Systemic Failures: Mental Health Crisis and Legal Complexities in British Columbia
Discover the hidden cracks in British Columbia’s mental health system as we dissect a recent tragic case in Vancouver that underscores systemic failures. Despite the Mental Health Act’s provisions, inadequate resources and treatment facilities have left many vulnerable individuals untreated and homeless. We’ll explore the urgent need for proactive measures and discuss how addressing mental health issues is paramount for both public safety and humane treatment.
Is the bail system in BC failing those in crisis? We scrutinize the strain on emergency departments and police resources, especially regarding mental health emergencies. Our conversation goes beyond the limitations of bail as a reactive measure and calls for a comprehensive overhaul of the system. Hear about a poignant civil case involving a police dog attack during a domestic dispute, adding another layer to the complexities of our current public safety practices.
Unravel the complexities of legal disputes and interim injunctions with our expert guest, Michael Mulligan, from Mulligan Defence Lawyers. We break down the three-part test for injunctions and the unique considerations in trespass cases, shedding light on why summary trials falter when facts are contested. Using an intriguing case about a lime green Porsche, we’ll illustrate the challenges judges face in resolving disputes efficiently. Don’t miss this enlightening discussion on the nuances of the legal system and how it impacts real-life cases.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Sep 5 2024
Adam Stirling [00:00:00] It’s time for our regular segment, joined by Barrister and Solicitor with Mulligan Defence Lawyers Michael Mulligan with Legally Speaking on CFAX. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:09] Hey. Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:11] Some interesting stories on the agenda today. Let’s dive in.
Michael T. Mulligan [00:00:15] So there are and we I’ve got a couple of cases to talk about, but I thought it might be worth just starting with a little bit of legal background on that awful case out of Vancouver. Involving the death and the person having their hand severed.
Adam Stirling [00:00:31] Yes.
Michael T. Mulligan [00:00:32] Just so people know what is currently in place in terms of a legal scheme that could be used to address this sort of thing.
[00:00:40] mmhmm.
Michael T. Mulligan [00:00:41] Hopefully it doesn’t become a common fact pattern.
Adam Stirling [00:00:42] Yeah.
Michael T. Mulligan [00:00:43] But the real tragedy there is the that that sort of an event, is both utterly unexpected and predictable, in the sense that, you know, we have in British Columbia a circumstance where we have thousands of people who are profoundly mentally ill, many of whom also have serious drug addiction and use issues, who are simply left on the street. And that is because we in the past closed the facilities that used to afford secure treatment for people who were very seriously mentally ill.
Adam Stirling [00:01:23] Yes.
Michael T. Mulligan [00:01:23] You’d have not humane and more humane to have people treated in the community. And if indeed there was treatment, that may well be so.
Adam Stirling [00:01:32] Yeah.
Michael T. Mulligan [00:01:32] But it is not so, and it’s important to know that it isn’t a lack of a legal regime that can address these things. We have in British Columbia an act it’s called the Mental Health Act. And the Mental Health Act has an existing scheme, which allows people to be involuntarily admitted for treatment in a mental health facility, where they are a danger to themselves or others. And there’s a process there for people to be certified doctors to review it and a review board to review it after a period of time. It’s a well-established and intricate system designed to do exactly that. But having an act called the Mental Health Act doesn’t do you any good if there isn’t a physical place for the people to go. That is what we are missing.
Adam Stirling [00:02:26] hmm.
Michael T. Mulligan [00:02:26] You heard in this particular case was to wait for it, of course.
Adam Stirling [00:02:30] Yes.
Michael T. Mulligan [00:02:30] As you said to all unfold. Right. But the, you know, the press conference from the police chief describing the background of the suspect in the case in terms of serious mental health problems and the danger in the community, that is what the Mental Health Act, those actions are aimed directly at. But having an act and having those provisions and we have them already, it doesn’t require any legislative change at all. What it requires is the facility for the person to be admitted to. What good is it if the police bring somebody like that or you know many other thousands of people who are in profound need of help, into the hospital? Wait. And we’ve seen in Victoria these reports just the other week of the police waiting. What was it like seven hours?
Adam Stirling [00:03:20] Yes.
Michael T. Mulligan [00:03:20] To see a doctor and then have a doctor look at the bruises? Yes. Yes. This person is seriously mentally ill they are a danger to themselves, they’re going to die of overdose of drugs. They’re a danger to somebody else. They’re acting erratically. But I’m sorry, officer, there’s nowhere for them to be. And even if they were admitted, you know, there could be a provision to admit somebody, you know, under review of one doctor and they can then be in a facility for 48 hours there’s this whole scheme, but if the room doesn’t exist, the doctors don’t exist and they don’t exist. The person’s back out.
Adam Stirling [00:03:52] Yeah.
Michael T. Mulligan [00:03:53] And so well, it’s, of course, tragic, and random and awful, to hear about those things. It’s also completely predictable. And the answer isn’t, in my view, to wait until one of the thousands of untreated, mentally ill, drug addicted people lash out and severs somebody’s hand. We know this is needed to deal with it before that happens. Don’t wait and try to deal with it as a shoplifting problem or as, you know, some total tragedy like this. Get ahead of it. This isn’t new news. And it’s not a legal problem, and it’s not a bail problem. It’s a problem with not having the resources necessary to deal with those things in advance. And so, we have thousands of people that are living on Pandora, and the answer is not to move them to church parking lots. The answer is to address those underlying problems. And if we don’t address those underlying problems, versions of this are going to continue to happen. They will just absolutely continue to happen. And it’s no longer a random act of violence in a real sense because we know those things are going to occur; just listen to the chief of police. So, we’ll have to wait and see what happens in that case. But it’s pretty clear, in my view, what we need to be doing if we don’t want those things to happen in the future, we shouldn’t just wait around for them to occur. And then be aghast at the terrible, the human consequences of it. We should get ahead of it. It’s not a humane circumstance to leave people who are in that state on Pandora or put them in a parking lot. That’s just outrageous. And so I must say, that was my reaction to that hearing the police chief talking about it and being somebody who’s in the system and seeing some of these things. It’s not just random. We have the legislation. What we need is a place where people can get that help, they need so that this doesn’t happen again.
Adam Stirling [00:05:44] Yeah.
Michael T. Mulligan [00:05:45] That’s my that’s my opening.
Adam Stirling [00:05:46] Well, and it makes sense. And we are accustomed to triage being an issue in acute medicine and in emergency rooms. But we are not accustomed to triage resulting in care being denied to a patient and that patient violently attacking us because of it. It’s a novel instance of there being not enough medical resources that are harming public safety. And I think that’s important to emphasize that. So, I’m glad you did.
Michael T. Mulligan [00:06:08] Yeah. No, it’s just part of the ongoing just failure of the health system in the province. Right. When you have people waiting 13 hours in emergency departments or the police sitting there with somebody who’s in a mental health crisis and a danger to themselves or other for seven hours all night long. The Officer has to sit there with the person and what else has to happen, you can’t just leave that person in the hospital for the nurses to deal with, for heaven’s sake.
Adam Stirling [00:06:31] Yeah.
Michael T. Mulligan [00:06:32] So, you know, it’s understandable why that’s required, but it’s just an it’s just a demonstration of just how profoundly short we are of the resources needed to prevent these things. And that’s why they are happening. And that’s why things like tinkering with the bail wording was just hopeless. It’s clear, in my view, what we need to do. We just haven’t done it.
Michael T. Mulligan [00:06:50] Done.
Adam Stirling [00:06:50] Yeah. And for our audience’s benefit, you already told us of the bail. We can’t legally use the bail system for either punishment or for medical treatment. It specifically says in the statute it can’t be used that way. So, if we tried it’d get defeated in court anyway as intended.
Michael T. Mulligan [00:07:05] And which of the thousands of people who are profoundly mentally ill and addicted drugs do you wish to detain on bail?
Adam Stirling [00:07:12] Yeah.
Michael T. Mulligan [00:07:12] We catch them stealing cheese at the supermarket. Yeah, that’s not going to work out. And moreover, we shouldn’t just wait until the person goes and commits some minor crime or major crime and then worry about the bail circumstances. Why don’t we get a little bit ahead of that? So that people are having this sort of thing occur? It’s not acceptable, and it’s predictable. And I don’t know how many more examples of this we need to have, pointing the finger at just some wording change or the problem somehow is, you know, the bail wording in the Criminal Code. It’s like if you’re if you point if you haven’t properly identified what the problem is, things you do trying to fix it are not going to succeed. And, you know, people should listen to the chief of police in Vancouver and focus on what might actually have an impact, rather than pointing the finger at changing the wording of things. We already have the legislation for it. We just need we need the places for people to go to get that sort of secure treatment. And, unfortunately, there are people who just need secure treatment. We shouldn’t get angry with them. If you’re suffering from a profound mental illness, you need help. You know, we shouldn’t get angry, and we shouldn’t wait for you to steal cheese or lash to cut somebody’s hand off. Get ahead of it. That’s what’s required. That’s what we are not doing. And that’s why we see these things repeatedly. You know when they’re all slightly different versions of, you know, hot coffee on babies.
Adam Stirling [00:08:35] yeah.
Michael T. Mulligan [00:08:35] Or random people being attacked or somebody stabbing get dying or somebody’s hand being severed. Right. Yes. Each one of those things is randomly tragic on some level, but it’s completely predictable. And I must say, the responses to these things have put people in parking lots or, things of that sort or, you know, what can we can we detain somebody when we catch them stealing money to buy the drugs they’re using while they live in a tent on Pandora? It’s just completely misguided. And so, you know, as I said, we don’t shouldn’t get angry with the people. If you have a profound mental illness, if you have a drug addiction, that’s going to kill you. We need to deal with that. We have a legislative scheme. That’s not the problem either. We need the resources to do it. And it’s just so upsetting when you see that those aren’t provided, and these are the consequences of it. So that’s my, that’s my cut on that.
Adam Stirling [00:09:21] All right. Thank you, Michael. Appreciate it. We’re going to take our quick break. We’ll return right after this with Legally Speaking on CFAX.
[00:09:27] COMMERCIAL.
Adam Stirling [00:09:27] Back on the air with Legally Speaking joined by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, thank you for that explanation of Canada’s mental, excuse me, British Columbia’s Mental Health Act, the bail system in these troubling random repeat offender problems you and I have discussed for a couple of years now. What else is on our agenda for today?
Michael T. Mulligan [00:09:45] The next case on the agenda, ironically, also involves a very serious injury to somebody’s hand. Fortunately, he still has the hand.
Adam Stirling [00:09:53] hmm.
Michael T. Mulligan [00:09:53] This was a case involved a civil claim against the Province of British Columbia Ministry of Public Safety Solicitor General.
Adam Stirling [00:10:03] mmhmm.
Michael T. Mulligan [00:10:03] Involving injuries caused by a police dog. And the fact pattern involved police got called to a domestic dispute in progress, report of woman being dragged out of bed by her ankles and making some threats. The male making some threats. He apparently left the house with a knife, keyed her car, and had been some threat to the person’s cat. So that was the fact pattern the police showed up at. The police got there. The man was out of the house and in a barn in the back of the property. And two officers showed up, one of whom decided to draw his service revolver or not revolver, service handgun and not a revolver, and pointed at the man. Told the man that he was under arrest. Told him to put his hands up. He did that. Told the man to walk out of the barn. He did that. Told the man to get down on his knees. He did that. And so, the man’s kneeling outside the barn. The other officer is standing there with a dog attached to a long lead. The officers then tell the man kneeling with his hands up to lay out prone on the ground. He doesn’t do that. He’s described by the judge as appearing calm, non-violent, and was speaking to the officers. The man’s explanation for not wanting to lay down on the stomach on the ground, as he said that there was a large puddle in front of him.
Adam Stirling [00:11:29] hmm.
Michael T. Mulligan [00:11:29] Ultimately, the judge found that the ground was wet, but it wasn’t a large puddle. So somewhere there was, I don’t know quite what, what that amounts to so water, but not a large body of water. The officer who’s holding the dog on the lead, decides to release the dog. And the dog runs at the man, and winds up seriously biting him on his hand, causing injuries as it had yet to be. The hospital, he’s off work for a couple of months. Caused pain and other things. And so, the case involved whether the police had legal authority to release the dog on the man. And there are some special provisions in the Criminal Code the police have authority to use force that other people would not be permitted to use force for.
Adam Stirling [00:12:15] Yes.
Michael T. Mulligan [00:12:16] Some of those include section 25 of the Criminal Code. It allows the police to use force to prevent harm to themselves or others. It also allows force to be used for the purpose of arresting somebody, which is interesting. Those provisions have some special provisions that would permit the use of force intended to cause death or grievous bodily harm even. For example, if somebody is taking flight to avoid an arrest. Although there’s a limiting provision there that they can’t use that kind of death or grievous bodily harm level of force if that could be prevented in a less violent manner. So that’s that sort of special provisions that allows police use additional use force to conduct, carry out their duties. And so here the judge was analyzing was it, were those covered by the decision to release the dog? And ultimately it was interesting that the judge, I think was impressed by the general quality of the evidence from the police officer who released the dog. And, you know, took pains to point out that the officer appeared to be somebody who took obvious pride in serving his community, had a difficult job, and it had to be split second decisions. But here, found that there just wasn’t, a legal basis to release the dog on the man. And, there was some frank evidence that he was asked to the officer was asked about things like, you know, what other kind of force could be used, that there was a frank admission that, you know, the officer with his gun out, couldn’t shoot a man who was kneeling with his hands up. That would be murder.
Adam Stirling [00:13:59] Yes.
Michael T. Mulligan [00:14:00] I think it’s true.
Adam Stirling [00:14:00] Yeah.
Michael T. Mulligan [00:14:01] And then there’s discussion about, well, could you have tasered him and, you know, could you back up and this and that, but ultimately, the judge concluded that this was not permitted by those provisions. And I should say, you do see, with some frequency in my line of work, injuries caused by police dogs. And some of them are very serious. And so here the result was that even though the officer, you know, had to make a quick decision, it was not the right decision and wasn’t legally justified. And so, the province has been ordered to pay the man $20,000 for lost income. He was off work for a period of time due to the injury, and he was awarded an additional $40,000 in non-pecuniary damages for the ongoing pain and suffering in his hand, it was apparently quite a serious injury. So cautionary tale and, I think, important to know there is authority to use quite a bit of force, by the police, including, in some cases, deadly force when they’re arresting somebody. But real care has to be exercised because even when they’re split-second decisions, split second and wrong. It can result in, not only serious injury or death, but in this case, even when that doesn’t occur, pretty significant financial consequences. So that’s the latest from the B.C. Supreme Court on the dog injury, police dog injury.
Adam Stirling [00:15:23] All right. As our audience knows, we had an encampment at the University of Victoria for a significant amount of time. It was protesting the ongoing conflict involving Israel and Gaza. That encampment ended up voluntarily disbanding recently at the request in any number of perhaps legal threats that I’ve heard speculated from the University of Victoria never coming to fruition as far as we know, because of course, the conflict was resolved, not the same situation that what other institutions elsewhere on Vancouver Island, there’s ongoing issues, are there not? What can you tell us?
Michael T. Mulligan [00:15:56] Yeah. So, one of those cases just resulted in an interim injunction to end an encampment. And this was one up at Vancouver Island University, just a little bit up the island. And say these interim injunction applications, we talked about that before. Many people will be familiar with the test that’s generally applied when one party is seeking an interim injunction, like in order to stop doing something.
Adam Stirling [00:16:22] Yeah.
Michael T. Mulligan [00:16:22] You know, well, the case is still outstanding. And one of the things which is interesting and I thought was worth noting in this decision, was it pointed out that that general test, the sort of a three part test, you have to assess the merits of the case, you have to see whether there’s irreparable harm and that doesn’t mean serious harm. It means like harm. You couldn’t easily sort out by payment of money later. And then there’s a balancing of interests, right, in terms of which party would suffer greater harm with or without the injunction. But one of the interesting things the judge points out here, I think people should know about it, is that when you’re dealing with an application for an interim injunction involving trespass of private property, that same balancing that comes from that RJR McDonald case does not generally apply.
Adam Stirling [00:17:11] hmm.
Michael T. Mulligan [00:17:12] And the reason for that, is that for trespass, that’s when somebody’s like occupying, you know, land that belongs to somebody else, that’s actionable without any proof of damages. Which sort of makes sense, because let’s say I don’t just decide that every day I’m going to come and stand in your driveway. I could just stand there.
Adam Stirling [00:17:30] Yeah.
Michael T. Mulligan [00:17:31] Set up a tent and just live in your front yard or something like that. Right. There may be no apparent financial loss flowing from that, right, if I just say, oh, I just pitched my tent in your yard, what’s the problem? Right. But one of the functions of having private property is that not really a meaningful concept of anyone else could just show up and live there, right. Hey, here I am, I am back and living in your front yard. And so, when there’s an application for an interim injunction on the basis of trespass, you don’t go through, a court would not go through that RJR balancing test, well you know, who would be more prejudiced here? You know, the yellow spot on your lawn for my tent versus my desire to live on your lawn? That doesn’t apply.
Adam Stirling [00:18:15] Yet.
Michael T. Mulligan [00:18:16] Get off the lawn.
Adam Stirling [00:18:16] Yeah.
Michael T. Mulligan [00:18:17] It’s not your house. You can’t be there. Now, there is a retort to that which can in some cases, there’s a there is a decision in a previous Chief Justice Hinkson, saying that, while there can be some analysis under that RJR McDonald test where there are charter issues to be decided. And so here, not surprisingly, the campers, were arguing, hey, we’ve got a constitutional right to be in camp at Vancouver Island University. But the reason that got short shrift in this decision is that there’s a previous Court of Appeal decision that determined that the University of Victoria is not subject to the charter, and that goes back to a just a fundamental principle of how the charter works in Canada. One of the very early charter cases, and the idea there is that the charter, is applicable to the government, not other private actors. Right. Like, you don’t have a constitutional right of any kind to camp in your yard. The reason that could, you know, that’s just not how the charter works.
Adam Stirling [00:19:25] Yeah.
Michael T. Mulligan [00:19:25] Like, the charter doesn’t impose obligations on private people or private parties or corporations or anyone else. It applies to the government doing things to people not, you know, what has Adam done with his driveway? And how dare he say you can’t live here, right. And so, the problem with that charter argument. Is that he doesn’t apply to the University of Victoria. It’s very unlikely to apply to the university, to Vancouver Island University.
Adam Stirling [00:19:51] hmm.
Michael T. Mulligan [00:19:51] And so the judge didn’t have much trouble, even though the judge did take the time to analyze whether that might have some application here. The conclusion was pretty quick. No, it’s very unlikely that it’s going to have any application, here. And so, the net result was the granting of the interim injunction to stop the encampment. And it’s also important to know, you know, people talk about sort of freedom of speech and freedom protesting.
Adam Stirling [00:20:17] Yeah.
Michael T. Mulligan [00:20:17] Those things. Again, that doesn’t apply to a private place. Right. You have no right to come into your living room and protest the fact that you’re the fact that you are protesting that is fascinating, but that doesn’t afford you the right to do so anywhere you want. And it doesn’t afford you the right to in this case, you know, the injunction being sought wasn’t trying to seek an injunction that would prevent somebody from holding up a sign or marching or saying something. It was, you know, get the tents and crates and so on out of there you can’t live here. And so, the injunction was granted, and that’s the latest from Vancouver Island University.
Adam Stirling [00:20:55] All right. We’ve got about 60 seconds left in today’s segment. How shall we spend them?
Michael T. Mulligan [00:21:00] Sure. Final case. It’s a case involving a lime green Porsche described as the colour of Kermit the Frog.
Adam Stirling [00:21:08] hmm.
Michael T. Mulligan [00:21:08] And the reason the case was interesting, is involves this issue of a summary trial. And when you can have won the lime green Porsche case involved a dispute about, you know, what a what the contract was to import, turns out, the person who had the possession of a Porsche paid $179,000 for the lime green Kermit the Frog Porsche. But there was a dispute about whether that was the whole amount due or whether they had to pay, 25% tax that was due on it. So, there’s a dispute, and both parties wanted to have one of these things called a summary trial, which was like a trial decided in Chambers and Supreme Court based on reading affidavits. The idea is that it is quick, get the dispute sorted out cheaper a good idea. The problem why it wasn’t applicable here is that there was a fundamental dispute about what was the agreement. What do these people say to each other? What was the, you know, was that check supposed to include the tax or not? And so, while that’s a good process and is a good way to inexpensively and quickly resolve legal disputes. It doesn’t work if the judge is just unable to figure out like, well, what was the agreement about this Kermit the Frog coloured car? And that just can’t be sorted out by reading these two completely conflicting affidavits. And so that’s what a summary, summary trial is. That’s why it works in many cases, but why it doesn’t work when the underlying problem is really what went on, not what is the legal effect of something. So that is Summary Trials.
Adam Stirling [00:22:30] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael. Thank you. Pleasure as always.
Michael T. Mulligan [00:22:37] Thank you so much. Have a great day.
Automatically Transcribed on September 9, 2024 – MULLIGAN DEFENCE LAWYERS