Navigating the maze of legal jargon can be daunting for many, but not when you have legal expert Michael Mulligan to guide you. In this episode, Mulligan offers valuable insights into the seemingly enigmatic Bill 34, also known as the Restricting Public Consumption of the Legal Substances Act. This legislation, contrary to popular belief, penalizes those who fail to vacate an area upon a police officer’s request, not drug use itself. A deep dive into the Act reveals that it’s not as stringent as it seems, emphasizing the importance of understanding the intricacies of legal documents.
Beyond Bill 34, the episode also throws light on the little-known tort of misfeasance in public office. This tort is rarely used, but its implications are profound, making it a topic worth understanding. Misfeasance in public office comes into play when a public official abuses their position of power, resulting in injury to an individual or a class of persons. It’s a reminder of the need for objectivity and fairness in decision-making within public offices.
Mulligan presents a real-life case involving this tort. The case revolves around a man who faced political interference despite fulfilling all legal criteria for his run-of-the-river hydro project. Despite meeting all legal requirements, his application was denied due to political considerations, exemplifying misfeasance in public office. This case serves as a stark reminder of the need for the law to be upheld and for decisions to be made impartially.
In dissecting this case, Mulligan emphasizes the importance of lawful decisions being made in accordance with the law. This is fundamental for ensuring that we all live in a world that isn’t ‘topsy-turvy.’ Instances like these underscore the importance of understanding the subtleties of law and the significant role it plays in our lives.
Whether it’s understanding the implications of a misleading Bill like the Restricting Public Consumption of the Legal Substances Act or comprehending the implications of a tort like misfeasance in public office, this episode offers a valuable exploration into the world of Canadian law. As we delve into these topics, we not only gain a deeper understanding of the legal landscape but also develop a greater appreciation for the role of law in shaping our society.
In conclusion, understanding law isn’t just for lawyers or law students. It’s essential for every citizen to be aware of their rights and the workings of the legal system. With experts like Michael Mulligan shedding light on complex legal jargon and real-life cases, we are all better equipped to navigate the complexities of the legal world.
A transcript of the show:
Legally Speaking Oct 12, 2023
Adam Stirling [00:00:00] It’s time for Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:05] Hey, good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:07] Interested in your thoughts; because one of the things you and I have discussed any number of times over the years that we’ve done this segment is that the political communications and sometimes the political objectives of a piece of legislation can sometimes be at stark variance with the actual legal text of a statute and how that will be applied by the courts. I think we have another example today.
Michael T. Mulligan [00:00:30] We do. Perhaps that’s the reality distortion field of the press conference, but indeed that happened again last week. I think many listeners would be familiar with the stories that followed the government announcement following the introduction of what’s built. What is Bill C, or sorry, Bill 34 entitled The Restricting Public Consumption of Illegal Substances Act. And in the press release for that and all the discussion I heard about it in public included a suggestion that the legislation, this was rights in the press release, it says the legislation, if passed, will ban drug use in public and recreational focussed spaces, including and that it lists a bunch of things, six metre radius of building entrances, six metres of bus stops, 15 metres of playground spray and wading pools, skate parks, parks, beaches and sports fields. So, looking at the press release and how it was discussed, I think people would quite, quite reasonably believe that in fact this legislation would ban the use of illegal substances in those areas. And indeed, if you just have a very cursory look at the legislation, you might come to the same mistaken conclusion, because indeed section 3, under the heading Consumption of Illegal Substances says this. “3(1) a person must not consume an illegal substance in any of the following areas or places…” then it lists a bunch of places which generally conform with the press release and the talking points about this legislation. You have to keep reading though, and all the way down to section 8 of this piece of legislation which says if 8(2) says this “Section 5, the general offence of the Offence Act does not apply to this act.” Hmm. Well, what might that mean? Well, what that means is that we have in British Columbia an act called the Offence Act, and the Offence Act provides that if you don’t follow a piece of requirement in a piece of legislation, you could be charged with an offence for not doing so. It’s kind of what gives it some meaning as opposed to sort of an aspirational statement of things you might hope would happen. Right.
Adam Stirling [00:03:00] hmm.
Michael T. Mulligan [00:03:00] That’s sort of why that’s the power to do something about it. If somebody says, well, that’s fascinating, it says that I can’t consume an illegal substance by a spray or wading pool.” Right.
Adam Stirling [00:03:13] mm hmm.
Michael T. Mulligan [00:03:13] And so this piece of legislation says that does not apply. Now,
Adam Stirling [00:03:18] huh.
Michael T. Mulligan [00:03:18] That’s not completely unique because some legislation will have its own set of penalties set on it.
Adam Stirling [00:03:25] Yes.
Michael T. Mulligan [00:03:25] Rather than relying on the general provisions of the Offences Act, which would make it an offence to not follow a rule in any piece of legislation. And so, for example, the Liquor Control Licensing Act. Right. It has its own scheme of penalties that are set out and rather than relying on the Offence Act. So, if for example, somebody is drinking in the park, well there’s a section for that. Right.
Adam Stirling [00:03:50] yeah.
Michael T. Mulligan [00:03:50] And the range of penalties set out for that. However, in this particular piece of legislation, Bill 34, the Restricting Public Consumption of Illegal Substances Act, it only applies to one section of the act. And this comes from, this was set out here in the under the heading offence section 8 (1) and says “the person who fails to comply with a direction given under Section 4, commits an offence” well, what about Section three?
Adam Stirling [00:04:19] Yeah, that’s wierd.
Michael T. Mulligan [00:04:20] The one where you can’t do these things, it’s not included.
Adam Stirling [00:04:24] huh.
Michael T. Mulligan [00:04:24] It’s not an offence to, to do those things. It’s not an offence to use illegal substances on a beach, sports playing field in a park, or on a playground. Any of those places. So, what is section 4? Section 4 is this. “If a police officer has reasonable grounds to believe that a person is consuming an illegal substance in an area described in section 3, the police officer may direct the person to do one or both of the following a) cease consuming the substance or leave the area.”
Adam Stirling [00:04:56] huh.
Michael T. Mulligan [00:04:56] So the legislation does not make it an offence to use drugs in a park, playground, skate park, any of those things. The only thing that makes it an offence is that if you’re in fact doing that, you’re on the children’s play swing using fentanyl. You haven’t committed any offence unless and until a police officer shows up and tells you, hey, stop using fentanyl on the swing set. Right.
Adam Stirling [00:05:26] huh.
Michael T. Mulligan [00:05:26] Then, only if, you then still continue to use the fentanyl or refuse to leave. Nothing. No offence has been committed until that happens. So, if you had somebody who’s sitting on the merry go round smoking crack. Right. And you wander up to me, hey, you can’t be here. There’s no crack smoking on the merry go round. The legal response would be, Well, that’s fascinating. I don’t seem to be doing anything wrong. Right. And in fact, they wouldn’t be unless and until a police officer drives over and tells them, stop doing that on the merry go round.
Adam Stirling [00:06:02] So the offence is failing to leave after being told by a police officer, not the drug use.
Michael T. Mulligan [00:06:08] That’s right. So, this legislation does not prohibit any of the things which the press release would clearly cause you to think that you’re prohibiting right.
Adam Stirling [00:06:18] Now, I see it.
Michael T. Mulligan [00:06:18] Even a very cursory read of it, you would think, oh yes, look right here, you must not do these things. But you then put in the special section 8 saying, Well, that’s not an offence and then you haven’t bothered to make it an offence under this piece of legislation. So, it appears to have been intentionally drafted to make it, almost toothless. And then the other thing which is interesting,
Adam Stirling [00:06:43] yeah.
Michael T. Mulligan [00:06:43] That if you were on the merry go round using fentanyl and the police show up and they tell you, stop doing that, and if you don’t stop doing it right, then at that point, there is some authority here for the police to seize the substance you’re using. Right. If those things have all happened.
Adam Stirling [00:07:01] yeah.
Michael T. Mulligan [00:07:01] So, sure enough, they told you you haven’t done it. Okay now. But they can’t see that the police can’t seize it. If it was prescribed, if it was provided to you by way of a prescription. And of course, some people would have that.
Adam Stirling [00:07:13] yeah, they would.
Michael T. Mulligan [00:07:14] A unique supply system to those people. The police cannot take the drugs away from the non-compliant person on the merry go round if they got the drugs pursuant to a prescription. And the challenge there is going to be some police officer showing up at 3 a.m. in a park with somebody there doing something or whatever at the school grounds and trying to figure out, is that something you got from a prescription? Well, maybe, maybe not. And so that’s a secondary issue. But the principal one here is that there isn’t a power to stop this. So, somebody like the school principal going and saying, you know, get off the playground with your drug paraphernalia, they’re not actually, there’s no actually obligation to do that under this act. And so, this hasn’t yet passed. Perhaps there should be some consideration given to whether there should be some changes to this.
Adam Stirling [00:08:08] yep.
Michael T. Mulligan [00:08:08] Which would provide some capacity for, you know, the person who shows up or the parent or the school principal or the security guard. I mean, imagine that.
Adam Stirling [00:08:17] Yeah.
Michael T. Mulligan [00:08:17] Let’s see. You’re the small business person and somebody is sitting right outside the door of your business smoking drugs, right?
Adam Stirling [00:08:24] Yeah.
Michael T. Mulligan [00:08:25] And the security guard, hey move along or the owner, they get lost. You can’t be doing that here. Well, indeed you can. Because of the way they’ve drafted Bills 34.
Adam Stirling [00:08:37] What about bylaw?
Michael T. Mulligan [00:08:37] to say stop there. They’re good to go. Well, this is a provincial system. If they’re a peace officer, the issue would be, is the person a peace officer?
Adam Stirling [00:08:44] Okay. So that’s the distinction.
Michael T. Mulligan [00:08:46] If you’re a police officer, it is to find your police officer means a person who under the police act is a provincial constable, a municipal constable or a designated constable.
Adam Stirling [00:08:59] hmm.
Michael T. Mulligan [00:08:59] So it’s a narrower definition. I shouldn’t have said peace officer because that can be a broader definition.
Adam Stirling [00:09:04] yeah.
Michael T. Mulligan [00:09:04] There’s some people that are peace officers that may not meet this definition of police officer.
Adam Stirling [00:09:09] okay.
Michael T. Mulligan [00:09:10] So they’ve defined it. It’s got to be one of those people that shows up and tells you to stop doing whatever you’re doing in the doorway or on the swing set or whatever. And then at that point you have the option to leave or stop doing it right. So, it would be like it’s not the equivalent and that’s the other line that was used oh this just brings it in accordance with liquor or smoking regulations. That is not how the Liquor Control Licensing Act, or the smoking rules apply. You can’t just be you’re not allowed to anyways be sitting on the swing set drinking beer in the middle of the day. That is already an offence before the police tell you to stop that. Right. Otherwise, the state of affairs would be you be able to sit around drinking, you know, in the park and maybe we should allow that. I don’t know. Right. But you can’t just be drinking away in the park until the police show up and tell you to stop doing that. Right. And so that’s what they’ve done here. And that is entirely inconsistent with how this has been portrayed. So, I think it’s really important people know what’s, in fact, going on. And it’s more so when there are, there’s a misleading press release about it and the government statements about what they’re doing just don’t conform with the legislation that they introduced. So that’s the Bill 34, the Restricting Public Consumption of Illegal Substances Act, or they could add to the end of the title maybe (if asked by a police officer) Otherwise you’re still good to go.
Adam Stirling [00:10:36] Oh, how is this real? But you’re absolutely right. No, I totally see it. Michael, I really appreciate your insight because I was one of those observers who didn’t realise what the legal implications of this were actually limited to.
Michael T. Mulligan [00:10:49] Well, they told you that it did more than it did. Hardly surprising, right?
Adam Stirling [00:10:53] All right. Let’s take our first break, Legally Speaking. We’ll be back in just a moment with Michael Mulligan from Mulligan Defence Lawyers.
Adam Stirling [00:11:00] Legally Speaking continues with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, up next on our agenda, I’m reading here a $10 million reward against the province for, “misfeasance in public office.” What is that?
Michael T. Mulligan [00:11:15] It’s a rarely used tort which provides that you could sue a government for that tort the misfeasance in public office. And there are two ways in which that can occur. It’s been described by the Supreme Court of Canada as a category A or category B. Category A would be involves conduct of a that is specifically intended to injure a person or class of persons. That is to say a government decision or, Category B involves a public officer who acts with knowledge both that he or she has no power to do the act contemplated and the act is likely to cause injury to the plaintiff. So that’s the cause of action. That’s the tort would be the basis upon which this lawsuit was brought and succeeded. And the background of it is that a man formed a company and wanted to develop a run of the river hydro project. And the judge describes what that means in a run of the river hydro project is different from the big projects that B.C. Hydro might build with a big dam. Right? And instead, what it does is it diverts water from a river or stream, runs it through a turbine, and then puts it right back into the river or stream. So it doesn’t like block the river and make a big lake, it just uses the water as it flows by to generate electricity.
Adam Stirling [00:12:40] mm hmm.
Michael T. Mulligan [00:12:40] That’s the concept of it. And this fellow was interested in doing that. And in fact, when he started the process, B.C. Hydro had put out a call for people to do exactly that, and they were actually right back doing that. That was from 2005 when there was this call for people to produce power privately and sell it to B.C. Hydro because they realized they were going to have a shortage of power. Right. We’re in fact going to be doing that again, because we’ve determined that we’re going to have a shortage of electrical power in B.C. And he entered into an agreement with B.C. Hydro. They said, we’ll, buy your power if you can produce it in this way. And so, the man went and applied for the required permits to do that, that he needed two permits, one under the Land Act to be able to use Crown Land to build the Run of the River Generation facility.
Adam Stirling [00:13:37] mm hmm.
Michael T. Mulligan [00:13:38] And then he also needed to apply under the Water Act for permission to use the water while it ran through the run of the river setup.
Adam Stirling [00:13:46] hmm.
Michael T. Mulligan [00:13:46] And he made that those applications and various, as you might imagine, forms and pieces of paper went back and forth, and things were all appearing to be on track. And both of those acts have somebody referred to as the statutory decision maker, like the person in government who is in charge of giving permission or not giving permission to use crown land or use water for various purposes. Right.
Adam Stirling [00:14:11] mm hmm.
Michael T. Mulligan [00:14:11] And the act was a set of criteria for that and considerations of environmental considerations, all of those kinds of things. And indeed, having gone through the all the various hoops that those things would entail, the one of the statutory decision makers called him and told him that they were feeling comfortable, we were feeling, the language was “we were feeling comfortable in issuing the required permits.” So, everything seemed to be on track. And then for some reason politics intervened.
Adam Stirling [00:14:43] hmm.
Michael T. Mulligan [00:14:43] And in the form of the then minister and assistant deputy minister. And it appears that what happened was that they had some communication with the Squamish Nation who told them that they didn’t like the idea of this project, didn’t support it. They had objections to it based on apparently a cultural practice involving bathing in the river and the thought that the using the water first to generate electricity would interfere with that in some way.
Adam Stirling [00:15:14] oh.
Michael T. Mulligan [00:15:14] And so a political decision was made based on, it would appear, political considerations concerning the Squamish Nation and their objection to it.
Adam Stirling [00:15:26] Interesting.
Michael T. Mulligan [00:15:27] And so the after that initial approval, yes, we’re comfortable doing this by the person who’s supposed to make the decision. A telephone call came from the then assistant deputy minister, followed up by a letter saying, no, your your application is denied. And that’s the basis, that’s the factual foundation for this claim. But the decision to say no was a political decision that wasn’t made in accordance with the requirements of those acts, the Land Act and the Then Water Act, which would have its own set of criteria for when you approve these things and don’t approve it. And part of this, of course, is that we live in a system where we have the rule of law, right? We have laws that would set out criteria and how decisions are, should be to be made. Right. And the expectation is that decisions would be made in accordance with the law. Right.
Adam Stirling [00:16:21] yeah.
Michael T. Mulligan [00:16:21] So we could organize you know, you can organise your life accordingly. You can look at the, you know, land act. Okay, what do I have to do if I want to use some land for this? Okay. I’ve got to do this to meet this requirement of this test. Okay, here we go. Right.
Adam Stirling [00:16:33] Yeah.
Michael T. Mulligan [00:16:33] And the expectation is that government officials would make a decision in accordance with the law. Okay, there are five criteria here. Let’s look at it. We’ve got here. One, two, three. Okay, you meet all of them. Congratulations. There is your permit, right?
Adam Stirling [00:16:46] Yes.
Michael T. Mulligan [00:16:46] You don’t want government decisions being made on the basis of capricious considerations or political thoughts or whether I like you or don’t like you or anything else. Right. You want lawful decisions in accordance with law. Right. That’s what allows us to all live in a non topsy turvy world. But that’s not what happened here. And the judge in the case accepted that indeed, this political intervention and decision to deny the requirement after the person who should have been making the decision said, yes, this appears to be, oh, we’re comfortable doing this. It looks like you’ve met the the legal criteria, the political consideration of, well, we’re concerned about this objection by the Squamish Nation. That is not one of the criteria, is under the Land Act or the then Water Act. That’s just not their right. And so, the judge found that the political decision to deny the application apparently on that basis was indeed met. The criteria for that second form of that taught the tort of misfeasance in public office. And that’s where you have a public official who knows that you don’t have authority to do what you’re doing. You do it anyways. Right? And you know that what you’re doing here is likely to cause injury to the plaintiff in this case. Sorry, you can’t build your project you’ve been working on for several years. And so that’s what happened. That’s what the judge found out. But political interference or desire to meet political wishes concerning this first nation. And so, the judge then went on to analyse, okay, well, how much money did this small company had one person. The fellow who doing all of this, he was the only owner, director and everything else. Now how much does he lose? And the court concluded that if all of this went as it should have gone, in terms of how much money would you make present valued for the production of power from this facility minus the costs. The amount lost was 56.25 million.
Adam Stirling [00:18:54] hff.
Michael T. Mulligan [00:18:54] The judge then went on to take into account the fact that there are, of course, contingencies in life. Other things could have gone wrong. You know, either you would have had some problem building it or maybe prices would have gone up to build it or that you know, how much you got to the power could have gone down and took all of that into consideration and concluded the net result of the province making a decision in the way it made it was that this man lost out on or this company owned by this one man lost out on $10.125 million. And so that’s what the province is going to pay him as a result of making a decision in that fashion. So, I thought it was interesting to know, first of all, about that tort and that requirement and what the implications can be. It’s not a political free for all, right. When you’re a minister, you don’t get to just sort of make whatever decision and this applies more to more than just provincial ministers. You don’t get to just make whatever decision you think would be a good idea or whatever you think might be politically popular or expedient. You’ve got to make decisions in accordance with the law, and if you do otherwise and you cause harm, then this could be the result. And so, the public would have to pay the man the $10 million he lost out on, because of making a decision for that reason in that way.
Adam Stirling [00:20:06] All right. You and I have two and a half minutes left today.
Michael T. Mulligan [00:20:10] Sure, final case is a case out of the Supreme Court of Canada, and it’s a case that deals with bans on publication in criminal cases. And the particular section at issue with Section 648 of the Criminal Code, and that’s the section that provides for a ban on publication of evidence in a criminal case which is led when the jury is not in the room. And the idea there is that you could have a judge deciding whether, for example, some piece of evidence is properly admissible. Should the jury be taking it into consideration when deciding the case and if the that could be broadcast and published for the jury to just read about when they were out of the room, that would all be pretty well meaningless rate of juries making decisions based on all sorts of stuff that might be illegal or unreliable or whatever it might be. But the narrow issue here, and I should say that the publication runs only until the jury goes out to deliberate, because at that point, they’re not going to be listening to the radio or reading the newspaper. And so, you can publish and broadcast all of that information. So, it’s not a keep it secret. It’s just don’t publish it and broadcast it until the jury is off doing their business and they’re not going to be influenced by that. The issue the Supreme Court of Canada decided was does that ban on publication, which is automatic, and it occurs in every case with a jury. Does that apply to things that are in evidence that is led prior to the jury being picked? Becasue that happens, you can have issues that are like legal issues that are getting sorted out before the jury’s empanelled, because, for example, that might mean that the case doesn’t have to proceed or it might impact on how long they’re going to be required for. So, you’d want to decide them first. And the issue was does that ban on publication or the delay in publication impact on that kind of stuff as well? And the decision was, yes, it does. And the considerations would be things like what our argument would be, what are these people going to pay any attention to it if they don’t even know they’re on a jury yet? Maybe not. But the modern reality, of course, is that if something is published or broadcast, it is not going to be too hard if somebody looked for it to wind up seeing all sorts of stuff that may be unreliable or inadmissible. And we have to balance the desire for transparency and the open court principle against the requirement for trial fairness. And so, in this case, the Supreme Court of Canada found that indeed that ban or at least delay in publication does extend to evidence which was led before the jury got picked in order to make sure that trials are fair. So that’s the latest on Section 648, which I’m sure you were, you know, tossing and turning, wondering how that might play out. But that’s the latest from the Supreme Court of Canada.
Adam Stirling [00:22:52] Michael Mulligan of Mulligan Defence Lawyers. I learn new things every week, Michael. It’s greatly appreciated. Until next time.
Michael T. Mulligan [00:22:58] Thanks so much. Have a great day.
Adam Stirling [00:23:00] All right, You too.
Automatically Transcribed on October 13, 2023 – MULLIGAN DEFENCE LAWYERS