Michael T. Mulligan [00:14:03] But that language caused by the person has some legal meaning. And the Supreme Court of Canada has said Well caused by that person because that language is used there that means something more than just like some minor contributing factor. The parliament seems fit to use the language caused by the person the crown for that alternative theory of well this was well as forcible confinement requires proof of more than just, while you were kind of standing by the door or something. You know what I mean? You have to be you caused it in a significant way. And that’s sometimes referred to as like it’s sort of an enhanced degree of participation being required. And the argument made by the defence was, well, that’s all fine and well that you described that with respect to that alternative theory the Crown advanced. And we don’t know which theory the jury might have gone with. Maybe some with one, maybe some with the other. We’ll never know. The argument made on the appeal was, well, look, that same idea of there needing to be caused by that person should be applied to that the usual way that you would get to first degree murder, planning and deliberation. And so the argument made by the defence on the Appeal was that same kind of higher degree of participation, right, the sort of really caused by the person, not just some minor contributing factor to what happened, should have been What the jury was told to do when deciding whether the where there was first degree rather than second-degree murder committed here on the basis of planning and deliberation. Now that was a novel argument, I should say. as the Court of appeal pointed out there is no prior case that’s decided that and so the court of appeals went on to analyse this sort of principles why is it That we have that Sort of higher degree of participation. And they analysed it in contrast with that and how that fits in with other things like the idea of a person being a party to an offence generally. And what is the, why was that interpreted that way? And ultimately the court of appeal found that even though the judge did not tell the jury That for planning and deliberation there has to be you know Caused by this or higher degree of participation. The Court of Appeal found that was quite proper. And because those two sections, right, one is subsection three of section 231, the other is sub section five of section 231, only in that second one, the one that makes it first degree if you cause the death in the course of committing those other offences, only on that occasion has parliament used that term caused by the person. And so, for that reason, there’s no necessity that there’d be sort of an enhanced degree of participation that would apply to that, the idea of planning and deliberation. And so, while it was a novel argument, and that was really the only focus of the appeal. That was sort of a narrow focus on that narrow legal issue about how the judge instructed the jury, that that wasn’t enough to cause there to need to be a new trial and that the instructions given by the judge were correct. Because those two different ways you can get to first-degree murder one has that higher provision and the other doesn’t aso that’s why there will be no new trial in that local case, the tragic case of this man Who was murdered in his in his own home?
Adam Stirling [00:17:33] Alright, we’ve got 90 seconds remaining. How shall we spend them?
Michael T. Mulligan [00:17:36] Sure, final one’s an interesting brief decision also in BC, out of BC. That deals with the, actually, so it relies on a BC case. It’s another Supreme Court of Canada judgement that deals the issue of what is a firearm? What is necessary for a thing to be a firearm under the criminal code? The fact pattern is, car was stopped, gun is found in the vehicle. It’s a handgun. The handgun at the time had a magazine in it and ammunition. The police, for reasons unexplained, didn’t send off the magazine or ammunition to be tested. They only sent the handgun off to be tested. So, the lab gets the handgun and they test it using their own magazine and ammunition, it works. But at the trial, the expert from the lab testified about whether this was a firearm. Says that look This particular handgun has a safety feature that can be extremely difficult to fire if you don’t have a magazine inserted into it.
Adam Stirling [00:18:38] hmm.
Michael T. Mulligan [00:18:38] And so the trial judge acquitted and so what is not satisfied, is this thing is a firearm because of the definition of what that is in terms of the device being able to serve operated fire. But on appeal and then eventually to the Supreme Court of Canada they concluded that wasn’t the correct approach, bearing in mind that there was some other evidence about the fact that this thing could function or being adapted to function readily, including the fact the man when he was arrested made a comment about having previously used the firearm at a gun range, and so that was some indication that the thing worked even without having tested the magazine, and given the fact, the way that definition of firearms works in the criminal code. The fact that it was able to work with a magazine from the testing facility was enough and that did meet the definition of what a firearm is. So that’s the latest from the Supreme Court of Canada on what a firearm is, even if they don’t test the thing with the actual magazine or the Ammunition that it was found with.
Adam Stirling [00:19:39] Michael Mulligan with Legally Speaking during the second half of our second hour Thursday. Michael, thank you so much. Pleasure as always. Thanks so much.
Michael T. Mulligan [00:19:45] It’s always great to be here.
Automatically Transcribed on April 17, 2024 – MULLIGAN DEFENCE LAWYERS