This week on Legally Speaking with Michael Mulligan:
The BC Government has proposed police roadblocks to enforce travel restrictions between health authorities, in order to reduce the spread of COVID-19.
Because there are significantly different rates of infection in different parts of the province, this objective is understandable.
Unfortunately, contrary to the premier’s assertion that police will be able to conduct roadblocks of this kind without any new authority, that is not the case.
Police have the authority to stop vehicles for motor vehicle-related purposes, such as to ensure the sobriety of the driver, that the driver has a valid licence, and the vehicle is properly insured and mechanically sound.
Police do not have the authority to stop vehicles for other kinds of investigations unless, at a minimum, they already have reasonable grounds to suspect that the occupants are connected to particular criminal activity. The police would not be permitted to, for example, pull cars over at random, or set up a roadblock, to search for drugs or stolen property.
In addition, police are independent of government: they are not obliged to set up roadblocks at the direction of the government. Some police representatives have already made clear that they are not prepared to participate in the proposed scheme.
Finally, the province has not provided vaccines to police officers so asking them to conduct roadblocks of the type suggested would put both the police officers and people being stopped, at risk.
There is, however, a safe and lawful means to accomplish the government’s objective.
Section 23 of the Public Health Act permits health officers to stop a person or vehicle for purposes including determining if “a health hazard exists or likely exists in or on the vehicle or place, or in relation to the activities of the person…”. The government could designate nurses, or other medical professionals, as health officers pursuant to section 71 of the Public Health Act.
Unlike police, the designated medical practitioners would have the legal authority to conduct checks or cars at ferry terminals or elsewhere. They would also be vaccinated.
This approach would also address many of the concerns expressed by the BC Civil Liberties Association, The BC Assembly of First Nations, the Criminal Defence Advocacy Society, and others relating to the use of police checkpoints.
Also on the show, a COVID-denier, who attended a Flat Earth conference in South Carolina, had his claim against the Premier, AG, and others, dismissed after he was arrested and held in jail for 4 days following three alleged breaches of the Quarantine Act, upon his return to BC.
In dismissing the man’s claim, the judge hearing the case said that he was not without sympathy, because the man learned the hard way that laws do not work on an “opt-in” basis.
Finally, on the show, Small Claims rules for civil claims between $5,001 and $35,000, have been amended as a result of COVID-19 to permit various steps in the process to be conducted by phone or video connection.
Other steps, such as a trial, would presumptively be conducted in person.
On application, a judge has the authority to depart from the default online or in-person option.
An automated transcript of the show:
Legally Speaking April 22, 2021
Adam Stirling [00:00:00] It’s time for Legally Speaking, on CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, and there are a number of interesting stories with respect to the law, the Charter of Rights and Freedoms and police powers in the news this week. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:15] I’m doing great. Always good to be here.
Adam Stirling [00:00:17] Now, I’m the kind of guy who says let’s shut down the entire island. And I know that it would be very difficult to actually do that because we, of course, have due process, the Charter of Rights and Freedoms, the law and we, it’s good that we have those protections, because excessive power by the state is a good idea until, of course, it comes back after you and then suddenly it’s a bad idea. What can police do and not do given these proposed restrictions we’ve been hearing about?
Michael T. Mulligan [00:00:42] Well, they can’t do is a matter of law. What the Premier seems to be suggesting, they should be doing. And that’s a problem.
Adam Stirling [00:00:50] mmhmm.
Michael T. Mulligan [00:00:50] There are other lawful ways to accomplish a similar objective. But what the Premier has been saying is that, without granting them any additional powers, his expectation is that the police will be conducting check stops to determine whether somebody is moving between health authorities and then presumably fine them if they were doing so. Now, the reason that that seems to indicate a misunderstanding on his part about what the authority of the police is, is that it is true that the police have the authority to stop a vehicle, in some circumstances. The police are permitted to do so, that is to say stop a vehicle, to check on things in relation to the vehicle, things like the sobriety of the driver. Does the driver have a driver’s license? Do they have insurance? What about the mechanical fitness of a car? That is permitted. But the Supreme Court of Canada has been clear, that police do not have an existing authority which would permit them to stop vehicles to venture into investigations of other matters. The police could not, for example, say, hey, we’re going to set up a checkpoint outside a music festival to search cars for drugs. That would be not permitted.
Adam Stirling [00:02:18] hmm.
Michael T. Mulligan [00:02:18] If you if the police wish to stop somebody, driving or not, to conduct some sort of an investigative detention into something other than those motor vehicle related matters. The police officer needs to have reasonable grounds to suspect that the individuals connected to a particular criminal activity, in such a detention is reasonably necessary in the circumstances. You cannot set up, the police cannot lawfully set up roadblocks in order to do things unrelated to the investigation of things like the motor vehicle related matters, sobriety and so forth that is permitted. But they’re not permitted to do other things.
Adam Stirling [00:03:01] hmm.
Michael T. Mulligan [00:03:01] And so if the police were to do what the Premier seems to think they can do here, there would be a very high probability that any statement or admission the police got from somebody in that context, for example, if they were to stop everyone and say, where are you going? Why are you leaving your health authority? What is your purpose? You know, show me your papers. There is a very high probability that, any statement they were to get from somebody would be found to be inadmissible, because the police do not have a general authority to stop you, to try to enquire into whether you’re generally committing a crime, whether you’ve got drugs in your trunk. They’re not permitted to do that. We have in Canada constitutional protection to be free from arbitrary detention, and it simply doesn’t permit that. Moreover, the Premier doesn’t seem to appreciate the fact that the provincial government doesn’t have the authority to order the police to go and do this. They’re not the army. The, they are to act independently, and occasionally, of course, they wind up the police, that is, wind up doing things like investigating politicians. It’s good and important that they not be operating at the direction of provincial politicians and they do not. And so, as we’ve heard, you’ve already got police agencies pushing back saying we’re not interested in doing this.
Adam Stirling [00:04:34] mmhmm.
Michael T. Mulligan [00:04:34] Now, on that front, I should say, the provincial government has also not provided vaccines to the police.
Adam Stirling [00:04:41] Great point.
Michael T. Mulligan [00:04:43] That was supposed to be provided as part of sort of the front-line workers, but they stopped that.
Adam Stirling [00:04:49] mmhmm.
Michael T. Mulligan [00:04:49] And so asking police to, in an unvaccinated state, stop cars randomly.
Adam Stirling [00:04:55] Oh of course.
Michael T. Mulligan [00:04:55] To conduct enquiries into this. You may be setting up a super spreader of into. Unintentionally.
Adam Stirling [00:05:02] Yeah, I never even though of that.
Michael T. Mulligan [00:05:03] That’s not Desirable.
Adam Stirling [00:05:03] Yeah.
Michael T. Mulligan [00:05:03] So in my view, not only does this appear to be unlawful, not only would there be serious problems with respect to trying to prosecute somebody on the basis of admissions you extracted by having the police stop them without authority and ask them where they’re going, you may be putting both the drivers and the police officers in jeopardy, asking them to do that. And so, you may well find the problem the Premier may well find the response from the police is simply, no thanks. We’re not interested in doing that. That was, of course, the response in Ontario when they, suggestion there, which they backtracked on, was to have police doing that. So, I think they need to perhaps rethink what they are proposing there. And if they do so, there would be alternative ways to accomplish something similar that wouldn’t put police in jeopardy and ask them to engage in conduct which may well be unconstitutional and unlawful. In that regard, the Premier, Provincial government.
Adam Stirling [00:06:13] Yes.
Michael T. Mulligan [00:06:13] Should consider using the Public Health Act and in particular, Section 23 of the Public Health Act. That section permits a health officer to stop a person or a vehicle or enter a vehicle or place to inspect the vehicle or place for any of the following reasons, and then one of them is: to determine if the health hazard exists or likely exists in or on the vehicle or place or in relation to the activities of the person. So, for example, somebody who’s travelling unnecessarily could be spreading Covid-19 that seems to fit squarely there. And there is authority, you might ask, what is a health officer? Well, indeed. Section 71 of the Public Health Act permits the provincial government and the governor and council to designate a person who’s a medical practitioner, either a doctor, a member of the College of Physicians and Surgeons or somebody else with the opinion of the provincial health officer, has sufficient training, knowledge, and skills to exercise the powers and perform the duties of a medical health officer. And so, well, it doesn’t sound perhaps quite as macho to, as it does say, we’re going to have police setting up roadblocks and checking people on the ferries.
Adam Stirling [00:07:29] Yes.
Michael T. Mulligan [00:07:29] You could well imagine using this existing authority to designate somebody for how about, for example, public health nurses. That might be a very important activity. Somebody else with medical training who would be lawfully permitted, if they were properly designated under the act, to do what they have in mind. They could stop vehicles and make sure that there isn’t a health hazard in relation to the person or the vehicle. And so that would be lawfully permitted. And you would not have the concerns about having unvaccinated people ordered to do this. You would not have the same concerns with respect to asking the police to do something they don’t have lawful authority to do. And you could accomplish the same objective in a way which was lawfully permitted. And so, it’s fully understandable why they want to accomplish what they’re trying to accomplish. But the same, if police do this without any additional authority, is not, in my view, an appropriate way to accomplish that. And they are already getting pushback. There was a letter that was sent to the Premier and the Attorney General and others yesterday.
Adam Stirling [00:08:43] Yes.
Michael T. Mulligan [00:08:44] By a whole range of groups here and everything from the Civil Liberties Association to the BC Assembly of First Nations, a whole host of Criminal Defence Advocacy Society, First Nations Summit, PIVOT Legal Services. Setting out a host of concerns that arise from the concept of having police asked to stop people in these ways. Concerns about whether there would be bias in terms of how that was done. Would the police, be collecting information on people? Would they be conducting searches in the police computer system for people? What was going on here and some of those constitutional problems that I alluded to, because it would seem on what’s described that there just isn’t authority to do what they are proposing. And so, they haven’t announced the specifics of this yet. Hopefully, somebody reading the letter, listening to CFAX, or getting some good legal advice, because there is a route to accomplish what they want to accomplish without putting people’s health in jeopardy, police, and others, and without engaging in conduct that would, on the face of it, appear to be unlawful and not permitted.
Adam Stirling [00:09:55] All right. Well, Michael, you convinced me. Hey, folks, if the Premier is out there listening. Do what Michael says instead of the police saying it wouldn’t work, anything else on this topic?
Michael T. Mulligan [00:10:06] No, I mean, they sort of the concept doesn’t seem like an unreasonable one, right? You know, you’ve got regions of the province where there’s much higher rates of infection.
Adam Stirling [00:10:17] Yes.
Michael T. Mulligan [00:10:17] Right. Then others. Right. We’re very lucky on Vancouver Island here to have a much lower rate of infection than there is in Surrey, for example. And so, it’s certainly not an unreasonable concept that, hey, maybe we shouldn’t have people moving between health regions where there are vast differences in terms of the rate of infection, because that simply risks spreading infection to places where there’s a low level of that.
Adam Stirling [00:10:44] Yeah.
Michael T. Mulligan [00:10:45] And in particular, here there is it’s reasonably easily done where you have an island, right.
Adam Stirling [00:10:51] yep.
Michael T. Mulligan [00:10:51] Where sort of a miniature version of New Zealand or something like that. But we don’t need to militarize the ferries. We don’t need to engage the police force. What’s required here is a health approach. And, you know, I think I can understand the frustration. And really what you’re seeing, I think, from the Premier and others is sort of this expression of exasperation and frustration.
Adam Stirling [00:11:17] Yes.
Michael T. Mulligan [00:11:17] Oh, my God, we’ve got the hospitals overflowing.
Adam Stirling [00:11:19] What do we do?
Michael T. Mulligan [00:11:19] You know, you’ve got reports. What do we do? Right. So, it’s understandable why. The first reaction, I think, was the one that we heard about earlier this week said, look, we’re going to stop this. We’re going to use the police and we’re going to be tough. So, I get that. But I think the legitimate objective just requires a little bit of sober second thought in terms of how we carry it out. If we’re not deliberative about how we do that, you’re going to wind up with a combination of things like people’s health being put in jeopardy. You may have trouble prosecuting anyone for it. You may have the police simply saying, no, we’re not doing that. That would obviously not accomplish any objective. And so, they should use the sections and powers that are there in the Public Health Act and do that properly. And we’ll accomplish what we want to do lawfully and in a way that will also, I think, ameliorate many of the concerns which were expressed by all of these First Nations groups of the Civil Liberties Society and so on. Those are legitimate, real concerns. And so, if you approach it in the way that I’ve suggested, you would alleviate those concerns if you had public health nurses or nurses or somebody else making those enquiries under the Health Act, you would alleviate the concerns. You’d be doing it lawfully and you’d accomplish what you wanted to accomplish. You just might need to do it in a way that doesn’t sound quite as forceful when you’re announcing it, you know, announcing that nurses are going to be checking on people before they’re permitted to get on the ferry. Sounds a little less, you know, perhaps macho than the police roadblocks are going to go up.
Adam Stirling [00:13:03] yeah.
Michael T. Mulligan [00:13:03] But I think that’s the approach we really need to take here.
Adam Stirling [00:13:05] I like it actually. The more I think about it, the more I like, you know, why it would take a while for the nurse to check each person. That in and of itself would be a natural deterrent for the ferries being overloaded. Anybody doing that would presumably be on the clock for some other employer’s time. i.e., Wouldn’t want to spend so much of your leisure time going through all of that hassle. That would also serve the purpose of simply stopping or at least slowing down the transmission of Covid-19 while we get as many people vaccinated as possible. I like the idea, Michael. I really do.
Michael T. Mulligan [00:13:31] Yeah. And if you did it, for example, if you implemented that by saying, look, we’re going to do it for everyone.
Adam Stirling [00:13:36] mmhmm.
Michael T. Mulligan [00:13:37] Who’s in the parking lot waiting to get on the ferry,.
Adam Stirling [00:13:39] mmhmm.
Michael T. Mulligan [00:13:39] We’re going to have the nurse go along and ask people in their car, hi, may I ask where you’re going and where you’re coming from? And I see your driver’s license even. That would also be permitted. You would also alleviate any concern that there would be racial profiling or people would be stopped for some other purpose, and it would indeed be focused on exactly what we want to focus on here, which is keeping everyone healthy and avoiding the hospitals getting overloaded.
Adam Stirling [00:14:01] Yeah, no, I like it. I hope they do that, Michael. We’ll see. Let’s take our first break. Is that work for you
Michael T. Mulligan [00:14:07] That works for me?
Adam Stirling [00:14:08] All right. We’ll take a quick break, Legally Speaking continues in just a moment.
Adam Stirling [00:14:11] Back to Legally Speaking, on CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. The next story, a person arrested for allegedly breaching the Quarantine Act following his attendance, to the United States of America for a purpose that sounds like something out of a sitcom to my ear, Michael.
Michael T. Mulligan [00:14:31] Indeed. So, this fellow whose given name was Makhan Parhar, but goes by “i:man:Mak of the Parhar family”, had travelled to the United States to attend a flat earth conference.
Adam Stirling [00:14:48] ahhh.
Michael T. Mulligan [00:14:48] And then then returned to Canada and refused to quarantine and so was arrested on a total of three occasions, October 31st, November 1st, and November 2nd of 2020, and spent a total of four days in jail, before being released on the charges of breaching the Quarantine Act and that following those charges is still awaiting trial, that’s coming up this summer. So, we’ll see what the eventual sentence is for the breach of the Quarantine Act, assuming he’s convicted of that.
Adam Stirling [00:15:24] mmhmm.
Michael T. Mulligan [00:15:24] He decided that he would sue a whole manner of people involved with that, including the premier, the health minister, the attorney general, the crown counsel, and so filed a civil claim, but wrote on the form, which would ordinarily start the civil claim, “I use this form only for the ease of court clerk filing purposes” and then showed up in court and claimed to be the prosecutor, self-appointed prosecutor in the Parhar court and claimed to have some authority to prosecute all of these various people, that didn’t get them too far. And so.
Adam Stirling [00:16:06] I can’t imagine it did.
Michael T. Mulligan [00:16:10] No, he seemed to have this theory that you needed to agree to be bound by the Quarantine Act. And if you didn’t agree to be bound by the Quarantine Act, somehow that didn’t apply to you. The judge, and I must say he seemed extremely patient with this fellow, indicated that this he said, I’m not without sympathy for the plaintiff he spent four days in jail eventually the result, evidently the result of alleged breaches of the quarantine act in a period, this occurred because someone convinced him, or he convinced himself, that statute law does not apply to him. It is a hard way to learn that laws do not work on an opt in basis. And so indeed, the fellow originally referred to Mr. Parhar discovered that you can’t simply avoid a law by declaring yourself to not have that name and not have opted into it. And so, the attorney general and others were successful in their application to have this claim struck out. And so, the premier and others won’t need to defend themselves on the, in the common law court of Parhar, against holding this fellow in jail for four days after he came back from the Flat Earth Society Conference in the United States. Okay there it is. You can’t just opt out.
Adam Stirling [00:17:31] I could just imagine the amount of restraint that needs to be exercised by members of the judiciary from time to time when presented with these arguments. So, you can’t say get a load of this idiot. So, you have to, of course, maintain courtroom decorum, treat them with respect as they argue that you are actually subject to the court of Parhar and not the other way around. Yeah, that must take a great deal of self-control, I’d imagine.
Michael T. Mulligan [00:17:54] You know, and to some extent, I’ve got to say, when you read these decisions, the decision goes on for 12 pages. You know, we are lucky to live in a place where that is so.
Adam Stirling [00:18:04] Yeah,.
Michael T. Mulligan [00:18:05] Right.
Adam Stirling [00:18:05] Yeah.
Michael T. Mulligan [00:18:05] You know, there’s a recent 12-page decision setting out what this person’s arguments were, what he had done, the background of it. The judge goes on to carefully analyze it. Look at the legal test, consider the application judge heard from both him and some other person who he permitted to make submissions on his behalf, who he described as a colleague that wish to make a few remarks, but emphasized that he did not act for the plaintiff, yielded the floor to that person.
Adam Stirling [00:18:34] For some reason,
Michael T. Mulligan [00:18:36] The judge, you know, obviously gave this person every opportunity to explain what he was doing right. You’ve got this third-party independent judge listen to everything this man had to say. He made a decision. And here it is for all of us to read. I must say, to some extent that’s, I think, great.
Adam Stirling [00:18:55] Yeah.
Michael T. Mulligan [00:18:55] You know, the obviously there’s a substantial amount of delusion going on there. But to have it dealt with in that sort of open, reasoned way that’s carefully explained for everyone to look at is, I think, pretty fantastic. You know, there not many places in the world where that would happen. You would be sort of dragged on in your heels in most places here. Here, you know, Judge, listen to the guy, let him have a say and then describe why you just can’t opt out of the law. And so, to that extent, I think it’s pretty good.
Adam Stirling [00:19:28] We have, let’s see, two and a half minutes remaining. And I do see us a story here with respect to covid, resulting in much greater use of online hearings for small claims cases.
Michael T. Mulligan [00:19:38] Yeah, I think that’s an important thing for people to know about. So, in British Columbia, we’ve now got this civil resolution tribunal for very tiny claims, like up to $5,000. But if you’re suing somebody for $5,001 dollars, up to $35,000, that would occur in small claims court with a provincial court judge. And there are various steps in that process, including things that are called like a settlement conference where a judge. Would try to get the parties together and talk to them and hear each side and try to come to an agreement to resolve it, or there could be other things like an application of some kind and what they’ve done, as a result of covid, and I think this will have just good general application even when hopefully Covid is done. They have now changed the rules so that by default, many of those steps would occur by telephone or video conference, MS Teams, or something of that sort. And so that will permit people to take many of those steps, like the settlement conference or some application with respect to a case and do that, you know, from home or from some other place without having to go to the courthouse. And it does have by default, a trial would occur in person. But with all these things, a judge would have discretion to change the default. That being, you know, for example, that a settlement conference would be by telephone or video and to order them either to be in person or the other way round. And so, I think that’s a good advancement. It’ll make it easier for people to access small claims court. And in addition, in the times of covid, also, ultimately it keeps everyone safe. So, I think that’s worth knowing about. And there have been some good changes that have flowed from what we’ve been dealing with now for more than a year.
Adam Stirling [00:21:28] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. I do love these segments every week. I learn something new about the way our legal system works every single week, and I’m sure our audience does as well. So, thank you, as always for your time.
Michael T. Mulligan [00:21:39] Thank you. Always a pleasure to be here. I always enjoy it.
Adam Stirling [00:21:42] All right. Bye now.
Automatically Transcribed on April 22, 2021 – MULLIGAN DEFENCE LAWYERS