Self-defence and Charge Approval and the BC Government in Court with Government Lawyers
The episode begins by discussing the decision to discontinue a prosecution arising from a Nanaimo business owner who gets shot after trying to retrieve his stolen property from a homeless camp.
Crown Counsel has a duty to only approve and proceed with criminal charges where there is a substantial likelihood of conviction.
In the case involving the business owner who was shot while attempting to recover property from a homeless camp in Nanaimo, further police investigation revealed that the initial allegations made by the business owner were not accurate.
The business owner initially claimed the is attended the homeless camp unarmed, with three other men, to look for stolen property.
Further police investigation revealed that the business owner attended with six or seven other men and that he and others in the group were armed with batons, a 2×4, and bats of broomsticks. They were also wearing protective gear and gloves with hardened knuckles.
The police investigation also uncovered a video of the business owner hitting a camper in the head with a baton. The business owner had also thrown a camper and his girlfriend down an embankment.
The business owner stopped operating with the police.
The new information uncovered by the police made it clear that self-defence would be a real issue at trial. Where self-defence is an issue, the Crown would need to prove, beyond a reasonable doubt, that it was not applicable.
Given the inaccurate report made by the business owner and the evidence uncovered by the police that the business owner was armed and had hit a camper on the head with a baton and thrown two people down an embankment, the Crown concluded there was no longer and substantial likelihood of a conviction for an offence relating to shooting him.
Also, on the show, two separate pieces of litigation between the BC Government and virtually all of the lawyers who work for the government are discussed.
The first case arises from a dispute between the BC Government and the Crown Counsel Association. This case involves the obligation of the government to negotiate with the Crown Counsel Association over the terms of employment for Crown Counsel, assigned to conduct bail hearings on weekends and holidays.
Following the expiry of an agreement with the Crown Counsel Association, the BC Government took the position that it could unilaterally dictate the terms of employment. The Crown Counsel Association took this issue to arbitration and won: the Arbitrator ordered the government to negotiate.
Not liking this result, the BC Government is attempting to get a judge to overturn the arbitrator’s decision rather than engaging in negotiations.
The second case discussed involves virtually all lawyers working for the BC Government who are not Crown Counsel. These lawyers voted overwhelmingly to join a union called the British Columbia Government Lawyers Association.
The government didn’t like the idea of these lawyers having their own union, so it passed legislation forcing them to join a union called the Professional Employees Association.
The lawyers involved didn’t want to be a part of this union, and the union, for its part, didn’t want to represent a group of people who didn’t want to join it.
This has resulted in the British Columbia Government Lawyers Association suing the BC Government on behalf of the government lawyers alleging that forcing membership in the unwanted union violates the constitutional right to freedom of association guaranteed by section 2 (d) of the Charter.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.