This week on Legally Speaking with Michael Mulligan:
In a recent decision the Supreme Court of Canada has affirmed that when someone is arrested and charged with an offence, the presumption is that they should be released without the imposition of any conditions.
Any conditions of release that are imposed must be clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention.
In British Columbia, courts have been using a 24-page “pick list” of bail conditions, and accused people were routinely being released with numerous conditions selected from it. As a result, a large number of people end up being charged with breaching bail conditions.
The Supreme Court of Canada made clear that the setting of bail is to be an individualized process and there is no place for standard, routine, or boilerplate conditions.
The Supreme Court of Canada further concluded that for someone to be convicted of breaching a condition of release, the Crown is required to prove that the person intended to breach their bail conditions or were reckless about it. This is a change from how British Columbia courts had been dealing with breach of bail charges.
The case the Supreme Court of Canada was dealing with involved a man from Courtenay who was convicted for failing to come to the door when the police rang his doorbell to confirm his compliance with a curfew condition. The man was home but did not hear the doorbell in his bedroom.
Also discussed on the show is a case involving social host liability arising from a tragic car accident on Salt Spring Island following a teenage house party.
While people hosting private parties for adults are not, generally, responsible for car accidents their guests have, there can be a liability for commercial establishments serving liquor, or where there is a duty of care arising from a failure to adequately supervise children.
The case involved parents who permitted a house party that involved teenagers drinking alcohol and smoking marijuana. The parents concluded that because this activity would go on regardless, it would be better to permit and supervise it.
The parents took steps including collecting car keys from people who drove to the party and driving several teenagers home at the end of the night.
Unfortunately, two teenagers who attended the party walked away and took a car parked at a neighbour’s house that had keys left in it. There was a car accident and the driver died. The 17-year-old passenger, who suffered life-altering injuries, sued the parents.
The judge in the case concluded that the parents were not responsible for the accident on the basis that they had taken reasonable steps in the circumstances, including the age of the children.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Legally Speaking June 18, 2020
Adam Stirling [00:00:00] It is time for, Legally Speaking, with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:06] I’m doing great. Thank you very much for having me.
Adam Stirling [00:00:08] Some very interesting stories on the docket today, including one that I often find myself wondering about in terms of intent, criminal mind. And at the same time, I’m often told that ignorance of the law is not an excuse for unknowingly breaking the law. I always wondered how that contradiction was reconciled in certain situations.
Michael T. Mulligan [00:00:26] Well, sometimes with some difficulty, …the answer.
Adam Stirling [00:00:29] Good Answer, that’s a good one.
Michael T. Mulligan [00:00:31] We have an important decision that tries to address that in the context of bail, alleged breaches of bail, that came out of the Supreme Court of Canada, just this morning. And this is a case that actually originated up in Courtenay on Vancouver Island here. And it was originally a case where a person was charged with a drug offence and they were released on bail with a bunch of conditions. And the conditions, in this case, included a curfew, the person be at home, but it also included the condition of the person present themself to the door, if a police officer or bail supervisor came and rang the bell of their house, and I think it even said they had five minutes to present themselves to the door. Well, the police showed up on two occasions and rang the doorbell and nobody came to the door.
Adam Stirling [00:01:19] Hmm.
Michael T. Mulligan [00:01:19] And so this man wound up being arrested eventually and charged with breaching his bail conditions, both breaching the curfew and not showing up at the door. The man had a trial in the breach of bail conditions because they are a criminal charge like any other. And the man testified, and he said, well, yes, indeed, I was home, but I was in my bedroom and you can’t hear the doorbell from my bedroom. And, well, that’s why I didn’t come there. I wasn’t out. I just didn’t hear the bell. And the judge believed him or at least was left with a reasonable doubt about whether he was, in fact, home, because the judge found him not guilty of breaching his curfew, but did convict him of failing to show up for the doorbell. And so, the issue became this issue of, well, what is the mens rea, or the mental requirement to be guilty of the offence of breaching your conditions of bail? Because criminal offences require two things: One would be the actus reus, not showing up in response to the doorbell, but then they also require somebody to do something intentionally. We don’t punish people criminally for accidents, for example. Right.
Adam Stirling [00:02:29] Hmmh.
Michael T. Mulligan [00:02:29] And so the trial court, the original at the original trial, the judge applied what would be referred to as an objective fault test for that mens rea or the mental element requirement. And the objective approach would be to ask yourself, well, did what the person do amount to a marked departure from what a reasonable person would do? Sort of an objective thing.
Adam Stirling [00:02:52] I recall that from our dangerous driving discussions.
Michael T. Mulligan [00:02:54] Yeah, that’s right. Rather than saying, well, what did this man actually have in his mind, did this man actually hear that the doorbell and failed to show up at it. Because the judge at least accepted he was home, He said I couldn’t hear it. And so, what do you do? Judge, convicts him, it goes off to a summary conviction appeal and the B.C. Supreme Court, that judge upholds the conviction. It goes to the Court of Appeal in British Columbia. Five judges there uphold the conviction and then it goes off to the Supreme Court of Canada, who today found that all of the other judges involved got this wrong and that the requirement is that you must show that the person actually knowingly, intentionally didn’t do it, do as required or that they acted recklessly. Which is something very close to intentionally not doing it, right if somebody, I guess, realizes the police were coming and just plugged their ears and started singing so they couldn’t hear the doorbell? That might get you to recklessness, right?
Adam Stirling [00:03:53] Indeed, okay.
Michael T. Mulligan [00:03:53] You know, I didn’t hear the doorbell. That’s really important, but the case is very important, not only for changing clearly what the making clear what the requirement is to be convicted of breaching your bail, but the other reason why this case is much more important than that. Is what the Supreme Court of Canada talks about in terms of how we should all be approaching that issue of bail and conditions put on people. And this is the second Supreme Court of Canada case in just a few years as address that. And in this one, the court has made very clear that the approach which we have been following in British Columbia and elsewhere is not an appropriate approach. One of the things which happens routinely, in the criminal justice system,
Adam Stirling [00:04:42] mmhmm.
Michael T. Mulligan [00:04:42] Is that we wind up in posing what is sometimes called sort of boilerplate conditions on, for example, somebodies release. In fact, in British Columbia, there’s a thing called a bail picklist, which goes on for 24 pages with all manner of various things in it. You know, sort attend school or, they all have numbers to make it even easier to sort of type up these orders with all kinds of conditions. I think this man had like 16 conditions or something on his bail. And the Supreme Court of Canada in this case has made clear that the default is that a person should be released with no conditions other than the requirement that they attend court. And if any condition at all is to be imposed, it is not to be some routine boilerplate pick list condition and instead, any condition that has to be imposed has to go to the legitimate considerations of bail, like making sure the person is going to show up in court, for example.
Adam Stirling [00:05:39] Yes.
Michael T. Mulligan [00:05:40] That a condition has to be carefully considered, it has to be tailored to the person, and we shouldn’t just automatically pick a bunch of things that sound like, well, they might be a good idea here. And they give for example, let’s say you put a person, let’s say a young person who arrested for shoplifting or something. It can be very tempting when somebody is making a bail decision to say things like, well, let’s just list a bunch of conditions which would describe a child who’s not having any trouble, let’s list be home by 9:00 p.m., attends school every day, don’t consume alcohol, don’t use marijuana, you know, report to the bail supervisor once a week. Whole bunch of things that sound like, well, that seems like a good idea.
Adam Stirling [00:06:20] Yes.
Michael T. Mulligan [00:06:20] But of course, listing a bunch of things doesn’t make all those things happen and doesn’t turn a person who’s got a drug addiction and to somebody who is drug free by listing, don’t have drugs. Right.
Adam Stirling [00:06:31] Yeah Yeah
Michael T. Mulligan [00:06:31] All you do is you create the prospect that you may be criminally convicted for skipping school or using alcohol, for example. It doesn’t make the person no longer an alcoholic. It just subjects them potentially to the prospect of a criminal conviction. And so the other reason why this case is so important is it admonishes everyone, crown, defence, judicial officials, not to, for example, go to your pick list and just pick off a bunch of routine conditions that sound like a really good idea to sort of make sure this person’s back on track as a bail condition. Some of those things may be perfectly appropriate if the person is found guilty. And you were, for example, creating a probation order. Right.
Adam Stirling [00:07:15] Yes.
Michael T. Mulligan [00:07:15] And to rehabilitate the person. But that’s not what a bail order is to be. And the other thing the court, I think, astutely picks up on is oftentimes a person winds up with this long list of conditions by agreeing to them, sometimes without a lawyer, sometimes with duty counsel or somebody who’s helping. What happens is person gets arrested, crown suggests, so we’ll agree to this person’s release on a bunch of conditions or 16 of them here. And the person says, yes, yes, yes, I want to get to here right now. Right.
Adam Stirling [00:07:46] mmhmm.
Michael T. Mulligan [00:07:46] And agreed to all these things. And then off they go, but that seems expeditious at the time. But then, of course, it subjects the person to a grave risk of breaching the conditions, being charged with breaching them and then a very large percentage of what we do in the criminal justice system are these what they call administration of justice offences.
Adam Stirling [00:08:07] yes.
Michael T. Mulligan [00:08:08] People charged with, you know, consuming alcohol contrary to their bail order or breaching their probation by being late reporting to their bail supervisor. And there’s a very high percentage of cases which are just those kinds of things. And this case admonishes everyone involved, defence counsel, crown, judicial officials to remember, people are presumed to be innocent. The presumption, in most cases, is that a person should be released with simply their agreement to attend court and do not start going through the 24 pages of pick list conditions, picking off a bunch of things you think might be a great idea in terms of, you know, like some of the things we hear, like counselling treatment, drug and alcohol prohibitions, all kinds of things. Right. All of which may be in some particular case, if it’s tailored to that individual, the minimum required number of conditions, you might be able to justify them. But the Supreme Court of Canada has said, stop doing what we have been doing and winding up just reactively imposing a whole list of boilerplate conditions. And then they made clear that if there is an alleged breach of something like the conditions here, the crown would be required to prove the full mens rea that the person knowingly did that. Right.
Adam Stirling [00:09:27] yes.
Michael T. Mulligan [00:09:28] Not, you know, sorry, a reasonable person would have had a louder door doorbell or, you know, slept in the living room so they could hear it better. That won’t be enough. Pointing out that these are criminal offences. You can be, and here’s the other thing, remembering everyone, of course, is presumed to be innocent, you can have a circumstance where it’s not clear in this case, for example, this individual, of course, may have been found not guilty eventually of the substantive drug offence.
Adam Stirling [00:09:53] Yes.
Michael T. Mulligan [00:09:54] But if you’re convicted of failing to show up for the doorbell, you can wind up with a criminal record for that, no matter what happens down the road with the original thing that you were charged with.
Adam Stirling [00:10:04] Profoundly unsatisfying.
Michael T. Mulligan [00:10:05] Right.
Adam Stirling [00:10:06] Yes
Michael T. Mulligan [00:10:06] So this is an important case. It clarifies this point, but it also makes some really important points for all of us that are dealing with people every day to just not get into the routine of picking a bunch of good sounding conditions and routinely putting people in a position where they’re going to be subject to breaching them. So, a really important decision released today and came from Vancouver Island.
Adam Stirling [00:10:30] Fascinating. I want to take a quick break here. Legally Speaking, will continue with Michael Mulligan from Mulligan Defence Lawyers right after this.
Adam Stirling [00:10:37] We continue with, Legally Speaking, Michael Mulligan from Mulligan Defence Lawyers. Social host liability, Michael, what does that mean?
Michael T. Mulligan [00:10:44] Wow, that’s a good question, we’ve been trying to answer for some number of years now. We once again have, I think, a little bit more clarity on that with respect to social host liability relating to children. And this was a decision just released this week, and it was a decision from the B.C. Supreme Court in it arose originally from a night from of 2012 on Salt Spring. And back in 2012, there was a real tragedy there. They were parents of 17-year old who decided they were going to permit a house party at their home, where they would allow the kids there to consume alcohol and marijuana. Their thinking was, well, the kids that are 17 are doing that anyways and better that we supervise them and, you know, make sure people turn in their keys and so on rather than having them go off into the bush somewhere and do that sort of thing. So that’s what the parents decided to do.
Adam Stirling [00:11:47] mmhmm.
Michael T. Mulligan [00:11:47] Tragically, at the end of this party where people had been consuming alcohol and marijuana, a couple of the kids went off and they walked off and found the neighbour’s car, Subaru, which had the keys left in it. And I must say, I smiled at this from a perspective of how things operate on Salt Spring, the evidence was people at least of that time are very trusting. The neighbours are trying to fill the Subaru for an extended period of time. Somebody called and said oh, yes, I’m interested in it. And so, they said, well, we’ll just leave the keys in the car. You come by whenever you like and try it out, though. So very interesting….
Adam Stirling [00:12:20] I like that level of social trust. That’s that’s rather idyllic.
Michael T. Mulligan [00:12:24] Yes, I thought so as well. So, the person. No. Nobody did show up, but they just left the keys in the car. Apparently not unusual in Salt Spring.
Adam Stirling [00:12:31] Huh
Michael T. Mulligan [00:12:31] So wonderful on one level. Tragically, though, a couple of the kids from the party went there and took the Subaru and went for a drive in it and crashed. And tragically, that the driver of the car died in the car accident and the passenger in the car was very seriously injured. He was 17 at the time, he was in a coma for 12 days and then that rehabilitation. He had to relearned how to speak and eat and is still now living in an assisted living facility now. So tragic result. Now, the 17-year-old who survived, but had those very major problems sued various people, including the parents who hosted the party. And his claim against the parents was alleging that they had liability for what happened to him as a result of this concept of social host liability. Now, the Supreme Court of Canada back in 2006 found in a case, it’s a Childs, was the name of the person involved with it. In that case they found that, generally speaking, there isn’t going to be social host liability with respect to adults that come over to your home for a party. But they pointed out that there could be some special circumstances, that there could be some social host liability on the basis that there would be a duty of care to other people using the highway to avoid, you know, car accidents and so on.
Adam Stirling [00:14:06] Yes.
Michael T. Mulligan [00:14:06] And they suggested that some of the limited circumstances where there could be social those liability in Canada would include things like if you intentionally attracted or invited people to your home where there’s an obvious risk, that sort of suggestion. But the second one of the possible circumstances was this: where there was a paternalistic relationship of supervision and control, such as a parent/child or teacher/student. And then there’s a third one which can occur where you have a commercial enterprise like a bar that over serves somebody, knowing that they’re then going to drive. They could have some responsibility on the basis that they have sort of a public function and a responsibility to the public at large. So social host liability isn’t generally going to apply to adults in Canada, but could apply to commercial enterprises that are selling alcohol and in some circumstances can apply where there’s this sort of paternalistic relationship like children, young people, and so that’s the basis of this case went forward. Ultimately, the judge found that in this circumstance, that claim was not well-founded and denied compensation from the parents and pointed out that, you know, the judge pointed out that what is required of somebody would be conduct, which would be in accordance with what an ordinary, reasonable, imprudent person would do or, you know, careful and prudent parent, not a standard of perfection. Like it’s not enough to point out, well, you could have done more.
Adam Stirling [00:15:39] Yeah.
Michael T. Mulligan [00:15:39] And the parents here, well, they permitted people use alcohol and marijuana. They made sure the keys were collected. They walked through the party to make sure people were behaving okay, nobody else drove or they were impaired. And the court concluded the look is just not reasonably foreseeable, that somebody who didn’t drive there is going to walk off, take a Subaru or take a car.
Adam Stirling [00:16:00] Yeah.
Michael T. Mulligan [00:16:00] And then go and get an accident. The parents didn’t have a duty to foresee and prevent this tragedy.
Adam Stirling [00:16:08] Yes.
Michael T. Mulligan [00:16:08] And so the big takeaway here would be that you need to be careful, of course, you need to act reasonably, right?
Adam Stirling [00:16:15] Yes.
Michael T. Mulligan [00:16:15] And in many respects, that’s sort of what the law boils down to. And one would hope it is, right?
Adam Stirling [00:16:20] It should in my view, Yeah.
Michael T. Mulligan [00:16:22] You’ve got to be prudent. You’ve got to act like an ordinary, reasonable person, you know, and if somebody was saying, look, you know, just go for it, I don’t care if you’re drunk. Good luck getting home. You might well wind up attracting some liability. Here, the parents and other things like they, themselves, drove some of the children home at the end of the night. And the court also pointed out that the amount of supervision required also depends on the age of the children being supervised. And the court said, look where the child is 17 years old, as in this case, I accept that the degree of supervision and control is at the lower end. Right. You would owe, I think, a much greater duty of care if you were, you know, permitting, you know, 13-year old to drink alcohol and then just hit the road. Right. But there would be a scale of these things and, well, there’s still some obligation to act reasonably and be prudent. The court found, I think, quite sensibly, the parents here, while, not engaging in perfection, where at least making reasonable efforts, getting keys, driving kids home, supervising what was going on there and the rationale for permitting this was better here under my supervision than having people go out and do it in a completely unsupervised way. And for all of those reasons, found that even though there is some obligation when you’re dealing with children, that it wasn’t so far as to create social host liability in that case.
Adam Stirling [00:17:46] Fascinating. We have four minutes and 15 seconds left. How shall we spend them?
Michael T. Mulligan [00:17:51] Well, I think probably this one deserves at least four minutes. This was another case from the B.C. Court of Appeal, in a case called Bacon. It’s from the Surrey 6 murder case,
Adam Stirling [00:18:01] Yes.
Michael T. Mulligan [00:18:01] People may have heard something about. This was a terrible case from a number of years ago where six people were murdered in Surrey and Bacon, the accused was alleged to have, or charged with committing one count of first degree murder and allegedly ordering the killing of a rival leading to the murder of the other six. That was the theory of it. But the case went on for months. Having these hearings, dealing with the conduct of the police and eventually the judge concluded and the crown, I think didn’t take issue with that conclusion, that the police engaged in what was described as egregious misconduct amounting to an abuse of process and led to the trial judge staying or discontinuing the murder prosecution on the basis of this conduct she found to be just so egregious as to amount to an abuse of process. And the decision which just came out was the decision from the B.C. Court of Appeal reviewing that judge’s decision to stay the proceedings. And ultimately, the Court of Appeal concluded that, while there was clearly this egregious conduct, which they don’t describe here. And that’s an important point made as well.
Adam Stirling [00:19:12] hmm.
Michael T. Mulligan [00:19:12] They find that the trial should have been nonetheless permitted to proceed and has directed that that be so. The other thing, which is I think really interesting about this, is the Court of Appeal doesn’t set out what that egregious conduct was, nor did the judge on the basis of claims by the Crown that it was privileged, whatever they were doing, and that it might interfere with the fair trial. But the Court of Appeal also pointed out this, this is an important broad principle, particularly from a media perspective.
Adam Stirling [00:19:42] Yes,
Michael T. Mulligan [00:19:42] The Court of Appeal pointed out that in addition to the trial judge conducting some of these pre-trial hearings in secret, like closed courtrooms so that people couldn’t hear them and in fact, didn’t allow the accused or the accused lawyer to attend many of them, instead appointing an amicus to argue the other side so the accused wouldn’t even find out what all the police were doing. The Court of Appeal pointed out that that should really be an exception. But in this case, in some circumstances, the trial court not only sealed the courtrooms, but didn’t allow there even to be posted the fact that the hearings were going on, conduct to them in complete secrecy.
Adam Stirling [00:20:20] hmm.
Michael T. Mulligan [00:20:20] And the Court of Appeal pointed out that no respectable view proceedings that do not allow for even that minimal degree of oversight should not occur. Right. We just can’t have completely secret court proceedings where you can’t even know that there is a court proceeding going on such that you might be able to challenge the or review it. They said that’s an anathema to our justice system.
Adam Stirling [00:20:44] Indeed.
Michael T. Mulligan [00:20:44] And so that’s, I think, an important takeaway here. But we’re still left not knowing what on earth was this egregious conduct of the police and members of the community how do we assess that? Presumably now we’ll have a trial on the merits, but we may never find out what exactly was this egregious misconduct that despite having found that it occurred the Court of Appeal has now said that this thing should proceed. So important, both in terms of important case, really shocking degree of secrecy being imposed here.
Adam Stirling [00:21:16] Yes.
Michael T. Mulligan [00:21:16] And from a public perspective, looking at it, you’re still left wondering what on earth happened here and why was it so serious that the judge concluded this trial can’t proceed at all? And we may never know. So that’s interesting. Hopefully in the future, at least, we’ll know that such a hearing is going on. But we’re still left in the dark wondering what on earth did the police do so serious that led to the murder charge being stayed.
Adam Stirling [00:21:40] Michael Mulligan Barrister and Solicitor of Mulligan Defence Lawyers, Legally Speaking, a second half hour, second hour every Thursday here on CFAX 1070. Michael, as always, thank you so much for your knowledge and your insight until next week.
Michael T. Mulligan [00:21:51] Thank you so much.
Adam Stirling [00:21:52] All right. Have a good day. Bye now.
Automatically Transcribed on June 18, 2020 – MULLIGAN DEFENCE LAWYERS