Publication Bans, Judicial Recounts, Extradition, and Distracted Driving by an Interlock Device

Topics Discussed:

A new BC Supreme Court policy concerning bans on publication and closed courtrooms permits automatic notification of applications for the media as well as a web site listing publication bans, to make it easier to determine if there is a publication ban is in place.

Judicial Recounts: what is required for an automatic, or discretionary, judicial recount, and how the recount proceeds when one is required. Issues on a recount include whether it’s possible to determine the intention of the voter and whether a ballot has been marked in a way that could identify the voter.

Extradition: the requirements, and threshold, for extradition, are discussed in the context of a recent decision dealing with an extradition request by the United States in a securities fraud case. For a judge to order extradition they need only be satisfied that a properly instructed jury could convict, and not whether there is a defence, or if a conviction is likely. If a judge finds that this threshold has been met, the Minister of Justice then decides whether to actually extradite the person.

Finally, an appeal leaves open the question of whether an interlock device is an electronic device, for the purpose of a distracted driving conviction. A driver can be required to install an interlock device to ensure they are not impaired by alcohol. The device needs to be held, and blown into, before a car will start and then, periodically, while driving to ensure continued sobriety. The case demonstrates the need to clarify the distracted driving laws in British Columbia.


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Automated Transcript


Adam Stirling [00:00:00] Legally Speaking, on CFAX 1070 with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, good morning. How are you?

Michael T. Mulligan [00:00:07] I’m doing great. Good to be here.

Adam Stirling [00:00:09] Interesting stories on the agenda today. We’re going to get to the issue of impaired driving and the intersection with laws governing electronic devices, as well as, the need for an interlock in one’s car and how…I don’t even know if these if these different provisions are coherent reading what’s here. We’re going to be getting that. Just a couple of it’s going to be interesting. Where do we want to dive it?

Michael T. Mulligan [00:00:32] Well, why don’t we start with the publication ban? That’s probably an interesting thing for some.

Adam Stirling [00:00:37] All right. What’s a publication ban?

Michael T. Mulligan [00:00:38] Well, there’s a strong presumption in criminal and in fact, other cases as well, that the court process is an open one. Right. You’re free to wander up to the courthouse and watch what’s going on. And that’s a good thing. Little, little good comes of secret tribunals and things happening behind closed doors. However, there is an ever-increasing list of reasons why various things are prohibited, closed by in closed doors. They include things like the desire to protect the identity of complainants in sexual offence cases, desire to protect witnesses’ identities, desires to ensure that a trial is going to be fair. All sorts of good reasons why these things are coming and bans are made on publication of information or not letting people into the courtroom. And what just came out this week is an expansion of what’s called a practice directive from the B.C. Supreme Court, sort of setting out how these things are to be handled. And it’s, says, expansion of an existing policy. And it deals with how notice ought to be provided when there are going to be applications for these kinds of discretionary orders to keep things secret. And the way this works is that if somebody wants to make an application for a discretionary ban on publication or to exclude the public from a criminal or quasi-criminal sort of case, the there’s a requirement now that there be notice in advance, and that it be that notice winds up getting published on a website which members of the media or others can subscribe to as an RSS feed. So, the idea would be that the media could subscribe to that to kind of keep an eye on who is applying for bans on publication and for what purpose and what’s going on here. And I suppose in an appropriate case, if you looked at and said, you know, oh my goodness, look at this public official or some person where that might be relevant; the media could show up and make an application to oppose that or get some access to it.

Adam Stirling [00:02:38] So we could rely on the expectation of being notified instead of having to seek out the information every day to see if there’s anything there.

Michael T. Mulligan [00:02:46] Yeah, I mean, sometimes a smile when you see at the courthouse posted on outside a courtroom, I notice about some form of ban on publication of the public being excluded. Sometimes I think of it as sort of like a big target, somebody set up and otherwise a proceeding which would generate absolutely no interest for anyone at any time. Suddenly everyone’s eyebrows are going up or what’s over here? Right. What’s being kept secret?

Adam Stirling [00:03:08] Yes.

Michael T. Mulligan [00:03:08] So we’ve now got you know, the Internet is taking hold that’s going to be published in a regulated or regularized way, and then the other part of this is that the website will have a list of all of the publication bans that are in place and why they’re in place. And the idea, of course, then would be for members of the media before they’re going to report something, you could go to this almost one-stop shop to see, hey, am I allowed to report this? Is there’s some ban on publication? Can identify the complainant? There are various provisos like it’s not going to be immediate. Right. But that’s the idea. So, we’ve got this website now process to notify people so you can find out whether there’s a ban application coming or what’s currently in place so as not to be held in contempt.

Adam Stirling [00:03:54] We have had some very close calls in terms of election races here in the Victoria area over the years, particularly the West Shore riding, which has changed names. And it was also redrawn relatively recently. But I remember once upon a time the conservative candidate and the liberal candidate for a number of elections came within a shockingly small number of ballots from each other in terms of wins and losses. What is a judicial recount? And it’s in the news this week, isn’t it?

Michael T. Mulligan [00:04:22] Yes, it is. And it can arise in two circumstances, really. One would be an automatic judicial recount, and an automatic judicial recount would be engaged if at the conclusion of the counting of ballots, all of them, including the mailed in ones and people who voted in advance, this sort of thing, that the difference between the first and second-place candidate is less than one vote in 1000. So, if it’s that narrow, the provision is that there’d be an automatic judicial recount. If the gap is slightly larger than that, there can still be a judicial recount, upon application by one of the persons who was standing for election. Right. And in the election, we just had there is one of the ridings, for example, up in the Yukon is very close. It looks like one hundred and sixty-four votes spread and the number of votes for the liberal in second place conservative candidate were 6849 to 6777. So close. That’s clearly more than one in a thousand. But once there is a final certification of what that result is, the candidate who lost, if they wished to, could go and make an application for a discretionary judicial recount. They’d have to point out why they say there might be a problem. And that takes us, of course. Well, what on earth is a judicial recount? What does that look like and what’s going on?

Adam Stirling [00:05:57] I judicial. So, I think something with courts and judges recount seems pretty apparent. How does it work?

Michael T. Mulligan [00:06:01] Yeah, I actually was participated as counsel on that one of the ones back in Victoria that made reference to back to back in 2008. It was a world interesting experience. That was a case where the conservative candidate there tried Troy DeSouza came out 68 votes behind. Dr. Keith Martin, who was the Liberal candidate at the time.

Adam Stirling [00:06:26] Yes.

Michael T. Mulligan [00:06:27] And that was slightly more than the one in a thousand. But Mr. DeSouza made an application for a judicial recount. And that was ordered. And the process was an interesting one, once that was engaged. It involved a superior court judge. Judge Wilson. Justice Wilson. And it took place at the Empress Hotel and they rented out a large empty room in the basement of it. And what occurred there was all of the ballot boxes for the writing were brought in. Each one was set up at a separate table. And then they had representatives of each party scrutinizing the count. And you had a person doing the count and a person recording it. The judge was standing in the room wearing a suit, not in robes. And then you would have counsel for each of the parties in the room. And what would occur is, as the count was progressing, if there was a ballot, that was an issue. Like somebody said, for example, you know, it’s unclear what the intentions of this voter were.

Adam Stirling [00:07:30] Oh if it was marked off off-center or something like if the X wasn’t clear, something like that.

Michael T. Mulligan [00:07:34] It was incredible to see just the variation in human affairs. You would have things…

Adam Stirling [00:07:37] I would love to have been a fly on the wall and see that.

Michael T. Mulligan [00:07:40] You would look at, you would think, OK. How hard could this be? You to put an X in a circle next. The first thing you want. And people would have things like, well, you’ve crossed out to people and you put an exclamation mark by one and you underlined one with a tick mark. What was that? Right.

Adam Stirling [00:07:55] And the judge has to look at it, make a finding…

Michael T. Mulligan [00:07:57] So what would happen is you have the people doing the count and if a party took issue with it, like, you know, somebody pulled out when it looked like that and there was a star and an exclamation point next to the candidate and, you know, the, the person counting, is yes I think this is indicated for the one with the star underline and the little exclamation point. Then if somebody took issue with that, he would say, oh, hold on. Lawyers for each of the candidates would go up and discuss it. Look at the thing. And if we could agree, well, that was fine. We just carry on. If we couldn’t agree, then we would call the judge over, the judge would come over. Each of us would make a submission to the judge; look, I don’t know what this person means or two underlines. I don’t know what the star means. You’ve crossed somebody out over here. And then the judge would make a determination and he would say, yes, either count it or don’t count it. And then, in either case, he would get marked separately as an exhibit so that if there was ever to say yes of appeal or review of it, that could be looked at. And so, we carried on that in that way for many hours. And there are there there’s that issue, which I just identified, the issue of, what did you really mean here by this particular pattern of markings?

Adam Stirling [00:09:01] Is the balance of probabilities between the two submissions or how does it work?

Michael T. Mulligan [00:09:04] Well, the test for the judges is the voter’s intention, clear. Can you discern what did this person mean when you circled the person and wrote? Yes. Exclamation point. Having crossed out two other people. Now, the other reason your ballot can wind up being not counted is if you make a mark on the ballot, and this is more subjective, that could identify the voter. And I think the history of that would be you don’t want a circumstance for somebody either comes along and threatens you. Right. You better vote for so-and-so or I’m going to come and thump you or fire you or do something, and I’ll know because you better write a small letter D with an asterisk on the front bottom right-hand corner. I don’t see that. I’ll know you haven’t done it.

Adam Stirling [00:09:44] Interesting.

Michael T. Mulligan [00:09:44] Or I’ll pay you if you and I’ll know that you’ve done what you’ve promptly promised because you’ll write a smiley face on the top right. So, if you make a mark on your ballot, that could be unique and identify you. That ballot doesn’t count. So, don’t write your name on the ballot, don’t, right. You know, Mulligan loves this guy. That’s not going to get counted.

Adam Stirling [00:10:04] And so why would all our selfies with ballots either? Because it creates a record. Yeah.

Michael T. Mulligan [00:10:08] Yeah. And so that produced other interesting things because you could have a circumstance where, look, it looks pretty clear that this person wants this person. They wrote it. They drew a smiley face next to them with some stars around it, right. And that’s the only thing you’ve marked on the ballot. You haven’t touched anything else. Looks clear. This is the one you’ve picked but is a smiley face with some stars around it. Does that sort of unique identifying mark that might identify the voter? So don’t draw a smiley face in, don’t write your name on it, don’t…people would write numbers like some people thought, oh, I’ll just write like one, two, three or other people like shade in a couple of ones and then put like, it was an incredible combination of effects. Anyways, we went at that for hours and eventually it became clear to Mr. DeSouza that the result wasn’t going to change. So, he quite appropriately, hey, look, I don’t need to carry on with this. We’ve been at it. There isn’t some large variation in outcome, but it was a genuinely interesting process. And again, an open one. People can see what’s going on there. And I think a pretty impressive display of democracy. Right. You got some independent Judge…

Adam Stirling [00:11:15] I am envious of the insight you had… Yeah, that’s really cool. I like that. I didn’t know you work that case, that small world. All right. Well, I want to take a quick break. We’ll be back in just a moment. Extradition. What does it mean to be extradited to another country and also drunk driving laws and punishments? Are they fully coherent when we consider prohibitions on the use of electronic devices? An interesting finding in BCs courts. Michael Mulligan will help us understand it right after this.

Commercial [00:11:49] COMMERCIAL BREAK.

Commercial [00:15:24] Keeping you informed, Adam Sterling on CFAX 1070.

Adam Stirling [00:15:29] Legally Speaking continues with Michael Mulligan, counsel with Mulligan Defence Lawyers Extradition. What does it mean for one to be extradited to another country, Michael?

Michael T. Mulligan [00:15:38] Well, the way extradition works is it involves a request from the country that wants you to put you on trial. Right. So, Canada would have extradition treaties with a number of countries, including countries like the U.S. Right. And so, if the United States wants to put somebody on trial and they’re in Canada, they can make a request to Canada to have that person extradited or sent back to stand trial in the U.S. We’re seeing that, of course, right at the moment with that high-profile case….

Adam Stirling [00:16:07] Beaumont Sho Oh, yeah.

Michael T. Mulligan [00:16:07] That’s right. And there was another decision this week that dealt with a less high-profile case. But I think it’s useful because it sorts of sets out what the judge is charged with doing and what the threshold is to get shipped off somewhere to stand trial. In this particular case involved a person who is alleged to have engaged in securities fraud. Essentially, it’s an allegation that this fund was trading in penny stocks and doing things to manipulate them by buying and selling them, I think internally, to make them look like they’re going up in price. Markets being so thin for these stocks that few transactions at a pretty low value is going to cause it to look like, hey, look, this, you know, gold mining company looks like it’s going great every day it goes up by 2 percent that’s been happening for months and must be great. When there are very few stocks treated virtually all there might be some manipulation. I must say my cynical view is that it seems to be that I would have just sort of predicted that that was the cornerstone of stock trading in Vancouver.

[00:17:15] laughter.

Michael T. Mulligan [00:17:15] I would have to start with the proposition that probably that’s what’s going on and until there’s some compelling evidence to the contrary,

Adam Stirling [00:17:21] The reverse onus.

Michael T. Mulligan [00:17:22] Yeah. You should just sort of presume that your penny mining stock is being manipulated by somebody. So anyways, this was some fellow who was allegedly involved in this scheme and the, or a scheme like that dealing with penny stocks. And so, they were seeking, the U.S. was seeking, his extradition. And there is a judicial part of the extradition process which is just getting underway in Huawei case. And this case sort of makes clear what the threshold is to get extradited from a judicial perspective. Right. The judge who’s hearing an extradition request is not deciding; Is that person guilty or even are they probably guilty? The threshold that a judge is required to apply, is the same threshold that would apply at a preliminary inquiry in Canada. And that threshold is expressed as could a properly instructed jury convict on the evidence. It’s essentially is it possible not is it likely or likely?

Adam Stirling [00:18:29] reasonable likely. it’s just possible…

Michael T. Mulligan [00:18:29] …it’s reasonably likely. Yeah. Could they be there is that language about properly instructed? Right.

Adam Stirling [00:18:34] Okay Fair.

Michael T. Mulligan [00:18:34] So it can’t be just the total realm of speculation.

Adam Stirling [00:18:37] Okay.

Michael T. Mulligan [00:18:37] But you don’t avoid extradition by saying, hey, look, there’s a pretty clear defence over here or hey, look, that person looks like they’d be a pretty incredible witness, they’ve got all kinds of problems. And this case made clear that the judge said, look, the threshold here is just couldn’t properly instruct a jury convict. I appreciate your being of all various defences to this. I think this was the person’s defence was the hey, I didn’t know what the fraud was, I was just carrying out instructions. You know, I just worked at the torture chamber, whatever it might be. Right.

Adam Stirling [00:19:09] …is it or are they credible? And it was it wasn’t reasonable or unreasonable. I always find with legal tests is that it’s always made up of smaller legal tests.

Michael T. Mulligan [00:19:17] Right.

Adam Stirling [00:19:18] Which in turn is also made up of smaller legal tests. Supposing when do we actually hit bedrock? And it’s just ordinary words that mean a thing.

Michael T. Mulligan [00:19:24] Yeah. Don’t Worry. It’s elephants all the way down.

Adam Stirling [00:19:26] Okay, okay.

Michael T. Mulligan [00:19:28] The…So the judge here is required to order extradition saying, look, appropriately instructed jury could convict on this evidence, even if there is some apparent defence to it. And then when that judge makes that finding, it doesn’t mean the person is automatically whisked away to the other country. There is then a discretionary decision right through to the minister to make about are you going to, in fact, send the person back, which is going to be, I think, really the interesting decision and Huawei case, right, because there’s just a judgment call. What do you want to do here? The other thing I think which this sort of brings into sharp relief is all the the protests going on in Hong Kong at the moment.

Adam Stirling [00:20:09] Yes. yes.

Michael T. Mulligan [00:20:10] And that started, of course, with a proposal to allow extradition from Hong Kong to mainland China. That, of course, has expanded much beyond that particular issue, but this case and that test, I think also made clear, why you don’t want to enter into an extradition treaty with a country that you don’t have a very high degree of confidence in terms of the proper functioning of their justice system. Lest you find yourself whisked away to stand trial in someplace like China, where you probably would not have a high expectation that’s going to look like a fair and reasonable process. So.

Adam Stirling [00:20:52] Because by extension, it would make our justice system as unjust, jointly as any other system, to which we extradite your people.

Michael T. Mulligan [00:20:59] That’s right. Now, I mean, there are some concepts like dual criminality, where you would not be extradited unless what you’re alleged to have done is an offence both here and in the other place… For example, you know, let’s say it’s an offence and I don’t know Alabama to engage in blasphemy. Well, you’re not going to get extradited back to Alabama to face your blasphemy charge, because that’s just not going to be an offence here.

Michael T. Mulligan [00:21:25] Assuming, of course, we’ve got that criminal code updated.

Adam Stirling [00:21:28] I was just going to say, section 296, I think. I can’t remember if they’ve taken it out yet. Blasphemous libel. That’s right. I haven’t checked that in a while.

Michael T. Mulligan [00:21:33] Hopefully we got that over there along with witchcraft and pretending to tell fortunes. But, you know, it was up until these very recently…

Adam Stirling [00:21:42] These are actual laws…

Michael T. Mulligan [00:21:42] They’re still there or they were there until recently. So, there it is. Extradition is just, could a jury convict?

Adam Stirling [00:21:48] All right. We spent a substantial portion of the program earlier talking about drunk driving. It came off that laws have recently been changed to increase the investigative powers of police officers at the roadside. Also, this coincides with toughened laws recently around the use of electronic devices. You and I have talked at great length about how the courts are still interpreting what the use of an electronic device actually means. Is it being held in a way in which it may be used, or what does electronic device even mean? The presumption is often that it’s a phone or a communications device or something would distract the driver. Not always the case. What happened in this in this next story?

Michael T. Mulligan [00:22:26] Yeah, that’s, I think a real issue. And I think our legislation in B.C. that deals with the prohibition on the use of electronic devices may well require a little bit of a revision or reconsideration. It was clearly drafted in a way to be extremely broad, to capture all sorts of different things, probably bearing in mind things like, you know, technological changes and so on. Right. You wouldn’t want to be too restrictive. You know, when it turns out everyone is suddenly talking on their electronic pen or whatever else.

Adam Stirling [00:22:56] Exactly because the companies manufacturer things to avoid that law.

Michael T. Mulligan [00:23:00] They had a coffee cup, sir. No. It seems have a screen and a microphone on top of it. So, it’s really broad, the language. And, you know, like so many areas of the law, if there’s generally good discretion, exercised problems don’t arise. But that’s not, of course, always the case once you end up with a very large population of people making decisions. So, the particular case that came out this week highlighted one of the potential issues, that is still going to be a live issue, and it relates both to distracted driving and impaired driving. And the reason this is still an unresolved issue is this; In BC, if somebody is convicted of impaired driving or even if they’re not convicted, even if they wind up with a sort of alcohol-related injuries on their motor vehicle record as a result of results on screening devices or otherwise, those aren’t really convictions of any kind. There could be a requirement placed on somebody that they install what’s called an interlock device in their car. And an interlock device is essentially what people would call a breathalyzer that’s hooked up to the ignition system. And the idea is that you would have to have one of these things installed and you would need to blow into it before you start driving. And if it detects alcohol, well, the car won’t start. And then I supposed to deal with the possibility that if with that victory, you suddenly pull out your bottle of vodka and head out to the ferry, you would be required to periodically blow into it as you’re driving in order to establish you’re still sober and haven’t started drinking after you got your car running.

Adam Stirling [00:24:36] I didn’t know that you had to periodically use them.

Michael T. Mulligan [00:24:38] Yes.

Adam Stirling [00:24:39] I had no idea until reviewing this.

Michael T. Mulligan [00:24:40] And if you don’t do it, it’s on pain of the horn honking, the lights flashing on and off. So, there is a powerful incentive to blow into this thing. Right. So, this case involves the intersection of that law and this fellow involved in this case was required to have one of these things in his car. And then what happened is a police officer standing behind a fence some distance away when this guy was driving, said, hey, I think you were using your phone over there, touching it or tapping it and so he got charged with using an electronic device. At his traffic court trial, his defence was, well, no, no, I wasn’t touching my phone, I was tapping on my interlock device, which looks like the a square. Where thing kind of looks like a phone is connected by a cable that goes under the dash, probably looks a whole lot like a phone plugged into your cigarette lighter or something.

Adam Stirling [00:25:33] Yeah, Yeah.

Michael T. Mulligan [00:25:33] And the original judge, the judicial justice sitting in the traffic court made comments that suggested that, first of all, he didn’t believe this guy, but then, second of all, even if he did believe the guy, that thing would still be an electronic device. So, he would still be guilty because he was tapping on or holding this using an electronic device; to wit, the interlock device, which he was required to have in his car and required to blow into that. That’s obviously a problem.

Adam Stirling [00:25:59] So if it was mounted to the dashboard, would it be.

Michael T. Mulligan [00:26:02] Well, it’s got to be affixed securely fixed to the vehicle. And I think part of the problem there is that plugging your cell phone into the cigarette later, for example, doesn’t constitute being securely fixed to the vehicle. Otherwise, you could be texting away and updating your Facebook profile as long as you plug your phone in. That doesn’t get you there. So, he appealed. And so, it looks like maybe there’ll be some clarification of is an interlock device, an electronic device, and if so, it is tapping it constitute an offence. That would be a pretty clear problem. However, the Supreme Court judge dealing with that appeal ultimately concluded that because the the judicial justice, the original judge didn’t believe this guy’s evidence that he was tapping on his interlock device and not his cell phone, that the original judge’s comments about the interlock device were what are called opener in the decision, just sort of a by the by comment that didn’t really determine the case. And so, for that reason, the judge on the appeal did not need to address the issue of whether an interlock device constitutes an electronic device. But that issue sure hasn’t gone away.

Adam Stirling [00:27:14] Yeah, and it will come again.

Michael T. Mulligan [00:27:14] And I must say if somebody asked me for an opinion looking at the definition of electronic device and what the interlock device is, I would be pretty slow to give somebody advice. Don’t worry about it. You’ll be fine. So, again, I think this is another reason why the government should perhaps look at the use of electronic device provisions again to make sure that we are capturing what we mean to capture and not capturing various people in scenarios we just never envisioned.

Adam Stirling [00:27:39] That’s all the time we have for now. Michael Mulligan again, thank you so much. Michael Mulligan again, every week here on CFAX 1070 from Mulligan Defence Lawyers. The news is next.

Automatically Transcribed on October 24, 2019 – MULLIGAN DEFENCE LAWYERS