Legally Speaking – Court Camping Sheriff Shortage and Ghomeshi

0204ghom2Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking. A busy week for legal events. The Provincial Government is considering new homeless shelters and the legal process to remove the people currently camping on provincial land next to the Victoria courthouse is discussed.

In addition, trials have been interrupted twice over the past week as a result of an inadequate number of sheriffs and court clerks. The underlying issue is a failure to pay court staff adequately so as to attract and retain sufficient staff. The top rate of pay for sheriffs in BC is approximately half of that available for municipal police officers.

Despite promises from the premier dating back to 2011, the absence of adequate court staff continues to impact on the proper functioning of the justice system.

Finally, the Gomeshi trial is discusses. The first complainant was subject to a devastating cross examination when it was revealed that, contrary to her earlier evidence, she sent flirtatious emails to Mr. Gomeshi after the alleges assault. The email messages included a photograph of the complainant in a bikini. As a result of a ban on publication of evidence that would identify that complainant the trial judge refused a media application to release the photograph.

Following reports of the cross examination of the first complainant, the second complainant, Lucy DeCoutere, also revealed, for the first time, her email communications with Mr. Gomeshi. This delayed the start of her evidence as the Crown and defence required time to review the new information she disclosed.

Mr. Gomeshi also released a series of photographs, including the one associated with this post, that allegedly show him with Ms. DeCoutere with Mr. Gomeshi after the date of the alleged assault. Ms. DeCoutere, an airforce captain and actor, previously applied to lift the ban on publication of her identity. She has also been cross examined on differences in the account she provided to different media outlets as well as her failure to disclose sexually suggestive email communication with Mr. Gomeshi prior to the trial commencing.

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. CFAX 1070 – Legally Speaking is live Thursdays at 11:00am.


Human Rights Tribunal – First Nations Children

hi-aboriginal-students-852Victoria Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking – discussing the Canadian Human Rights Tribunal decision that the federal government discriminated on the basis of race and or national or ethnic origin by providing inadequate child and family services to First Nations children living on reserve.

First Nations children living on reserve face significant challenges. There are approximately three times the number of First Nations children in government care now than there were at the height of residential school in the 1940s. Aboriginal children are more than twice as likely to be placed in out of home care than other children.

In this context First Nations child and family services agencies are inadequately funded in almost every area of operations.

One of the unfortunate manifestations of the formula used to determine funding for child and family services on reserve is that while funding for services designed to assist families care for children are fixed and inadequate, once a child is apprehended this is not the case.

This formula provides an incentive to remove children form their homes as a first rather than last resort. In some cases, parents are asked to give up their children in order to permit medical or other assistance to be funded. This is contrary to the accepted social work approach that involves applying the least disruptive measures that are in the best interest of the child.

The Human Rights Tribunal process was delayed repeatedly by the previous federal government as a result of late disclosure of tens of thousands of documents, on more than one occasion, and as a result of judicial reviews and appeals challenging the jurisdiction of the tribunal.

The new Indigenous Affairs Minister, Carolyn Bennett, indicated that she agreed with the tribunal decision and said “My job is to go forward and fix these things.”

Discussion on Legally Speaking:

A copy of the decision by the Canadian Human Rights Tribunal: Human Rights Tribunal Decision

Michael T. MulliganMichael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.

Legal Fees for BC Government Employees

gift-moneyIf an employee of the Province of British Columbia is charged with an offence, as a result of conduct in the course of their employment, their legal fees are paid for by the government. If the employee is found guilty, they are expected to pay the money back.

Following the BC Rail legislature raid case where the government agreed not to seek reimbursement of $6 million in legal fees when the accused political staffers plead guilty there was concern that this decision was influenced by political considerations. Following this scandal, policies were put in place that were designed to regulate the circumstances in which legal fees would be paid for by the government.

Prior to the last provincial election another scandal erupted relating to a government employee being paid to work on the election campaign of a BC Liberal MLA. The BC Liberal Party repaid the province $70,000 for the salary of the employee who was working on the election campaign.

A special prosecutor was also appointed and two people, including the former provincial employee, have been charged with offences pursuant to the Election Act.

The trial for the two people charged with offences relating to this is set for the summer of 2016.

NDP justice critic Leonard Krog has been attempting to determine if the Province of BC is paying the legal fees for the former government employee charged with Election Act Offences. So far, neither freedom of information requests nor filings in the legislation have revealed if this is the case.

As the regulations now specify that employees are only to have their legal fees paid by the government if they are charged with an offence in the course of their employment this is a legitimate inquiry. As the BC Liberal Party has acknowledged that the former government employee was working on the election campaign while being paid by the public, this would seem to be inconsistent with any claim that the alleged offences were in the course of his government employment.

The payment of legal expenses for government employees raises another important issue with respect to the adequacy of legal aid funding in British Columbia. The report with respect to the payment of legal expense for government employees that was prepared following the BC Rail case recommended that legal fees be paid at the same rate as in legal aid cases. This recommendation was not, however, adopted by the government.

The fees paid in legal aid cases in British Columbia are notoriously inadequate and make it difficult for poor people charged with offences to properly defend themselves.

Instead, for provincial MLAs and other government employees, reasonable legal fees are to be paid in order to ensure a fair trial for the accused person. This is an appropriate standard. The problem is that it’s not the case for other people who require assistance from legal aid in BC.

Fair trials should not be reserved for employees of the provincial government. They should be the standard for everyone.

A discussion of this issue on CFAX 1070 – Legally Speaking:

Michael T. MulliganMichael Mulligan is a Criminal Lawyer at Mulligan Tam Pearson in Victoria. Legally Speaking is live on CFAX 1070 Thursdays at 11:00am.


ICBC fails to disclose impaired driving report as required

download-1In 2010 the Province of British Columbia introduced new impaired driving legislation. The legislation resulted in most impaired driving allegations being dealt with by way of a 3, 7, 30 or 90 day administrative driving prohibition rather than a criminal charge.

Since 2010 the administrative impaired driving legislation scheme has been the subject of various court challenges based on the fairness of the review process. While the administrative penalties imposed by the scheme are less than what would occur in the event of a criminal conviction for impaired driving, there is an ongoing concern that innocent people may be punished as the review process is much less stringent than in a criminal case.

The central point made by Province of BC officials, including the Attorney General, has been that the provincial impaired driving scheme was effective in saving lives. The Attorney General has been repeatedly quoted as saying that the scheme had saved 260 lives since 2010. Similar submissions were made by lawyers acting for the Province of BC in a Supreme Court of Canada case that reviewed the constitutionality of the legislative scheme.

In British Columbia, we have a Freedom of Information and Protection of Privacy Act. This act requires the province and other public bodies to provide information in their possession upon request from members of the public. It requires that such requests be complied with in 30 business days absent exceptional circumstances.

Despite these legislative requirements and multiple requests, commencing in February of 2014, it took until January of 2016 for a report on the actual effectiveness of the 2010 impaired driving legislation to be disclosed to our office.

In addition to failing to comply with the Freedom of Information timing requirements, the report finally released by ICBC casts serious doubt on the statistical claims made in support of the impaired driving scheme.

The report, dated January 2015 and marked “for internal ICBC use only”, indicates that as a result of a lack of control data and reliable statistics as to the factors that contributed to accidents “… it would not be possible to say whether any observed changes in collision frequency over time were due to the IDI [Impaired Driving Initiative] or to the many other factors (e.g., weather, other road safety enforcement initiatives, traffic density, road improvements, availability of public transportation, etc.”

The report points out that the databased of crash information created by the police included no information as to what factors contributed to, on average, 17% of fatal accidents. This incomplete database further undermined any attempt to assess the effectiveness of the 2010 impaired driving scheme as it can’t be determined if the fatal accidents without any contributing factor information were, in fact, caused by drivers who were impaired by alcohol.

When a legislative scheme is being debated and considered by the courts it is vitally important that this be done on the basis of reliable information. The failure to provide such information in a timely way may have resulted in important decision having been made on the basis of misleading statistics and claims of effectiveness.

The Report on British Columbia’s 2010 Impaired Driving Initiative can be found here: F244353 – IDI Draft Report Jan 2015

The letter covering the report and apologizing for exceeding the legislated time frames for disclosure can be found here: F244353 – Response letter (note: the response letter from ICBC is also misdated – it was sent in January of 2016, not January of 2015)

Vancouver Sun Article

Discussion of issue on CFAX 1070 Legally Speaking:




Michael Mulligan New head b&wMichael Mulligan is a lawyer practicing at Mulligan Tam Pearson in Victoria.


Robert Mulligan Q.C. – Pardons for Marijuana Possession

marijuana leaf_2Victoria Criminal Lawyer Robert Mulligan Q.C. commenting on the complexities of pardoning people previously convicted on marijuana offences. Issues include records being kept in multiple locations and how other countries, including the United States, would deal with Canadian pardons if they know about the conviction.

Times Colonist Story

Times Colonist Editorial


Homeless Camping at the Victoria Courthouse – Legally Speaking

homeless-campers-in-victoriaLawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing the legal issues arising from homeless people camping at the Victoria Courthouse. As a result of a court case several years ago the City of Victoria is constitutionally obliged to permit homeless people to erect tents or other temporary shelter for use overnight in city parks. That decision was premised on there being an inadequate number of shelter beds in the city. That court case, and the resulting city bylaw, require tents or other shelters to be packed up during the day.

Because the field next to the Victoria Courthouse is owned by the Province of British Columbia, and is not a city park, the bylaw that requires tents to be packed up during the day doesn’t apply there. As the Province hasn’t imposed any similar obligation to pack up tents during the day many homeless people have started to use that space on a continuous basis.

People who live in apartments adjacent to the courthouse have been complaining of problems associated with the large homeless population including noise from fighting, things being smashing, a fire being started, and thefts.

The legal context of the dispute is discussed in the context of a BC Supreme Court decision from October of this year addressing a similar issue in Abbotsford. That decision can be found here: 2015bcsc1909

The essence of the court decisions addressing the constitutionality of bylaws designed to control where and how homeless people can camp is that there must be some lawful way for homeless people to erect temporary shelters if there is an inadequate supply of shelter space or accessible housing. There is no constitutional obligation to permit the erection of permanent camps for use during the day.

Michael Mulligan New head b&wVictoria Lawyer Michael Mulligan on Legally Speaking – live on CFAX 1070 Thursdays at 11:00am

UVic Law News 1998 – Michael Mulligan Alumni Update

UVic Law News 1998

A January 1998 UVic Law News – discovered in a cleanup. A picture (check out the hair) and report from almost 18 years ago: Michael Mulligan (’97) is articling with the Department of Justice and is spending a “fair bit of time” in remand court. He also attended the Annual General Meeting of the Law Society of British Columbia in September. Dean Cohen reports that Michael drew applause on the need for adequate legal aid. Some of what he said: “I see on a daily basis … the faces of the people who stand up without representation. Looks of fear, looks of despair – those people deserve better than that. They deserve justice. They deserve dignity. And they won’t get either of those without proper representation. Defence counsel… working on legal aid are as critical to the process as the judges or the Crown… and I just wanted to stand in support of what… members of the legal profession [who] are acting for these people are saying.”

Mulligan in 971997 Michael Mulligan New head b&w2015

Judge Robin Camp and The Canadian Judicial Council

justice-robin-campLawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing the Canadian Judicial Council complaint with respect to Judge Robin Camp. In 2014, when he was a Provincial Court Judge in Alberta sitting on a sexual assault trial, Judge Camp made a number of remarks to the 19 year old complainant including asking her “Why couldn’t you just keep your knees together?” and “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” (The complainant alleged that she was sexually assaulted over a sink).

The Alberta Court of Appeal, in a one page decision, overturned the acquittal entered by Judge Camp and sent the matter back for another trial.

The Canadian Judicial Council is now dealing with a complaint, filed by four law professors, into the judge’s conduct. The Council, made up of senior judges, has the option of conducting a public inquiry into the conduct of the judge and recommending his removal, if appropriate.

Following the 2014 trial that is the subject of the complaint, Judge Camp was promoted by the former Conservative government, from the Alberta Provincial Court to the Federal Court Trial Division. This decision raises questions concerning the quality of vetting conducted prior to his promotion.

Issues including the methods for reviewing the conduct of judges, what is required for a judge to be removed from office, and the appropriateness of promoting sitting judges are all discussed. The balance required is to ensure that there is an effective review mechanism to deal with inappropriate judicial conduct without impacting on judicial independence.

A copy of the complaint can be found here: cjc-complaint-r-camp

Michael Mulligan New head b&wVictoria Lawyer Michael Mulligan on Legally Speaking – live on CFAX 1070 Thursdays at 11:00am.

Legally Speaking – The Law Society and the new Minister of Justice

The_Law_Society_of_BC_common_seal_1884Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – in a special extended edition discussing issues including the role of the Law Society, the new Minister of Justice, Jody Wilson-Raybould, and issues she will need to deal with including the legalization of marijuana.

The responsibility of the Law Society to act in the public interest regulating lawyers is discussed and contrasted with the responsibilities of the Canadian Bar Association. The lawyer disciplinary process including the way complaints are made, investigated and reported upon is discussed along with the range of disciplinary options available to the Law Society.

The new Minister of Justice will have a number of pressing issues to deal with including doctor assisted suicide and the legalization of marijuana. The legalization and regulation of marijuana will permit a better allocation of criminal justice resources and a reduction in the volume of criminal activity that results from the criminalization of the substance.

Michael Mulligan New head b&wVictoria Lawyer Michael Mulligan on Legally Speaking – live on CFAX 1070 Thursdays at 11:00am.

Brazeau Absolute Discharge and Ontario Regulating Police Carding

trudeau-brazeau460Lawyer Michael Mulligan on CFAX 1070 – Legally Speaking with Pamela McCall – discussing the Absolute Discharge of Senator Brazeau as well as Ontario plans to regulate practice of police carding people not suspected of any crime.

In the Brazeau case, having concluded that the woman who accused Senator Brazeau of sexual assault lacked credibility, the Crown accepted a guilty plea to simple assault and possession of cocaine. Following some deliberations, the trial judge accepted a joint submission for an absolute discharge which permitted Senator Brazeau to avoid a criminal conviction. Discussion of the role of the Crown, the test for a discharge and the task of a judge when there is a joint submission are discussed.

In other legal news, the Ontario provincial government has proposed regulations to restrict the practice of police carding. Carding is sometimes referred to as a street check. It involves the police asking people, not suspected of any crime, to produce identification and answer questions. Statistics revealed that black people in Ontario were being carded much more often that white people. The proposed regulations would require police to tell people that they are not obliged to answer questions and that they are free to walk away. Police officers would also be required to file reports if they card people.

The obligation to identify yourself and produce identification to the police in different circumstances is discusses as well as the implications of technological changes on the ability of the police to collect personal information.

Michael Mulligan New head b&wVictoria Lawyer Michael Mulligan on Legally Speaking – live on CFAX 1070 Thursdays at 11:00am.