Harold Backer released on $50,000 bail

Victoria Lawyer Michael Mulligan comments in a story by April Lawrence on CHECK news:

Nobody was answering at the Chemainus home where Harold Backer has been ordered to stay while awaiting trial on fraud charges.

The home belongs to his mother, who told CHEK News by phone she is glad to have her son home to help her.

When asked where he disappeared to for a year and a half, she said she couldn’t tell.

Early Monday evening a scruffy and gaunt looking Backer walked out of the Victoria courthouse after more than two weeks in custody.

He was granted $50,000 bail, and was picked up by his son, refusing to answer any questions, including where he was or why he turned himself in.

It was that act, of coming forward to police, that one criminal lawyer says is likely the reason the 54-year-old was released.

“Where you have an individual who has no previous record, who turns himself in, those would be important considerations for a judge in deciding whether a person needs to be held in custody before they’ve had a trial,” said Michael Mulligan, a criminal lawyer with Mulligan, Tam Pearson in Victoria.

Backer has to abide by 14 conditions while out on bail — they include staying at the home in Chemainus and following a curfew from 11 p.m. to 6 a.m., he has to report to a bail supervisor once a week, he can’t trade any securities or work as an investment advisor and he had to surrender all travel documents including his passport.

Mulligan says for the most part, Canada’s bail system of conditions and supervision is effective.

“If you kept everyone in jail waiting for their trial that’s going to make the presumption of innocence pretty hollow sounding for someone who’s alleged to have committed an offense,” said Mulligan.

The former Olympian is being represented by a criminal lawyer from Vancouver who isn’t commenting on the case for now.

Backer is facing two charges of fraud over $5000 dollars, and is also the subject of a civil suit.

One of the alleged victims tells CHEK News the images of Backer emerging from the courthouse show he is “suffering”.

Harold Backer will return to court June 5.

Special Prosecutor for BC Political Donations and Legal Aid Funds Diverted on Legally Speaking

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the appointment of a special prosecutor, at the request of the RCMP, to deal with the investigation of political donations in BC. In addition, new information reveals the diversion of $135.2 million from the provision of legal aid in 2016.

In British Columbia there are no limits on the amount of money that can be donated to a political party. Donations are permitted from corporations, unions and even foreign corporations.

One of the few legal requirements for political donations in BC is that they not be indirect. A person may not make a donation in their name only to be reimbursed by someone else. The reason for this rule is that while donations are unlimited, it is supposed to be possible to look up who gave how much to which party so that there can be some scrutiny of improper influence or government decisions that benefit donors.

You can search BC political donations here.

When lobbyists, or others, make substantial donations in their own name and are then secretly reimbursed by their clients it becomes much more difficult to determine if the donations resulted in some improper benefit. When you search the database of donations, only the name of the lobbyist would be revealed. Since it was uncovered that donations were being made and recorded in this way by a Globe and Mail investigation, Elections BC asked the RCMP to investigate the matter.

Pursuant to an RCMP request the special prosecutor was appointed to provide legal advice during the investigation, decide if charges should be approved, and then prosecute any charges.

In other legal news, a freedom of information request just revealed the amount of money that was diverted from the legal aid system in British Columbia in 2016.

British Columbia has a special tax on legal services that is supposed to pay for legal aid in the province. The tax was originally introduced by the NDP when they last formed government. Soon after the tax was introduced is began collecting slightly more money than the NDP was providing to the Legal Services Society, which administers legal aid in BC. As a result, when in opposition, the BC Liberal party was extremely critical of the NDP calling it wrong that money collected for the purpose of providing legal aid for the poor would be spent on other things.

Once in government, however, the BC Liberals dramatically cut the legal aid budget but retained the special tax on legal services. The amount of money being collected but not used for legal aid increased every year since.

A Freedom of Information request just revealed how much money was collected pursuant to the special tax in 2016: $193.1 million.

In 2016, the BC Government 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.

As a result, thousands of people in need to legal assistance received no help.

Listen to the show here:

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX1070 Thursdays at 2:00pm.


Christy Clark false claim of NDP hacking – Legally Speaking w. Michael Mulligan

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the legal implications of Christy Clark making false claims that the NDP hacked into the BC Liberal web page.

John Horgan categorically denied the allegation and advised that he had consulted a lawyer concerning a possible civil actions for slander.

The episode is discussed in the context of former premier Vader Zalm being successful sued for $60,000 by  Ted Hughes for false claims made a book written by Vander Zalm.

While MLAs cannot be sued for making defamatory statements in the legislature they enjoy no such privilege for statements made elsewhere. False statements that damage someones reputation are actionable. Repeating the statements can aggravate damages, while retracting them and apologizing can mitigate the damages.

Independent MLA Vicki Huntington later advised that the BC Liberal web site had no password protection and that private donor information was accessible by simply clicking on a link.

Christy Clark has now apologized for her false claim of NDP hacking and promised to improve security on the web page.

Also discussed on the show are reports that Esquimalt Mayor Barbara Desjardins plans to seek a nomination to run for the BC Liberals in the next provincial election and how the forthcoming report with respect to suspended Victoria Police Chief Elsner may impact her.

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00pm.




Michael Mulligan: Prescription heroin could save lives

Times Colonist option piece: Prescription heroin could save lives



How to immediately improve Victoria Safe Consumption Sites – Michael Mulligan

Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing how to improve Victoria Safe Consumption Sites immediately by utilizing the federal Special Access Program.

755 people died of drug overdoses in British Columbia from January to November 2016.

 One of the principle reasons for this large number of overdose deaths has been the increasing provenance of fentanyl: an opioid 100 times more powerful than heroin. Fentanyl is often substituted for, or added to, other illegal drugs.

 A single envelope of pure fentanyl is enough to produce thousands of pills and tens of thousands of dollars in profit. 1kg of fentanyl, which can be purchased online for less than $100,000, is enough to produce 1 million pills that can be sold for $20 each. 

It’s unrealistic to think we are going to prevent such a concentrated substance from entering the country when there is an enormous profit motive. Long experience has shown us that we are not able to do so even with much less concentrated drugs.

Fentanyl overdoses occur because the original substance, or pills that are produced from it, are of varying strength. Because the substance is so potent even a small variation in concentration can cause death. Because the substance is produced illegally it is not subject to any quality control and variations in the amount of the active ingredient is a certainty.

For people addicted to opioids such as heroin or fentanyl, their daily existence typically involves the commission of property offences, or the sale of their bodies, in a desperate effort to secure enough money to purchase more drugs and avoid the pain of withdrawal. The impact of these activities, along with the corruption and criminal organizations they foster, are the costs we all pay for of our failed efforts to solve this problem.

Safe consumption sites reduce the number of deaths by allowing antidotes to be administered more quickly once people overdose and by providing clean needles to reduce disease transmission. As currently operated, however, they are a half measure.

The premise of a safe consumption site is that people addicted to these substances bring their own drugs, of unknown strength, purchased with money often obtained by crime, to consume.

On September 19, 2016, the federal government reinstated a program that permits doctors to apply for special access to prescribe pharmaceutical-grade heroin to people who are severely addicted.

The Special Access Program requires an application to be made by a doctor, or other medical practitioner, for special permission to prescribe the drug where a patient has a serious or life-threatening condition, such as a serious opioid addiction, where other treatments have failed, are unsuitable, or are unavailable.

Permission to prescribe pharmaceutical-grade heroin can typically be obtained within 24 hours of submitting the application to do so. For people suffering from a chronic condition permission can be granted for up to six months at a time.

Currently Island Health staffs safe consumption sites in Victoria with a paramedic, tasked with resuscitating people once they inevitably overdose on illegally optioned drugs.

Island Health should also staff the consumption sites with a doctor to assess people and make applications, in suitable cases, for inclusion in the Special Access Program. Rather than administering naloxone to people overdosing on illegally obtained drugs, the currently assigned paramedic could help with the applications and monitor the use of the legally obtained, safer, pharmaceutical-grade heroin.

Operating safe consumption sites in this way would save lives and reduce the property crime caused by people attempting to obtain money to purchase dangerous drugs illegally.

Communities surrounding safe consumption sites, operated in this way, would not have to deal with a concentration of drug trafficking and property crime.

The profit motive to import and manufacture dangerous illegal drugs would be reduced as people provided with safer prescription drugs would no longer be buyers. 

It would also reduce the sex trade as this activity is also driven by people desperately trying to earn money to pucrases drugs illegally.

Once people who are severely addicted are stabilized, and no longer spending their days trying to obtain drugs illegally, there would be an opportunity to encourage and provide detox and drug treatment.

Finally, operating safe consumption sites in this way would be lawful. While the federal government has introduced legislation that will eventually make it easier to obtain permission to open a safe consumption sites where people consume illegally obtained drugs, this is not yet in place and the sites in Victoria enjoy no exemption from federal drug legislation. At least in theory, operating a safe consumption sites operating without such an exemption may amount to being a party to offences pursuant to the Controlled Drugs and Substances Act.

Listen to the show:

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.


Cowichan Valley Unable to Stop Contaminated Soil Dump – BC Court of Appeal

imageVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the British Columbia Court of Appeal decision concluding that the Cowichan Valley Regional District does not have jurisdiction to stop contaminated soil from being used to fill in a rock quarry.

The Court of Appeal decision turned on the definition of a “mine” pursuant to the Mines Act and whether filling in the hole created by quarrying rock constituted mining. The court concluding that quarrying rock was mining and that remediation of a quarry was also part of mining. Accordingly Cobble Hill Holdings Ltd. was entitled to rely on permission granted by the provincial government to continue filing the rock quarry in with contaminated soil.

The site in question is part of the Shawingan Lake watershed.

In 2013 the provincial Ministry of the Environment granted permission for the company to bring contaminated soil to the site to fill in the quarry. The contaminated soil is put into synthetically-lined cells to “permanently encapsulate” it before it is covered with clay and clean soil.

In addition the company has constructed an 1,800 square meter asphalt-paved pad for the purpose of treating contamineted soil before depositing it on the site.

The Court of Appeal found that the Cowichan Valley Regional District does have jurisdiction to prevent the company from treating the contaminated soil on the site using the asphalt-paved pad pursuant to its authority to regulate land use pursuant to the Local Government Act.

Listen to the show here:

Michael Mulligan - album art v1.jpgMichael Mulligan is a Lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.


Fentanyl crisis: Are harsher sentences the answer?

a3-boechler-jpgVictoria lawyer Michael Mulligan commenting in Times Colonist story by Katie Derosa on the criminal justice approach to fentanyl. Are harsher sentences the answer?


CHEK News – Kelly Ellard expecting a baby in jail

759126-babies-in-jail-1Victoria lawyer Michael Mulligan on CHEK News with April Lawrence discussing the mother and baby program in the federal correctional system that permits babies to stay with mothers who give birth when in jail.

Evidence in a court case that reversed the cancelation of a similar program in the provincial correctional system established that permitting babies to remain with mothers improved outcomes for both. Babies were able to be breastfed and bond with their mothers. Mothers who were permitted to keep their babes were also less likely to reoffend when released.



Creep Catcher type video creates personal and criminal risk

Victoria lawyer Michael Mulligan comments on a creep catchers style video that put the producer at personal and criminal risk.

Mayor Helps defends decision to continue pay for suspended Police Chief Elsner

vka-elsner08397-2-jpgVictoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall. Victoria Mayor Lisa Helps defends her decision to continue paying suspended police chief Elsner more than $200,000 a year.

Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins both voted to continue paying suspended Victoria Police Chief Elsner’s full salary, and legal expenses, despite the fact that he has been suspended by a retired judge pursuant to an investigation ordered by the Police Complaints Commissioner.

Investigations concerning Elsner started with an inappropriate online relationship he had with a subordinate’s wife and have now expanded to include investigations into whether he attempted to interfere with witnesses or delete evidence.

Meanwhile, Elsner has filed a court application to both stop, and keep secret, the details of the investigations into his conduct that have been ordered by the Police Complaints Commissioner.

The relevant provisions of the Police Act are discussed. Section 110 (5) of that act permits the pay and benefits of the police chief to be stopped as a result of his suspension. The proper test for this is whether it’s in the public interest to continue paying him.

If Elsner’s pay was suspended he would receive money in the event that he is exonerated. On the other hand, there is no provision to recover money payed to him in the event that he is found to have engaged in misconduct.

In addition to voting to continue paying Elsner, Mayor Helps and the Police Board have taken the position that the Police Complains Commissioner’s investigations should be stopped and that a letter of reprimand placed on Elsner’s file by the Police Board was sufficient.

Elsner is paid in excess of $200,000 per year but is applying to court in an attempt to keep the details of his employment contract secret.

Michael Mulligan - album art v1.jpgMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 2:00.