Racetrack zoning, join submissions and vexatious litigants


This week on Legally Speaking with Michael Mulligan:

The Municipality of North Cowichan’s decision to refuse approval for the expansion of the Vancouver Island Motorsport Circuit is found to be unreasonable following a judicial review.

At issue was whether a racetrack is a permitted use pursuant to the zoning that is in place.

The proposed expansion of the facility was to be on land zoned in the same way as the land used for the initial track.

The municipality approved the first track but then refused permission for the expansion with no meaningful explanation for the inconsistent decision. The judge found the inconsistent decision, without explanation, to be unreasonable.

It’s important that there be predictability in administrative decisions so that people can plan their affairs.

The next case discussed involved sentencing following a guilty plea to impaired and dangerous driving causing bodily harm.

The man who pleads guilty was sentenced to two and a half years in jail, pursuant to a joint submission.

A joint submission is a sentencing submission agreed to by both the Crown and Defence lawyers. It would take into account factors including the strength of the Crown’s case and the circumstances of the accused person.

The Supreme Court of Canada has directed that trial judges are required to impose the sentence agreed to by Crown and Defence unless doing so would bring the administration of justice into disrepute. This high threshold is important because if judges were routinely deviating from the terms of joint submissions, many fewer cases would resolve by way of people pleading guilty.

Finally, the Court of Appeal concludes that the designation of someone as a vexatious litigant does not apply to the commencement of criminal charges.

Someone can be designated as a vexatious litigant if they have a history of starting civil claims without merit. Such a designation requires the person to obtain prior permission from a judge before suing someone.

A designation as a vexatious litigant does not, however, stop the person from swearing private information charging someone with a criminal offence. This is because the criminal procedure that allows for this is a matter of federal jurisdiction. Provincial laws respecting the designation of someone as vexatious litigants don’t have any application.

In British Columbia, however, when someone swears a private information Crown Counsel is required to either take over the prosecution or direct a stay of proceedings to stop the case.

The charge approval standard applied by Crown Counsel in British Columbia has two parts:

1) Is there a substantial likelihood of conviction? and
2) Is the prosecution in the public interest?


Automated transcript of the episode:

Legally Speaking Nov 12, 2020

Adam Stirling [00:00:00] It’s time for Legally Speaking on CFAX 1070, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan, morning. How are you doing?

Michael T. Mulligan [00:00:08] I’m doing great. Thank you so much for having me.

Adam Stirling [00:00:10] Very interesting stories on the docket this week, including one involving a municipal council decision here on Vancouver Island. No, not that council, one further north.

Michael T. Mulligan [00:00:20] Yeah, that’s right. It seems possible to generate municipal controversy even north of the Malahat. So, this is a case that’s out of North Cowichan and it’s a case that involves the issues of interpreting zoning and the need for both consistency and explanations for why a decision might be reached. The particular case involves there’s a race circuit up in North Cowichan, which originally opened, I think, back in 2014. And when the company that was developing the race circuit wanted to do that, they, prior to purchasing some property to construct the racetrack at the associated facilities, made enquiries with the local municipality about whether the zoning that was in place would allow that to occur. The particular zoning that was in place, there were two zones, but the most of it was in an area called industrial lite zone, that permitted things like auto body repair or industrial use, fueling installations, motor vehicle repair, this sort of thing. And so, they thought there might have been some ambiguity in whether a race circuit would fit within that zoning. But the municipality reviewed it, said, yes, that would be permissible, and then granted them the requisite permit to build the racetrack. So, they built the racetrack.

Adam Stirling [00:01:50] mhmm.

Michael T. Mulligan [00:01:50] A few years later, they decided things were going well. They wanted to expand and there was an adjacent piece of property is owned in the same way, right next to the piece of property they already owned. They purchased it. They then went and applied for a permit to build a larger racetrack on the adjacent piece of property. By that point, it sounds like some local opposition had developed, I suppose, due to the noise of the first racetrack. And so, when they applied for permission to build the expanded racetrack, they were told no. And the municipality took the position that the zoning does not permit a racetrack to be built. They challenge that, and their argument amounted to a review of that administrative decision on the ordinary standard, which would be whether the decision is a reasonable one. And they said, look, you know, it’s the same zoning. You previously permitted it. Now you’re not permitting it. And the judge agreed with the racetrack and the judge set out that an administrative decision like that one need not necessarily be the same, but there could be some reason why there would be a different conclusion reached even on identical facts. But it is unreasonable to reverse your decision and offer no meaningful explanation as to why you’re doing so. And so as a result, the BC supreme Court Judge overturned the municipal decision to refuse the permit on the basis that making an inconsistent administrative decision and not offering some sort of explanation for how it is you’ve come to the opposite decision on the same fact pattern is simply unreasonable. And so, the takeaway, if you’re a municipality, is you need to both act reasonably and explain your decision if you’re making an inconsistent decision on what amounts to identical facts. And so, I think it’s a positive decision in terms of sort of the rule of law and making sure that you’ve got, you know, consistent administrative decisions in where there is a particular legal regime in place. If people can’t rely upon those things and there to be consistent decision making, we’re all in sort of a topsy turvy world.

Adam Stirling [00:04:23] yeah.

Michael T. Mulligan [00:04:23] And people wouldn’t know what can I do, what can’t I do? And it can’t simply be the length of the political foot or, you know, how many people are standing up on one side of the room or the other. We want to live in a place where there is consistency, rationality, and explanations for decisions. So, this one is going to go back to the municipality. The judge didn’t decide the issue. The judge concluded the way they did this with no explanation, made it unreasonable. Go back and try again. And so now the municipality can either make a consistent decision and approve what’s being asked for, or if they wish to deviate from their previous decision about whether the zoning allows the racetrack, at the very least they’re going to have to explain themselves. And then if that explanation was not reasonable, that, again, might wind up being subject to judicial review. So, I think positive decision in terms of rationality and consistency so that people can, you know, know what they’re allowed to do and not do.

Adam Stirling [00:05:26] So I like that, actually, because the whole or one of the benefits, I should say, of having rule of law instead of just rule by whoever has the biggest stick. And if you’re in a good mood today and you ask for something you’re going to get it, is the ability for people to manage their affairs and to plan for the future. And predictability is a requirement in terms of being able to effectively plan, say, whether it’s a racetrack or another business venture. One needs to be able to seek legal advice and ask the question, can I do this? And if counsel such as yourself or others say we have no idea, it’s like pulling the lever on a slot machine every time, that’s not helpful to society.

Michael T. Mulligan [00:06:01] No, business can’t function. People can’t function. Right.

Adam Stirling [00:06:05] Yeah.

Michael T. Mulligan [00:06:05] It’s like if you bought a piece of property to build a house and the zoning said it was for was house building and last year council allowed somebody to build a house right next door. It would be not a good state of affairs if for some arbitrary reason they just said, no, you can’t build one here. There just needs to be predictability so people could manage their affairs and here the company, I think not unreasonably, relying on the fact that this exact same zoning was permitted. This, exactly this kind of development a few years earlier. It’s not unreasonable to conclude, well, the same thing should be allowed now. And so, I guess we’ll we’ll see what the municipality does with the guidance of the Supreme Court Judge.

Adam Stirling [00:06:50] Next case, catastrophic injuries as a result of impaired and dangerous driving, resulting in a two-and-a-half-year penitentiary sentence.

Michael T. Mulligan [00:06:59] Yes, boy, this was an awful case. This was a case that involved a guilty plea to dangerous driving and impaired driving, both causing bodily harm, where a young 20 year old University of Victoria student was hit by a vehicle and the vehicle driver then took off and was eventually caught. But the student was just catastrophically injured. She wound up with very serious brain damage and while she’s still alive, she requires constant care. And so just an awful circumstance. One of the things I wanted to point out, it was interesting watching the coverage of this case, locally, it’s a local case, was a discussion about sort of the judge and coming to the ultimately the decision about the length of sentence to impose. And I should say that’s a significant sentence for the person who was sentenced and had no criminal record. He was also a young person and he actually had a tragic family background that involved his own father being killed by an impaired driver when he was young and then his life sort of going off to a poor direction as a result of that tragic loss that he suffered. But one of the things that struck me as I watched the coverage of the case, is something that I think people should know about in terms of sentencing decisions like this one. This case, like many cases, are resolved by way of what are called a joint submission. And what essentially that means is that crown counsel, prosecutor and counsel for the accused have come to an agreement in terms of what sentence would be appropriate. And on that basis, the accused person is pleading guilty to the offence. There’s no trial involved. And there are some special rules that apply in terms of how a judge has to deal with a sentencing like this one where there is a joint submission. The prosecutor and the defence have come to agreement that a two-and-a-half-year sentence would be an appropriate sentence here.

Michael T. Mulligan [00:09:20] And where there is that kind of agreement, the Supreme Court of Canada, in the case of keynoted 2016 called Regina versus Anthony Cook, is made clear that a judge who is imposing sentence where there is a joint submission is required to impose the sentence being asked for by the prosecution and the defence, unless imposing that sentence would bring the administration of justice into disrepute, which is a very high threshold. And the reason for that rule is that unless there was some certainty that, when there’s a sentence agreed to the judge was going to oppose it, you would not have the same number of cases resulting in people pleading guilty to them. If somebody said, look, they’ve come to some agreement, they’re pleading guilty, but who knows what will happen. Once again, it’s important that there be some predictability in the process so as to encourage cases like this tragic case to resolve. And so I think that’s just an important thing for the public to know when you’re watching sort of coverage or reading about coverage, about how a sentencing decision is reached, where there is a guilty plea and where you’ve got the prosecution and the defence have come to agreement in terms of what the sentence should be. In those circumstances while, everything would be laid out for the judge to explain how that conclusion was reached so that the judge could determine whether imposing the sentence would bring the administration of justice into disrepute. So, it’s laid out for the judge, but the judge is essentially required to do what has been agreed to unless that very high threshold has been met. And once again, it’s an example of where consistency and predictability are necessary in order to ensure that the system is able to function. And the theory behind all of that is that, of course, the prosecution and the defence would have the best information about the strengths of the case, all of the issues that might be involved and where they come to an agreement, barring those kind of exceptionally high threshold, the sentences being asked for should be imposed by the judge.

Adam Stirling [00:11:44] I am going to admit my ignorance here, before we started doing all of these, my imperfect and flawed understanding of the legal system is that judges just sort of knew everything in all the rules and all the laws. And even if both parties submitted flawed submissions, the judge would say, actually, here’s what should be happening instead of merely preferring one submission over another, which is what I have come to understand is how the system functions.

Michael T. Mulligan [00:12:06] Yeah, that’s a really interesting thing. You know, judges are in Canada ordinarily required to deal with all manner of cases. Right. Judges would ordinarily have had some, might have had some particular background as a lawyer, but they would hear cases of all kinds, family, civil, criminal, all kinds of things.

Adam Stirling [00:12:26] Yes.

[00:12:26] And the court, I think, very much does rely upon counsel bringing and making fulsome submissions and providing the law to the judge so that the judge could make a proper decision about it. No one, no judge is going to be a fluent expert up to the minute, updated on every possible area of the law. And so, the system works because of the fact that you’ve got counsel on both sides, right?

Adam Stirling [00:12:55] Yes.

Michael T. Mulligan [00:12:55] Providing the information to the judge so that you’ve got an independent, fair minded person deciding what to do. But they rely upon counsel showing up and providing that information for them. And that’s why it can be so problematic. Where one party doesn’t have counsel.

Adam Stirling [00:13:14] Yes.

Michael T. Mulligan [00:13:14] Or neither party as counsel, you can just imagine how much more challenging that’s going to be. Put yourself in the position of the judge.

Adam Stirling [00:13:20] Yes.

Michael T. Mulligan [00:13:21] If you’ve got one person showing up with a lawyer presenting all manner of people and making submissions and the other person doesn’t have that, you could well imagine how you would be very much at a disadvantage even doing your level best to try to come to a fair decision. So that’s why it’s just so important there be counsel so that judges have all of the required information so that they can make an informed decision.

Adam Stirling [00:13:47] Michael Mulligan with Mulligan Defence Lawyers will take a quick break and continue, Legally Speaking, in just a moment.

[00:13:52] COMMERCIAL.

Adam Stirling [00:13:52] Back to legally speaking here on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers. Michael, I must admit another imperfect understanding I had with regard to the rules of civil procedure and how the civil law system works is I didn’t realize until doing this job and learning more from counsel such as yourself and others, that anybody can file a lawsuit without having to obtain permission from a judge or some other process to stop frivolous or merit or complaints that lack, that lack merit from being filed. I always assume that you’d have to ask and the judge, just look at you and say, no, get out of here. If you didn’t have sufficient cause of action, although that’s not how the system works. There’s something being called being declared a vexatious litigant. How does that all work?

Michael T. Mulligan [00:14:36] Yes, indeed. And I should say this, the civil justice system relies in large part on things being resolved outside of the court process. Right. There will, there is a process of filing paperwork to start a legal claim, but most civil claims over money wind up getting resolved without ever going to court for a trial.

Adam Stirling [00:14:59] Yes.

Michael T. Mulligan [00:14:59] The lawyers sort the thing out, come to some agreement, and the thing never sees the light of day in court.

Adam Stirling [00:15:04] Mhmm.

Michael T. Mulligan [00:15:04] And boy, that’s a good thing because the court system would go to his knees immediately if everything wound up being litigated.

Adam Stirling [00:15:10] Yes,.

Michael T. Mulligan [00:15:10] But much of that relies upon people acting reasonably and in many cases having counsel to sort of dispassionately sort out the argument over money. All good. But once in a while, you wind up with somebody who starts cases endlessly that have no merit in order to cause grief for others or, you know, get attention or whatever it is that they are up to. And there is a process by which the court can declare somebody to be, as you’ve mentioned, a vexatious litigant, you know, that kind of person who’s starting unmeritorious claims for, you know, improper reasons. Right. To cause grief or whatever it might be.

Adam Stirling [00:15:52] mhmm.

Michael T. Mulligan [00:15:52] And if somebody is declared a vexatious litigant, it means that they can no longer just go and start a civil claim and sue somebody without getting permission from a judge. There’s a screening mechanism, right? It’s like, look, we realize you’re a troublemaker, if you want to try to, you know, sue somebody else, you’re going to have to come and explain to a judge why that claim might have some merit, lest you just pester everyone by suing them for no good reason.

Adam Stirling [00:16:19] Yes.

Michael T. Mulligan [00:16:20] And so we have that in B.C.

Adam Stirling [00:16:22] Yes.

Michael T. Mulligan [00:16:22] But a recent case came out of the U.S. Court of Appeal dealing with one of these individuals who had been declared a vexatious litigant. But the vexatious litigant then moved on to charging somebody criminally. And that’s an interesting thing to. The process of starting a criminal action to charge somebody, involves a person going before a justice and swearing an information that they’ve got reasonable grounds to believe that the other person has committed a criminal offence. And at one point in our history, private prosecution would have been common. Right. If you say, hey, that guy punched me, you could hire a lawyer, you could sue him, but you could hire a lawyer to go and charge him criminally and prosecute the person privately on your nickel. We don’t do that anymore in British Columbia. In British Columbia, crown counsel is required, when somebody goes and swears one of these information’s charging somebody,.

Adam Stirling [00:17:24] mhmm.

Michael T. Mulligan [00:17:24] To either take over the prosecution and prosecute the person in the ordinary way or stay the prosecution, end it, sort of make a decision. Does the thing of merit? If so, carry on, if not, put an end to it. But the issue here was is being declared a vexatious litigant does that stop you from charging somebody criminally. And the answer to that was, no, it doesn’t. And that’s because the civil procedures that allow somebody to be declared a vexatious litigant are enacted by the province. Criminal procedure is something which is within the exclusive jurisdiction of the federal government. The provincial government cannot make criminal law or criminal procedure. And so, the provincial scheme to declare somebody civilly is a vexatious litigant doesn’t stop them from going and swearing in information and charging a person. The remedy for that is what occurred in this case, which is crown counsel will take the thing over if it doesn’t meet the charge approval threshold stay it and that’s the end of it, or if it does take it over and proceed with it. It actually this reading this decision caused me to remember a case from Victoria a number of years ago now.

Adam Stirling [00:18:43] mhmm.

Michael T. Mulligan [00:18:43] Where there was a prosecutor, and a jury trial was prosecuting somebody for offences with respect to possession of a weapon for a dangerous purpose.

Adam Stirling [00:18:52] Mhmm

Michael T. Mulligan [00:18:53] And the crown counsel, the prosecutor in the case, had the gun in question, which was strapped up so it couldn’t fire.

Adam Stirling [00:19:00] Yes.

Michael T. Mulligan [00:19:01] But was holding it up and showing the jury the weapon in question.

Adam Stirling [00:19:05] Oh, yes, I remember this story. This is good. I love this. Yeah.

Michael T. Mulligan [00:19:08] On the break, the guy who was charged went down to the court registry and swore an information charging the prosecutor with possession of the weapon for a purpose dangerous on the basis of him holding and waiving it around in front of the jury. And that’s more complicated because you couldn’t just have the, you know, prosecutors’ colleague just stays the charge, you know, stench of impropriety. So, they had to go and hire an ad hoc private lawyer, who had not associated with the prosecutor, to review that and decide, not surprisingly, this is no merit and instructed a stay of proceedings.

Adam Stirling [00:19:44] So what happened to the proceedings that were underway? Were they paused or what happened?

Michael T. Mulligan [00:19:50] I think they would have just gone along merrily. But you can imagine the mischief being caused by that. The prosecutor being charged with doing the same thing by the accused, so there is a mechanism for all of this, and I should say that decision in rare circumstances, the decision to stay the prosecution.

Adam Stirling [00:20:10] mhmm.

Michael T. Mulligan [00:20:10] Could be, can be reviewed pursuant to what’s referred to as an extraordinary remedy in the Supreme Court. And you can imagine why, as a matter of principle, in a rare circumstance, it could be necessary to review crown’s decision to stay a prosecution. And so, as an example, let’s say this was a case not too far off of British Columbia’s experience. Let’s say the premier got, you know, stopped for impaired driving.

Adam Stirling [00:20:36] Yes.

Michael T. Mulligan [00:20:37] And the attorney general directs crown counsel to stay those proceedings against the premier because it would be politically embarrassing, for example, that might be an example of where there could be a private information sworn. And then even if Crown tried to stay it, if it was done for that kind of an improper purpose, you can imagine how pursuant to that kind of an extraordinary remedy in Supreme Court, that decision could, in rare circumstances be overruled by a Supreme Court Judge to avoid that kind of mischief. Right. If you had, you know, crown staying a prosecution for political reasons, for example, that’s the kind of thing which in a very rare circumstance, you could see a judicial decision being made to permit that prosecution to proceed. But in all, but the most extraordinary circumstance, like that one, it’s crown counsel’s obligation to apply the charge approval standard, which would be is there a substantial likelihood of conviction based on the evidence that they were aware of? And is it in the public interest to proceed? And so where a private information is sworn to crown counsel is required to make that assessment and either say, yes, it meets that threshold and then they would take it over and prosecute the person or no, it doesn’t meet that dual threshold, at which point they would stay the proceedings and that’s the end of it. But because of how the criminal code is structured, any person is free to show up. If they have those reasonable grounds to believe that somebody has committed a criminal offence, or they can swear the information. And there’s a process for a justice to hear evidence if they wish to and deciding whether to issue a process to start the proceedings going. And then it would be for crown counsel to decide what do you do?

Adam Stirling [00:22:33] All right. We’re out of time, Michael Mulligan, but we appreciate the benefit of your knowledge and insight, as always. Thank you so much.

Michael T. Mulligan [00:22:39] Thank you so much. Stay safe and have a great day.

Adam Stirling [00:22:41] Absolutely. You too. Talk to you next week.

Automatically Transcribed on November 16, 2020 – MULLIGAN DEFENCE LAWYERS