Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – Discussing a report from the Legal Services Society on one of the impacts of inadequacy legal aid funding, as well as the BC Attorney General suing the Alberta Attorney General over Bill 12 that purports to allow the Alberta government to “turn off the taps” in response to BC opposition to the expansion of the Kinder Morgan Trans Mountain Pipeline.

In 1992 a special tax was added to legal service in British Columbia for the purpose of funding legal aid.

As a result of the BC government continuing to divert more than half of the money being collected pursuant to the spacial tax, the Legal Services Society, which provides legal aid, continues to be dramatically underfunded.

In 2016 the BC government collected $193.1 million from the special tax but only provided $72.6 million to the Legal Services Society. Of the $72.6 million, $14.7 million of this was actually a transfer from the federal government to the province of BC to help pay for legal aid.

As a result, in 2016, the BC Government collected $135.2 million more from the special tax on legal services than it spent on legal aid.

In 2018, the BC Government increased legal aid funding by only $4.8 million, but continued collecting all of the money from the special tax.

The diversion of the tax revenue, and resulting underfunding, has created three serious problems:

1. The financial threshold to receive and legal aid assistance of any kind is so low that many people requiring help are both ineligible, and unable to afford to hire a lawyer. For a single person facing a criminal charge, the income cutoff is $1,580 per month. Someone with a full time, minimum wage, job would make too much money to receive legal aid.
2. Many areas of law that were previously covered by legal aid have been eliminated such as poverty law, and most areas of family law. These cuts have had a disproportionate impact on women.
3. Even where someone makes so little that they are eligible for help, the amount of money available to hire a lawyer is so low that it can be difficult to hire an experienced lawyer, or for any lawyer to spend the time required to deal with the legal problem.

The report from the Legal Services Society addresses the inadequacy of the amount of money available to hire lawyers to assist people. The amount of money the Legal Services Society is able to pay lawyers has increased only once since 1991 and has remained unchanged since 2006.

The report points out that while the BC Government has increased the amount is pays lawyers to advocate for the apprehension of at risk children, and to prosecute criminal cases, has increased by approximately 60% from 2006 – 2018, there has been no increase in the amount paid to defend these same cases over this same period of time.

By way of example, the report points out that the amount of money available to hire a lawyer to conduct a judicial interim release (bail) hearing in an ordinary criminal case is $100. The preparation for, and conduct of, a bail hearing can take several hours.

Where hourly fees are paid, they are ordinarily $84 – $92 per hour and are often the amount of time that is paid for is significantly less that what is actually required to solve a legal problem.

Where a lawyer, who is prepared to assist at legal aid rates, is found they often end up working for less than their hourly overhead costs and are not paid at all for many things required to adequately represent a client.

Requiring low-income people to depend on lawyers proving services on a charitable basis is not apropriate, particularly where more than half of the money being collected to pay for legal aid is not being used for its intended purpose.

Also discussed in the program is the lawsuit that the Attorney General of British Columbia commenced against the Attorney General of Alberta, challenging the constitutionality of Alberta Bill 12 which purports to permit the Alberta government to “turn off the taps” on fuel exports to British Columbia in an effort to punish British Columbia for opposition to the Kinder Morgan Trans Mountain Pipeline expansion.

The Statement of Claim, filed in the Alberta Court of Queens Bench, makes extensive reference to the various statements made by the Alberta Premier, and other government officials, with respect to the purse of the impugned legislation. These include a tweet by the Alberta Premier that this Bill 12 is intended to “impose serious economic consequences on British Columbia.”

Because inter-provincial tariff like barriers are prohibited by the Canadian Constitution, the various public statements referenced in the Statement of Claim may serve to undermine its constitutionality. Even if the purpose of the legislation might not be clear from the wording of Bill 12, the public statements referenced in the Statement of Claim make its purpose clear.

The BC Attorney General is asking the Alberta Court of Queens Bench to declare Bill 12 to be inconsistent with the Constitution of Canada and of no force and effect.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at 10:30am on Thursdays.

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – Discussing the expansion of the DNA Data Bank to include DNA from missing persons and various specialized Provincial Courts including the Drug Treatment Court in Vancouver, Integrated Court in Victoria, and First Nations Court.

Until recently, only people convicted of various criminal offences could be ordered to provide DNA samples for inclusion in the Canadian DNA Data Bank. Some convictions, such as those for sexual assault or murder, are categorized a primary designated offences. If someone is convicted of a primary designated offence, a judge is required to order the person to provide a DNA sample. For other offences, a judge has discretion concerning the requirement to provide a DNA sample.

Recent change to the DNA legislation will permit DNA from missing persons to be added to the Data Bank. Where no DNA is available, the DNA from close family members could be used. DNA from unidentified deceased people will also be added. The hope is that missing persons might be identified to provide closure for families.

The DNA regime is different from the legal regime that authorizes fingerprints and photographs to be taken by the police. Unlike with DNA, the fingerprints and photographs can be collected from people charged, but not convicted, of indictable offences.

Also discussed are some of the specialized BC Provincial Courts. These include Drug Treatment Court in Vancouver, Integrated Court in Victoria, and First Nations Courts in Duncan, Nanaimo, North Vancouver, and Kamloops.

Drug Treatment Court in Vancouver deals with individuals who commit offences to support their addition to hard drugs including cocaine, heroin and other opioids, or crystal methamphetamine. It requires participants to engage in drug treatment and testing in combination with support form health and social service agencies. Individuals in the program appear regularly in court to monitor their progress.

Victoria Integrated Court operates with the support of outreach teams comprised of police, social workers, mental health professions and probation officers. The target demographic are individuals who often have a combination of mental health and addiction issues who also often lack stable housing. The provision of proactive, intensive, community support and supervision can be both helpful for the individuals involved, as well as reduce the number of emergency room admissions, police dispatches, and other expensive interventions that would otherwise result.

First Nations Courts permit First Nations Communities to participate in the sentencing process for aboriginal people.

Aboriginal people make up approximately 3% of the Canadian population. In 2016, 26% of men admitted to provincial or territorial jails were aboriginal. The overrepresentation of aboriginal women is even more profound: 38% of women admitted were aboriginal.

First Nations Courts are intended to support rehabilitation, reduce recidivism, and recognize the unique circumstances of aboriginal offenders.

All of these specialized courts deal with sentencing, rather than trial, and are only engaged if an individual chooses to participate and plead guilty.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at: 10:30am on Thursdays.

Victoria Lawyer Michael Mulligan on CFAX 1070 – Discussing the Expungement of Historically Unjust Convictions Act and the case of Everett George Klippert.

Bill C-66, the Expungement of Historically Unjust Convictions Act, was introduced the same day as Prime Minister Trudeau issued an apology to LGBTQ people in the public service, RCMP, and military who were systematically persecuted.

The Expungement of Historically Unjust Convictions Act will permit people, or their families, to apply to the National Parole Board for expungement of convictions for Criminal Code provisions that criminalized consensual sexual activity.

A notorious example of the application of these Criminal Code provisions was the case of Everett George Klippert. In 1966 he was convicted of gross indecency for engaging in consensual sexual activity with other men, was declared a “dangerous sexual offender” and given an indefinite jail sentence as a result a court concluding that he “had shown such a failure and was likely to cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses or was likely to commit a further sexual offence.”

This conclusion was based in part on the opinion of two psychiatrists who found that Mr. Klippert was “incurably homosexual.”

The designation as a dangerous sexual offender was upheld by the Supreme Court of Canada on a 3 – 2 split decision

Gross indecency was removed from the Criminal Code in 1969. The legislation was introduced by Pierre Elliott Trudeau.

Mr. Klippert remained in jail until 1971.

The operation and effectiveness of the Expungement of Historically Unjust Convictions Act, pardons, and criminal record suspensions are discussed in the show.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at a new time: 10:30am on Thursdays.

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing proposed changes to impaired driving laws for both drugs and alcohol.

Bill C-46 has passed third reading and, if it becomes law, will make a number of significant changes to impaired diving laws in Canada.

Currently, before a police officer is permitted to require a driver to blow into an alcohol screening device, they are required to have reasonable grounds to suspect that the driver have alcohol in their body. The proposed changes would permit alcohol screening tests to be required without any grounds to suspect a driver has alcohol in their body.

In some parts of the United States, where random blood alcohol testing has been authorized, courts have required police to publish in advance how and where testing will be conducted in order to guard against testing being demanded on the basis of discriminatory factors such as race.

In addition, as is currently the case for alcohol, new offences would be created if a driver has specified levels of THC in their blood. This is proving to be controversial as there is no scientific consensus with respect to what levels of THC would actually impair a person’s ability to drive.

Frequent users of marijuana could have the prohibited levels of THC in their blood for days after they last used marijuana. They would be subject to criminal prosecution if they drove during this time.

It is likely that the proposed legal changes will result in legal uncertainty with respect to both the constitutionality of random breath testing as well as THC limits that may not correspond with impairment.

Listen to the show here.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 at a new time: 10:30am on Thursdays.