This week on Legally Speaking with Michael Mulligan:
A senior Saanich Police Officer was fired after the Police Complaints Commissioner confirmed a finding that he had committed 14 counts of Deceit as well as Discerptible Conduct and Neglect of Duty for falsifying the recertifications of other officers as Drug Recognition Experts.
The fake recertification of other officers as Drug Recognition Experts would have permitted them to test people suspected of driving under the influence of drugs.
The senior officer, who has yet to be identified, engaged in this conduct over an extended period, apparently commencing in 2016.
While the Office of the Police Complaints Commissioner reported the findings in his annual report, he did not identify the officer. So far, the Saanich Police department has also not identified the officer.
The discipline process took so long that the officer retired before the discipline hearing and then failed to show up. His firing, and a reduction in rank, were made retroactive.
The officer responsible for the fake recertifications should be identified, and further inquiries should be made to determine if the officers he improperly recertified were complicit in what transpired.
People who were subject to criminal charges or administrative driving prohibitions based on the tests conducted by the improperly recertified officers should also be notified.
Also on the show, the Supreme Court of Canada has refused a leave application by the Highlands District Community Association which opposed a rock quarry in the Highlands.
A rock quarry is a kind of mine and approval is provided by the provincial Mines Inspector, rather than the municipal government.
In granting approval the Mines Inspector considered a wide range of factors, including watercourses, the protection of cultural heritage, and plans to reclaim the land once the mining is complete. The Mines Inspector did not, however, consider the climate change implications of the rock quarry.
The Highlands District Community Association tried, unsuccessfully, to overturn the approval for the rock quarry by a judicial review, an appeal to the BC Court of Appeal, and finally an attempt to appeal to the Supreme Court of Canada.
An appeal of this kind to the Supreme Court of Canada requires permission, referred to as leave. Generally, leave will only be granted for legal issues of national importance.
While climate change is clearly an important issue, it is being cited as the reason for opposing everything from cars parking at Clover Point, to plastic shopping bags and, in this case, a rock quarry. In this case, the claim that climate change had not been considered did not transform a dispute about a rock quarry into a matter of national legal significance.
Finally, on the show, a claim for pay in lieu of notice for being laid off due to COVID, and then not being rehired is discussed.
While the judge concluded that the marketing manager who was not rehired at a car dealership was entitled to some compensation, this was reduced by the amount of money she had received from the CERB program. She received $15,000 rather than the $40,000 she was asking for.
An automated transcript of the show:
Legally Speaking Nov 11, 2021
Adam Stirling [00:00:00] Joined, as always, by Michael Mulligan Barrister and Solicitor with Legally Speaking, here on CFAX 1070 with Mulligan Defence Lawyers. Morning, Michael, how are you?
Michael T. Mulligan [00:00:08] Good morning. I’m doing well. Thank you very much for having me.
Adam Stirling [00:00:11] So I’ve already advised our audience, but we’re going have a little bit of a change of pace with respect to our timing today. We have a special feature that’s going to be playing instead of our 11 o’clock news at exactly 11:00 today. So, you and I, I believe, can have one long segment without a commercial break and we’ll break it around 10:50 or 10:51 if that’s agreeable for you.
Michael T. Mulligan [00:00:31] That’s just great. Thank you. Yes.
Adam Stirling [00:00:33] Perfect. Let’s dive right in. Very interesting a case with respect to a Saanich police officer fired for, does this say falsely certifying officers to be drug recognition experts?
Michael T. Mulligan [00:00:44] Indeed it does. And this comes out of the annual report from the British Columbia Police Complaints Commissioner. The report, I should say, generally isn’t all negative. Victoria, for example, seen a decrease in complaints over the past two years of reporting. Maybe that’s a function of not having enough police officers.
Adam Stirling [00:01:07] Interesting. I didn’t know.
Michael T. Mulligan [00:01:09] Not everything is negative, but this story. This report, which it was included in the annual report, is of some significant local concern, and it involves the unnamed, and that is interesting and will come back to that.
Adam Stirling [00:01:28] Hmm.
Michael T. Mulligan [00:01:28] Senior Saanich police officer who was responsible for recertifying others and its police officers as drug recognition experts, and that would come into play for drug impaired driving investigations. And unlike with alcohol, where we got readily available tools to test to see whether somebody is under the influence of alcohol or roadside screening devices, more accurate machines back at the police station.
Adam Stirling [00:01:59] Yes.
Michael T. Mulligan [00:01:59] Where there is a belief that somebody is impaired by drugs, anything from marijuana to cocaine or something. Those investigations rely upon, a large extent testing being done by officers who are certified to be a drug recognition experts. And the idea is that they can meet the demand and require a person to go through a series of physical tests looking for things like, you know, eye movements and coordination and estimation of time, various things which could allow for a determination as to whether somebody was impaired by a drug.
Adam Stirling [00:02:38] hmm.
Michael T. Mulligan [00:02:38] And the senior police officer here, according to the Office of Police Complaints Commissioner, was certifying officers and recertifying officers as drug recognition experts without doing the required testing and training to make sure that they were competent to do that work.
Adam Stirling [00:03:00] Oh no.
Michael T. Mulligan [00:03:00] And doing so intentionally and over a number of years.
Adam Stirling [00:03:05] So what does that mean for the findings that they’ve given to courts?
Michael T. Mulligan [00:03:09] Well, it’s a problem. The officer was found to, 14 allegations of defeat for knowingly signing off official documents containing misleading information. So, he was found to have engaged in these multiple instances of deceit and discreditable conduct. And ultimately, the officer who again remains unamend, which is an interesting thing.
Adam Stirling [00:03:33] Hmm.
Michael T. Mulligan [00:03:34] He managed to retire before the disciplinary hearing. And so, he was retroactively reduced in rank and retroactively fired. But he didn’t even show up at the hearing. And so, the problem here is that many of these things rely, of course, on police acting in a trustworthy fashion, right?
Adam Stirling [00:03:58] Yes.
Michael T. Mulligan [00:03:58] So the justice system sort of is premised on that being so. And so really, what needs to be looked at here because this goes back apparently years. So, the final number indicates 2018, but it sounds like it predated that. And so, what I think needs to be done is you need to look carefully at, well, what you know, what did these officers who were improperly knowingly certified to be experts when they did not meet the requirements? Did they give evidence in court? Were people convicted on the basis of that? And then other things occur under the Motor Vehicle Act that may never have gone to court, because there are various kinds of driving prohibitions that can occur and be imposed on people that don’t result in any appearance in court.
Adam Stirling [00:04:47] Interesting.
Michael T. Mulligan [00:04:48] Some of those are shorter ones, but they can have a major impact on people. People can lose their employment. You can have entries on people’s driving records. For a professional driver, that might be they can’t get an appointment. And so, it seems to me, they shouldn’t be silent about who this was. That person should be identified and then people who were affected not only by this officer’s conduct, but the various other officers who he certified to be drug recognition experts without doing what was required for them to meet those requirements. Also, we need to make sure that people who were impacted by them are notified so that we can hopefully correct some of it. And so, it’s important it’ll likely affect hundreds of people. And I think a starting point would be starting the effort to identify who was affected so that we could try to make that right.
Adam Stirling [00:05:40] Now, of course, as defence counsel, you know how all of this works. I don’t. So, if it turns out that I was sentenced to a term in prison or if I was found guilty because of a process that relied, at least in part on the special training and experience of a police officer trained in drug recognition, what happens to me? Do I, do I get set free? Or, I suppose, would be a case-by-case basis? But how does that all fit together?
Michael T. Mulligan [00:06:07] Well, part of the challenge here is timing, and this is another thing which was addressed in this annual report, are efforts that are underway to try to speed up some of these outcomes from the Office of the Police Complaints Commission. The process and we’ve seen some high-profile ones, like the former chief of Victoria.
Adam Stirling [00:06:26] Yes.
Michael T. Mulligan [00:06:26] Just how long the complaints process can take. It’s got multiple stages and it can go on for years.
Adam Stirling [00:06:33] Yes.
Michael T. Mulligan [00:06:34] This case went on so long the officer was able to retire. This dates back to 2018 and before we’re getting the decision now. And so, people affected by it right, if somebody was convicted, likely they’ve served their sentence. So, they’ve lost their job, but whatever has happened has happened to them. Now, I think we need to try to identify those cases, correct what we can. But the other point made in this annual report is that the complaints commissioner has made submissions to the government in the process to modernize the legislation to try to speed up the process. It needs to be a fair one for the officers, but it just can’t take years because by the time we get this, what do we do about that? It’s pretty cold comfort, if you find out that you were improperly convicted on the basis of evidence from somebody who wasn’t properly qualified three years ago. Right.
Adam Stirling [00:07:29] yeah.
Michael T. Mulligan [00:07:29] The damage is done. You’ve been convicted. You’ve served your sentence. You know, that may lead to civil claims, but what else do we do?
Adam Stirling [00:07:38] Yeah.
Michael T. Mulligan [00:07:39] But I would say it’s a starting point. There’s no policy reason that I can see why we would keep, for example, the identity of the officer secret.
Adam Stirling [00:07:50] hmm.
Michael T. Mulligan [00:07:50] Somebody who’s been found to have engaged in 14 allegations of deceit, that has been substantiated, discreditable conduct and has been fired as a result of that behaviour. I’m hard pressed to see why you would not want to make that person’s identity, known both in order to maintain confidence of the public, but also to start the process of identifying who, who, what other people were impacted by this officer’s conduct and by other officers that he was certified. Other legitimate questions, of course, would include things like were the other officers who this officer was intentionally deceitfully certifying, where they aware…
Adam Stirling [00:08:37] …I was going to ask, like, are there 14 officers out there who would have known or were they also impacted unknowingly by this? And wouldn’t they recognize that their training was insufficient or like, I have a lot of questions on this, certainly. Yeah.
Michael T. Mulligan [00:08:51] So those, I think, are important questions. They should be asked, but I don’t know how we asked them if we don’t know any of these people are,.
Adam Stirling [00:08:57] huh.
Michael T. Mulligan [00:08:57] and I don’t know any of the impact that people are going to take any steps. How are they going to know whether they were somebody who was impacted, and I suppose if you were during that time period subjected to some prosecution out of sandwich for alleged impaired driving by drugs, you should probably be making some enquiries because obviously there was somebody really rotten at the core of how the system was working.
Adam Stirling [00:09:24] That is deeply troubling. Up next, Supreme Court of Canada and this is a case I do recall when this litigation was commenced, I had the opportunity to speak with the Highlands District Community Association. I see it has come to the end of the road, though.
Michael T. Mulligan [00:09:36] Indeed. So, this was the final stage of some litigation concerning the construction of a mine, really I think a rock quarry.
Adam Stirling [00:09:45] Yes.
Michael T. Mulligan [00:09:46] In the Highlands, which was unpopular with many of the local residents. But probably not surprisingly so, you know, they probably aren’t a whole lot of communities that would like a new rock quarry, probably in the same category as prison or various other things that may be unpopular. And so, in British Columbia, the local municipal government doesn’t get to decide whether a mine is going to be approved.
Adam Stirling [00:10:12] yes.
Michael T. Mulligan [00:10:13] Because frankly, you probably would get zero mines or maybe some place that wants the employment. But in British Columbia, under the Mines Act, it’s the inspector of mines who can certify and approve of mine for construction. And in this case, the mines inspector looked at various things that are required under the act, and it’s quite wide ranging. Everything from, you know, reclamation of the land in effect on water courses, cultural history and all manner of things which would be looked at in deciding whether a mine to get approval or not. But the mines inspector indicated that global warming or climate change wasn’t part of the process of determining whether a mine should be approved.
Adam Stirling [00:10:58] hmm.
Michael T. Mulligan [00:10:58] And so that’s what got latched on to that went through a judicial review in the Supreme Court. And then that was unsuccessful from the Community Association’s perspective until they went to the B.C. Court of Appeal. And that was unsuccessful. And so, then they tried again, getting leave to go to the Supreme Court of Canada and the Supreme Court of Canada just finally came back and said no to the leave application. I guess a few things are bound up in that. First of all, the point people should always you don’t get to go to the Supreme Court of Canada simply because you don’t like your decision.
Adam Stirling [00:11:33] No, no.
Michael T. Mulligan [00:11:34] You need to ask permission, and the court will generally grant permission where there’s some legal issue of kind of national importance.
Adam Stirling [00:11:41] Yes.
Michael T. Mulligan [00:11:42] And this wasn’t that. The other big takeaway here is attaching climate change to whatever point it is, you would argue, doesn’t necessarily turn your local issue into an issue of national importance.
Adam Stirling [00:11:55] Yeah, I was also skeptical of the rational link between climate change and one specific rock quarry in highlands when this matter came up a while ago, and I’ve noticed actually a pattern in environmentally focused litigators, continually trying to get jurisprudence that recognizes climate change among these issues. I’m not aware of any, but I know there are more and more attempts, it seems.
Michael T. Mulligan [00:12:18] Yeah, you see tacked on everything from the design of Clover Point.
Adam Stirling [00:12:22] Yeah.
Michael T. Mulligan [00:12:22] Whether to have plastic bags in Saanich or whether the rock quarry one, none of which are likely to be a core problem.
Adam Stirling [00:12:31] And I love how we had to get a real climate scientist. Andrew Weaver had to come out and say no climate change will not be altered by closing off half of Picnic Point, we had to get an official scientific expert opinion on that.
Michael T. Mulligan [00:12:43] No, you’re going to only with your plastic bag, shopping bag, with your picnic lunch. It’s not going to do it one way or the other.
Adam Stirling [00:12:50] All right. All, we’ve got to go four minutes left. An employee of a car dealership losing a job amidst COVID 19 now suing, seeking some $40,000 pay in lieu of notice.
Michael T. Mulligan [00:13:03] Yes, indeed. So, this is an employee of a car dealership in Vancouver. She had a job doing marketing, web-based marketing, and other marketing. When COVID struck, she wound up being laid off. She’d been working there for about eight months by that point. And she wound up receiving CERB for a number of months. And the as you may recall, the time period for which somebody could receive CERB was extended at that time and the time for which an employer was permitted to lay somebody off was extended before they were deemed to have been terminated.
Adam Stirling [00:13:36] Oh yes.
Michael T. Mulligan [00:13:37] And then she had various communications by email saying, you know, can you guarantee my job back to which she would get responses like, we can’t guarantee anything. The economy is in turmoil. We’re doing our best. And then eventually, she was deemed to have been dismissed after she was on CERB, I think it was for four or five months. And so, she sued, seeking eight months of notice, some $50,000 dollars she wanted. And ultimately, the judge concluded that she wasn’t entitled to that much additional pay in lieu of notice. She, the judge, found that $25,000 was an appropriate amount, but then deducted from that $10,000 of CERB payment she would have received over that period of time. I thought the case was notable and worth commenting on because we’re dealing first of all with that issue, how do you deal with CERB payments.
Adam Stirling [00:14:35] Yeah.
Michael T. Mulligan [00:14:35] And how do we factor into notice? Because the concept is that an employer can fire an employee at any time presumptively for no particular reason, just like an employee can for no particular reason just say I quit.
Adam Stirling [00:14:49] Indeed.
Michael T. Mulligan [00:14:49] I don’t’ want to be here anymore.
Adam Stirling [00:14:50] Yeah, but from the employer’s perspective, they either need to give notice, right, sufficient notice to the person, hey, I’m terribly sorry, but we have to eliminate your job, six months from now, I’m just telling you can look for something else or if you don’t do that pay the person in lieu of the notice. That would be an implied term contract of employment. And how long that would be would depend on things like how long have you worked there for and how unique is the nature of your employment? Could you find some other comparable employment? And so here was this decision, and it dealt with how long and how much that should be, and particularly in the context of somebody who had several months of CERB payments or how that should factor into it. So, the decision she got some payment, but not the amount is entitled to and there was to be a deduction for those payments that you did receive from the government.
Adam Stirling [00:15:46] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. As always, we appreciate the benefit of your expertise and insight into these matters. Our slightly truncated segment this week, looking forward to another full conversation next Thursday, as always, my friend.
Michael T. Mulligan [00:16:00] Thank you so much. Stay safe and have a good day.
Adam Stirling [00:16:02] All right. Bye now.
Automatically Transcribed on November 17, 2021 – MULLIGAN DEFENCE LAWYERS