Ranch access and human reproductive material after death

 

The Douglas Lake Ranch is the largest private landholding in British Columbia. It’s owned by Stan Kroenke, a US billionaire who also owns the NHL’s Colorado Avalanche and the NFL’s L.A. Rams.

The ranch has been involved in a legal dispute for years attempting to stop people from using a road the runs through the ranch, and two lakes that are surrounded by ranch property but owned by the Province of British Columbia.

In 2018 the Nicola Valley Fish and Game Club was successful in BC Supreme Court. The judge who heard the case examined historical documents, photographs, and survey and determined that the road in question was a public road and that the public was permitted to use it to access the lakes in question.

This decision and an appeal by the ranch to the BC Court of Appeal are discussed on the show.

Also discussed are two other decision by the BC Court of Appeal:

The court dismissed an appeal from a woman who was seeking permission to use reproductive material from her late husband who died suddenly. The reproductive material was preserved as a result of an urgent, after hours, court application.

In Canada, the Assisted Human Reproduction Act, from 2004, prohibits the use of such material, absent written permission from the doner. Because the husband died suddenly, there was no written permission and, as a result, the Court of Appeal concluded that the reproductive material could not be used.

Finally, the Court of Appeal allowed an appeal from a conviction for sexual assault. The appellant was a 29-year-old woman who was convicted of sexually assaulting a 13-year-old boy. Because of the age of the boy, he would have been unable to consent to the activity as a matter of law.

The woman testified at trial that the boy had sexually assaulted her and that she felt paralyzed at the time and was unable to say no or cry out for help.

The appeal was allowed on the basis that the trial judge had not properly instructed the jury on the impermissibility of applying myths or stereotypes concerning how a victim of a sexual assault would have behaved.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

 

Automated transcript of the episode:

 

Legally Speaking Nov 26, 2020

 

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

 

Michael T. Mulligan [00:00:08] I’m doing great. Great to be talking to you.

 

Adam Stirling [00:00:10] Very interesting cases on the docket this week, including an update on a multi-year dispute between a U.S. billionaire and the Nicola Valley Fish and Game Club.

 

Michael T. Mulligan [00:00:19] It doesn’t sound like an even match up there does it.

 

Adam Stirling [00:00:21] I was going to say, when it comes to litigation and the ability to finance that, I would suspect that billionaires are very adequately provision for that fact.

 

Michael T. Mulligan [00:00:29] Yes. Well, I must say that there’s no doubt about that. The particular place in question is the Douglas Lake Ranch, which is owned by the Douglas Lake Cattle Company, which in turn is owned by Stan, hoping to pronounce this correctly, Kroenke, the owner of the NHL Colorado Avalanche and the NFL, L.A. Rams. The particular ranch in question, is apparently the largest ranch in Canada, and it is also represents the largest private landholding in all of British Columbia. Geographically, it would be if you sort of drew a line between Merritt and Vernon, it would be kind of in the middle of that area occupying a fair bit of it. And the particular issue that’s arisen, and it’s one that’s been percolating along for a number of years, has to do with access to two different lakes which are entirely surrounded by the ranch.

 

Adam Stirling [00:01:34] Yes.

 

Michael T. Mulligan [00:01:34] And as well, access to and use of a road called Stony Lake Road, which would run essentially to the lakes. And what happened is that the ranch owned by the billionaire decided to a number of years ago block off access to the road. They closed the gate and put up another gate and put up no trespassing signs and tried to stop people from accessing the road to go in and use the lakes for fishing, basically.

 

Adam Stirling [00:02:09] Yes.

 

Michael T. Mulligan [00:02:10] And there was a dispute about that, including with the local Aboriginal community.

 

Adam Stirling [00:02:15] Yes.

 

Michael T. Mulligan [00:02:15] Which that part was eventually settled, the following a blockade they gave the Aboriginal community here, I think, a key to the gate.

 

Adam Stirling [00:02:22] hmm.

 

Michael T. Mulligan [00:02:22] But they were otherwise trying to stop anyone else from coming in and using the lakes to fish.

 

Adam Stirling [00:02:30] hmm, interesting.

 

Michael T. Mulligan [00:02:31] And the reason why that’s controversial goes back to the original grant of this parcel of land back in the 1800s that the ranch eventually purchased. The Crown grant of land does not include the lakes.

 

Adam Stirling [00:02:48] hmm.

 

Michael T. Mulligan [00:02:48] The province maintains ownership over bodies of water like that.

 

Adam Stirling [00:02:53] Interesting

 

Michael T. Mulligan [00:02:53] Also, if something in this context is a public road that also wasn’t granted in the original grant of land back in the 1800s. Therefore, the ranch now can’t own, doesn’t own the road right if it’s a public road.

 

Adam Stirling [00:03:08] Hmm.

 

Michael T. Mulligan [00:03:09] Now various things complicated those issues over the years, including the fact that a number of years ago the ranch decided to erect dams and flooded part of where the original road was. And they made one of their arguments, they called at the original trial, a fellow who they claimed to be an expert, who purported to testify that one of these lakes wasn’t, in fact, the lake at all. It was, in his words, and ephemeral pond, which would seasonally hold water in the spring.

 

Adam Stirling [00:03:44] Interesting.

 

Michael T. Mulligan [00:03:45] That was rejected. The court found that these lakes were, in fact, sort of a kilometer long. For many years, the province had start them with fish. And the original trial judge found that this was a public road. And she looked back at things, including original surveys from the1800s and significantly an aerial photo of the lakes and road from back in the 1940s. And at that point, you could see in the photograph, according to the judge, that the road, in fact, ran to the lakes and that she concluded this was a public road. And the ranch, in fact, that very person purported to be an expert at the original trial, was also an engineer and he at one point engaged in damming and water diversion to the lakes which flooded where the original road was.

 

Adam Stirling [00:04:38] Interesting.

 

Michael T. Mulligan [00:04:38] So their argument was, well, there is no road running to these things. And moreover, they aren’t lakes that was the claim that did not succeed. And the Fish and Game Club triumphed over the billionaire at the original trial. And the result of that was that the ranch was ordered to open up the gates and allow people to use the public road to drive to the lakes, to fish.

 

Adam Stirling [00:05:03] Yes.

 

Michael T. Mulligan [00:05:03] , and part of the theory there is that the judge did this exhaustive examination of the original grant of land and a review of things, including through the common law surrounding the right to access property like that, I must say. The trial judge in this case must really have stayed awake in property law in law school because this is an exhaustive review of it. One of the other interesting little bits in here that I enjoyed reading, the original decision involved the ranch claim that they owned all the fish in the lake.

 

Adam Stirling [00:05:42] Hmm.

 

Michael T. Mulligan [00:05:42] Their claim was that they stopped the lake and therefore they owned the fish. And the judge rejected that argument as well, drawing a distinction between ownership of domesticated animals and ownership of what he described as feral beings such as wild fish.

 

Adam Stirling [00:06:00] Oh, yes, I do recall that language from when we covered the original story. Yes.

 

Michael T. Mulligan [00:06:04] Yeah. And so, releasing the fish into the lake doesn’t mean that you forever owned all the fish in the lake. And so, the Fish and Game Club and the public by extension, wound up essentially winning on all of those arguments, much to the chagrin of the billionaire ranch owner. And so this week, the billionaire ranch owner was in the Court of Appeal arguing that that trial decision should be overturned and arguing about things like, you know, are these navigable waters, you know, is this a pond or a lake and all of these sort of things. But the import of this case, from the public’s perspective, goes far beyond the sort of the narrow issue of, you know, can people in the Fish and Game Club or people in the area go down this public road to fish in these lakes? But it is application, for example, you can imagine in other places like on Vancouver Island, because where you have large landowning’s, holdings that managed to subsume and surround a lake, for example.

 

Adam Stirling [00:07:13] Yes.

 

Michael T. Mulligan [00:07:14] Does that mean that the person who manages to buy all the property around the lake therefore get to exclude all public from using the lake?

 

Adam Stirling [00:07:21] Yes.

 

Michael T. Mulligan [00:07:22] And where there are disputes about it, what you’re going to see are examinations, looking back at things like, you know, what was the original grant there? Because in in British Columbia, there isn’t often a grant of ownership to like when you own property, that doesn’t mean you own everything about it. For example, there can be mineral rights.

 

Adam Stirling [00:07:44] Indeed.

 

Michael T. Mulligan [00:07:44] Or the other crown can withhold rights to things like, you know, lakes and water and things of this sort. So, it requires an examination of sort of what was originally granted and what does the current owner own. And then there can also be an examination of things like because the legislation can exclude ownership to things like public roads that could be more ambiguous than it might seem. Right. Roads and I think trails, in fact. And so that can require an examination of what exactly is that, you know, road or trail where the current landowners decided to put up and lock a gate. Currently, are they permitted to do that or was in fact, that a public road, which they’ve just tried to, you know, in this case, flood or put up No Trespassing signs or put up a gate. And so, the case has bigger implications in terms of, I think, what’s sometimes referred to as the right to roam.

 

Adam Stirling [00:08:41] Yes.

 

Michael T. Mulligan [00:08:41] And in fact, there was a piece of legislation which I think was Andrew Weaver introduced.

 

Adam Stirling [00:08:46] Yes.

 

Michael T. Mulligan [00:08:47] Dealing with that which never got anywhere previously, but they didn’t pass. But the judge in the original trial decision here suggested that something like that really needs to occur. The judge said, you know, this case demonstrates that these conflicts of interest in property show that there’s a necessity for legislative action to resolve the issue. And so, there are some, I think, really important issues like this to be decided, including in places like Vancouver Island, where things can be even more complicated. We’ve got things like rail lines and grants of various rights that flowed from those things. And you’ve got crown land and you’ve got things can be I think this case makes clear much, much more complicated than what some people might think when you’re dealing with, you know, sort of residential house and yard right, you know, somebody thinks, well, that’s my property. Obviously, nobody can come into my, you know, front yard, and start, you know, fishing or enjoying recreational activities there.

 

Adam Stirling [00:09:52] yes.

 

Michael T. Mulligan [00:09:52] But it can become much more muddy when you’ve got things like historical access to a place. Or you’ve got things like navigable rivers or you’ve got things like a lake, which has been subsumed. And so it’ll be interesting to see both what the Court of Appeal does for this particular case, but whether eventually the government decides to take up some of these issues and make some bigger policy decisions about, you know, what is the extent of private landowners capacity to exclude other people? And on the other hand, should we have a model which would more clearly recognize the right to do things like, you know, show up and fish in the lake or whether if you managed to surround the thing, it’s yours.

 

Adam Stirling [00:10:43] yeah, interesting

 

Michael T. Mulligan [00:10:45] Anyway, good, good on the Fish and Game Club there, obviously been carrying on for many years doing this, but hopefully at the end of the day we get this case decided and then there can be some public input into how we ought to resolve these sort of issues more generally.

 

Adam Stirling [00:11:02] All right, let’s take our break here at Legally Speaking. We’ll be back in just a moment on CFAX 1070.

 

[00:11:06] COMMERCIAL.

 

Adam Stirling [00:11:06] Back to legally speaking on CFAX 1070 as we continue our conversation with Michael Mulligan defence counsel, with Mulligan Defence Lawyers. Michael, anything else on that last story before we move on to the next case?

 

Michael T. Mulligan [00:11:20] No, I think that I think that’s about it. We’re going to have to wait and see, of course, what the Court of Appeal does with all of this. But, you know, once again, good on the Nicola Valley Fish and Game Club for hanging in there with their battle with the billionaire owner of the Douglas Lake Cattle Company.

 

Adam Stirling [00:11:38] Indeed.

 

Michael T. Mulligan [00:11:39] We’ll see what comes of it.

 

Adam Stirling [00:11:40] Another matter to be considered by the Court of Appeal. It’s actually dismissing, I’m reading here, an appeal to permit posthumous use of reproductive material, a clinical term, Michael, for something that I suspect could be of great emotional importance to parties involved.

 

Michael T. Mulligan [00:11:55] Yes, I think no doubt about that. It certainly comes from a tragic circumstance, the tragic circumstances involved a young couple had been married for a few years, who had a child together, and then the husband unexpectedly died and the wife made an emergency after hours application to a Supreme Court Judge asking for an order to preserve reproductive material from her deceased husband. And she got that order, the state of emergency after hours order. And the judge who made the order made the order saying, look, essentially this is an afterhours emergency application, if I don’t make the order, you know, this is going to be moot by the time it can be more fully argued because the material would no longer be viable or available. So, the judge made the order. And the background is the two individuals, the deceased husband, and his wife. The evidence is that they took great joy in being parents. They had one child, but they wish to have more together and importantly wanted to have siblings for the child that they already had. And so that seemed to be common ground. All right. But the trouble arose here because in Canada, we’ve got legislation dealing with assisted reproduction that says that material of this sort cannot be used unless there is prior written consent from the party from whom it is obtained. And so, the once the case was then argued following that emergency after hours of application, the judge concluded that unfortunately the wife was not going to be permitted to use the material and would have to be destroyed. That led to this appeal to the Court of Appeal, which just came out and the Court of Appeal was grappling with various different arguments the grieving wife was making.

 

Adam Stirling [00:14:12] yeah.

 

Michael T. Mulligan [00:14:12] To be allowed to use this material. And, while the legislation seems clear. She made various arguments, including that it should be interpreted as a way in a way to say that it should only apply where a person’s death was foreseeable and shouldn’t be an absolute prohibition on the use of this kind of material where there’s an unforeseen sudden death.

 

Adam Stirling [00:14:37] Yes.

 

Michael T. Mulligan [00:14:38] That, from her perspective, was not accepted by the Court of Appeal. In an exercise of, I think, what can be referred to as judicial restraint. The Court of Appeals said, look, you know, the legislation seems clear and said, you know, to read the statute in a way that would amend it by judicial decree or something they have no right to do.

 

Adam Stirling [00:14:56] Indeed.

 

Michael T. Mulligan [00:14:58] And she made another argument, which she advanced again on the Court of Appeal to the effect that, well, look, once the judge made that order to remove the material and preserve it, it should be treated as property. And she should have inherited that property upon her husband’s death. he died without a will, and she would have been, therefore, the beneficiary of his estate interests.

 

Adam Stirling [00:15:23] Interesting

 

Michael T. Mulligan [00:15:24] And so she argued, well, this should be treated as property. And she even tried an argument saying, look, if I can’t use this material in Canada, if that’s my property, I’d like to have it sent somewhere else where I could use it.

 

Adam Stirling [00:15:38] hmm.

 

Michael T. Mulligan [00:15:38] None of those got traction in the Court of Appeal, but I should say the Court of Appeal did conclude that the, their order, that the material cannot be given to her and therefore would be destroyed should be stayed for 60 days to allow her to consider whether she wishes to advance an application to appeal to the Supreme Court of Canada. And so it may not be the end of it yet, but the case is a good illustration of just how complicated some of these sort of moral and ethical questions can be as medical science advances and permits things to occur that just people may not have contemplated. And here, the wife pointed out as well, that when this legislation was passed, making it an offence to use material like this without prior written consent, that the government had talked about trying to publicize that so the people could arrange their affairs accordingly.

 

Adam Stirling [00:16:41] Yes.

 

Michael T. Mulligan [00:16:42] And that didn’t occur in the way that was contemplated, which I’m sure is not, I’m sure it’s something that unless somebody was, you know, listening to this show and thinking about it or some similar thing, reading an article about this, how would anyone know that they would need to organize their life in a way to contemplate this kind of unforeseen circumstance? So, you know, perhaps is one more thing when somebody is in, you know, doing their will or and so forth, it’s the kind of thing which somebody may want to give some consideration to, if indeed this is something which they would want to be possible if they die suddenly. So certainly, a tragic case may not be the end of it, but at least that’s the end of it from the Court of Appeals perspective. Their conclusion was this legislation doesn’t permit any exception, it’s not ambiguous. It’s not our job to fix that. And previously, the Supreme Court of Canada has found legislation to be constitutionally permissible. So, whether the case heads there or not, I think at least as a cautionary tale for people that are trying to organize their, their affairs.

 

Adam Stirling [00:17:50] Indeed, we have four minutes left? The Court of Appeal allowing an appeal from a conviction for sexual assault on a 13-year-old boy by a woman in a Victoria transition house.

 

Michael T. Mulligan [00:18:00] Yeah, very interesting case in terms of the gender roles. Right.

 

Adam Stirling [00:18:03] Yes.

 

Michael T. Mulligan [00:18:03] You don’t see a lot of female accused in sexual assault cases. And the other interesting thing here is that the accused in this case testified that she did not initiate the conduct in question but said that the 13-year-old initiated it without her consent.

 

Adam Stirling [00:18:26] Hmm.

 

Michael T. Mulligan [00:18:27] Eventually, she testified that he had sexually assaulted her.

 

Adam Stirling [00:18:29] Yes.

 

Michael T. Mulligan [00:18:30] The boy, although younger, was both larger and heavier than her. Her evidence at trial was that she wanted to scream but could not, tried to say no, but felt paralyzed. Nothing came out when she tried to call out and the instructions that the judge gave to the jury, who did convict her, included saying that if you find as a fact that the accused made no outcry, even though the circumstances were such that it would be reasonable for her to do so, you may take that into account when deciding whether her evidence that she was actually assaulted is credible. And that and some other comments led the Court of Appeal to conclude that that was a misconstruction to the jury, because it is a failing to instruct the jury that they should not be relying upon myths and stereotypes concerning the behaviour of somebody who is the victim of a sexual assault.

 

Adam Stirling [00:19:29] Indeed.

 

Michael T. Mulligan [00:19:30] And the Court of Appeal pointed out that it’s long been recognized that there’s no rule on how people who were the victims of trauma, like sexual assault, will behave. And so, on that basis overturned the conviction and has ordered a new trial. So it’s an interesting case, both because of the gender roles which are unusual and because the Court of Appeal pointed out that, that sort of reasoning is something which is not reliable, should not be so, and that juries should be carefully instructed about that. So, a very interesting reversal of gender roles and how those that kind of prohibited unreliable reasoning can go both ways.

 

Adam Stirling [00:20:10] I think it’s useful here and I know you’ve helpfully educated us with respect to this in the past. But to remind our audience of the Court of Appeal as a court of error, it is not merely a chance to spin the wheel again and attempt to retry something. There has to be some sort of error of law that is committed that can be remedied. It’s not merely to reweigh everything.

 

Michael T. Mulligan [00:20:30] That’s true. And in cases like this, where it was a jury trial, what’s really often going on in the Court of Appeal is analyzing what instructions did the judge give to the jury?

 

Adam Stirling [00:20:40] Yes.

 

Michael T. Mulligan [00:20:41] And one of the things which a judge will often say in a jury trial is say, look, you jury the judge of the facts, I’m the judge of the law. And we’ll say you need to take what I’m telling you is the law as being the law and follow my instructions, because a judge will often say, look, if I’m wrong and what I’m telling you to do, that can be corrected by the Court of Appeal. Who’s going to assume you’ve done what I’ve asked you to do. But if you don’t do what I’m telling you to do, nobody’s going to be able to sort that out on appeal. And so, like in this case, often what goes on in an appeal on a jury trial is analyzing what exactly did the judge tell the jury to do and where those instructions are accurate. And here that instruction was found not to be accurate, and that’s why a new trial was ordered. Another interesting fact in terms of the gender roles, the judge of the trial was female and two of the three judges in the Court of Appeal were female as well, which I think is an interesting thing. So, the, I think the, the big takeaway there for all of us, right is to be aware that those kind of stereotypes are not things which should be applied. And we ought not to assume in any context that somebody who is the victim of that kind of behaviour is going to behave in a particular way in accordance with some stereotype. And be that the accused or the complainant and here the result of not pointing that out clearly enough to the jury is that a new trial has been ordered.

 

Adam Stirling [00:22:19] That’s all the time we have for today. Michael Mulligan, thank you, as always, for the benefit of your knowledge in these matters until next week.

 

Michael T. Mulligan [00:22:24] Thank you so much. Have a great, great day.

 

Adam Stirling [00:22:26] Bye now.

 

Automatically Transcribed on November 30, 2020 – MULLIGAN DEFENCE LAWYERS