The Legal Systems of Canada and New Zealand and Their Impact on Indigenous People and Drug Laws

 

Common Law Cousins: Canada & New Zealand

Embark on a journey through Canada and New Zealand’s legal intricacies with Michael Mulligan from Mulligan Defense Lawyers as we dissect how these common law cousins approach justice, representation, and the battle against drugs. You’ll be captivated by our discussion highlighting the disparities in Indigenous peoples’ representation in the prison systems—a pressing issue both here and in the land of the long white cloud. And if you’re intrigued by the varying tactics in the war on drugs, our analysis of how New Zealand’s crystal meth problems contrast with Canada’s fentanyl crisis will provide you with a new perspective on a global challenge.

Let’s transport you to a Kiwi courtroom, where the protocols of bail hearings and the role of police officers in lower court prosecutions might astound you. Michael Mulligan brings his legal acumen to the table, shining a light on recent cases and legislative changes that affect our lives. We’ll also unearth the history and impact of British Columbia’s Crown Counsel system.

The Patients Property Act and its Implications

Next, we delve into the Patients Property Act, revealing its implications for those with disabilities in our communities. Prepare to be enlightened as we navigate the ebbs and flows of international justice and its local impact in a conversation that promises to be as informative as it is thought-provoking.

 

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 April 4, 2024

Adam Stirling [00:00:00] It’s time for our regular statement with Barrister and Solicitor with Mulligan Defence lawyers, Legally Speaking. Morning, Michael Mulligan, how are you doing?

Michael Mulligan [00:00:08] Hey. Good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:10] Some fascinating stories on the agenda this week, including a brief explanation of why. And there were listeners that noticed that you weren’t here during the second half of our second hour last Thursday. You were doing something really interesting, though. What was happening?

Michael Mulligan [00:00:23] Well, I do what any good lawyer does on vacation, which was go to court in another country. You see, you go there.

Adam Stirling [00:00:30] Excellent.

Michael Mulligan [00:00:31] Doesn’t that sound like so much fun? Who wants to go to the beach? We all want to go to criminal remand court somewhere else.

Adam Stirling [00:00:36] So what happened?

Michael Mulligan [00:00:38] So I over spring break, I had the opportunity to be in New Zealand.

Adam Stirling [00:00:42] Yeah.

Michael Mulligan [00:00:43] And spent a fascinating day at the courthouse there watching criminal procedure and then having a very interesting discussion with a lawyer working in that system. And one of the reasons I thought that was worth talking about is, New Zealand, of course, is a common law jurisdiction. Its background is, like ours, British. And so, there are all kinds of similarities between British Columbia and New Zealand in terms of their legal system, criminal law system and how that works. B.C., by the way, he has an almost exactly the same population as New Zealand, about five million, just over. And New Zealand has a court system that’s not, not a whole lot different from what we have here in British Columbia. In British Columbia, here we have a provincial court, right, which says most of the criminal cases. Then we have a Supreme Court, Court of Appeal, and you can eventually go up to the Supreme Court of Canada, in some cases. In New Zealand, their provincial court equivalent is called a district court,

Adam Stirling [00:01:42] hmm.

Michael Mulligan [00:01:42] Or supreme court is called the High Court. Then they got the Court of Appeal and the Supreme Court.

Adam Stirling [00:01:47] Interesting.

Michael Mulligan [00:01:47] So almost the same. Now there are a few elements of that, which are different. And those are the things which are really, I think, worth commenting on and I found most interesting being somebody who’s in the system every day. And given that, you know, the public discussion about, what things we could be doing better or how things could be worse, and one of the things which was most immediately apparent there watching is a parallel between both British Columbia, Canada, and New Zealand in terms of, the Indigenous population in the criminal justice system. And that has been a perpetual problem in Canada.  The in Canada, the Indigenous population is about 5%. And in contrast, about 32% of the people in jail are Indigenous.

Adam Stirling [00:02:36] hmm.

Michael Mulligan [00:02:36] It’s about six times the rate that you would expect based on the size of the population.

Adam Stirling [00:02:41] Yes.

Michael Mulligan [00:02:41] In New Zealand, their Indigenous population are called Maori, right.

Adam Stirling [00:02:46] mm hmm.

Michael Mulligan [00:02:47] And it’s a larger percentage of the population. Just over 17% of the people who live in New Zealand are Maori, and they make up 53% in excess of that of the people in jail. And at first blush, you look at and see, oh my goodness, that’s even worse than what we’re doing here. It’s, more than half of the people in jail are Maori in New Zealand.

Adam Stirling [00:03:06] wow.

Michael Mulligan [00:03:06] But no, when you look at in relation to the size of the population, we’re about we’re much worse. We’re something like six times, the rate of incarceration in Canada. They’re about a little under three times. Wow. But a different place, similar song, slightly a different outcome. Still a very large percentage of the population. But we are worse inCanada. Another thing which is notable there. And, of course, this has been an ongoing issue in B.C., given the legalization of a small amount of small amounts of hard drugs. In B.C., of course not, of course, but in B.C., one of the drugs which is causing the most, harm, is fentanyl and other, synthetic opioids.

Adam Stirling [00:03:51] Yes.

Michael Mulligan [00:03:52] In New Zealand, interestingly there about where we were 10 or 15 years ago, fentanyl hasn’t got the same grip on New Zealand that it has in Canada and in British Columbia. They are dealing with the drug problem there, but it’s more focussed on crystal meth, which is interesting. We still have that here, but that has been an issue in in Canada and in British Columbia longer than fentanyl was an issue. Fentanyl hasn’t been around forever. You know, I’ve a recollection 10 or 15 years ago doing a case that was one of the first ones involving fentanyl that I dealt with. And at that time, the police expert on, drugs had almost no familiarity with it.

Adam Stirling [00:04:29] hmm.

Michael Mulligan [00:04:29] They didn’t know, like, how much would somebody use or what kind of a problem would that be? Or how many pills might somebody take? It was just new, right?

Adam Stirling [00:04:36] hmm.

Michael Mulligan [00:04:36] So it hasn’t been around forever. And New Zealand is sort of in the drug world, a little bit like where we were, back 10 or 15 years ago. Fentanyl hasn’t really got a grip on the country, but crystal meth is a problem. One of the other very interesting things there. And, you know, of course, we’ve had discussions here about bail and whether we need bail reform and whether that’s at the root of problems here or not. Well, one of the very interesting things in New Zealand and this, for many people, I think, could cause them to think the, you know complete wheels would come off the system. But in most cases in New Zealand there is no Crown Counsel. The police are required to do their own prosecution work in court, other than for the most serious categories of cases, which would be tried in their equivalent of the Supreme Court.

Adam Stirling [00:05:26] Interesting.

Michael Mulligan [00:05:26] And some other very serious cases like murder and kidnapping. There is a Crown Counsel appointed to conduct the prosecution, but in New Zealand’s case, they are not, Crown Counsel are not employed by the government. There’s a firm in each city which would have the contract to do those cases. They interestingly pay the firm a flat amount so that we don’t have some incentive to prosecute everyone in sight.

Adam Stirling [00:05:50] Yes.

Michael Mulligan [00:05:51] You get a flat fee for doing it. But they only get engaged in a small minority of cases. And so if you go into a courtroom, as I did, and watch.

Adam Stirling [00:06:00] Yes.

Michael Mulligan [00:06:00] What you have is a police officer sitting there.

Adam Stirling [00:06:03] Interesting.

Michael Mulligan [00:06:04] And so in judges remand court, there’s literally a police sergeant with his jacket hung over the back of the chair and a bunch of lawyers. Now, that may not be an ideal circumstance. Like, one of the things I watched was this poor sergeant who seemed to be out of his depth, desperately searching around to see if he could find a file and could not find his file.

Adam Stirling [00:06:23] Oh, that’s nightmare feel in court.

Michael Mulligan [00:06:26] Right. But one of the things that’s happened there as a result is you have this interaction between the judge who’s going to manage in that case a bail hearing. You’ve got the police who can’t find that file. And so, the judge was engaged in a much more interactive process with defence counsel about you’ll tell me about the case and what are the strengths and what are the weaknesses. And the judge wound up doing things like in one of these cases, sending her clerk out of the courtroom to go and try to find the person’s criminal record and try to find a pre-sentence report because the police officer just had none of those things, just wasn’t prepared for it.

Adam Stirling [00:06:58] Wow.

Michael Mulligan [00:07:00] And so, you know, I’m not sure that’s something I would, we shouldn’t I don’t think emulate that here. You know what sort of that’s what happens in British Columbia in traffic court, for example.

Adam Stirling [00:07:10] hmm.

Michael Mulligan [00:07:10] So you don’t have Crown counsel showing up to prosecute every speeding ticket? But in New Zealand, that is the case, except in the most serious of, events. And so, like individual officers, constables in their patrol car have to deal with things like getting disclosure to defence counsel and arranging the witnesses to come to court. And then when they show up, it’s just them. And so that’s the state of affairs. On the other hand, in New Zealand, the defence of case is like we have a legal aid system here is terribly underfunded as it is. In New Zealand, those lawyers are employees of the government. And so, there’s a public defender system with lawyers employed for the government, but not for the Crown.

Adam Stirling [00:07:54] Interesting.

Michael Mulligan [00:07:54] The police have to deal with it. The other interesting thing there is that the legal aid system, is, looks much more like what we used to have in British Columbia up to about 25 years ago when the legal aid system was basically decimated, and they closed all of the legal aid offices. There’s legal aid funding for other things, like routinely for family cases, going to court, legal aid might be available, or if somebody was being sued or something was happening, they could get legal aid. But one of the lawyers I spoke to was just in disbelief that we didn’t have anything like that in British Columbia.

Adam Stirling [00:08:27] Yeah.

Michael Mulligan [00:08:27] The flip side of it in New Zealand, which is I think an interesting thought is for many of the things not, it appears, the criminal, but some of those other civil things. The legal aid funding is considered a loan. And so, the legal system, if somebody was impoverished to being sued or needed to sue somebody or was involved in a dispute over children or something, there is a much broader availability of legal aid, but there’s also a reciprocal expectation that it be repaid. And so that’s an interesting, state of affairs, there. Another thing which was notable, I think, in the context of bail, which has been an issue, of course, in British Columbia and other places in Canada, in British Columbia and most places in Canada, we have a group of people who are referred to as bail supervisors. And so, if somebody is on bail, particularly if there’s a concern that they’re going to, like, not show up or take off or something, a person can be required to report to a bail supervisor periodically, and the bail supervisor to keep track or track of them where they are living. What’s their telephone number, what’s your address? And you’ll see them again in two weeks. You know that kind of thing, which in some cases makes sense. That doesn’t exist in New Zealand. And so, in New Zealand they have a heavy reliance on the use of electronic monitoring bracelets, which we have in British Columbia. But they are not routinely used here, except in rare cases like you might recall. That woman who is from China, she was an executive of, I think Huiwei, however you pronounce that.

Adam Stirling [00:09:55] Yeah.

Michael Mulligan [00:09:55] There was concern that she might take off and she was fitted with an electronic monitoring bracelet, but that’s not the norm here. And so, the approach in New Zealand is to focus on things like where will the person be, you know, have a corrections person go out with like an antenna to figure out, like, what’s the strength of the cell.

Adam Stirling [00:10:11] No, really.

Michael Mulligan [00:10:13] At The house you might be living at. And they are very focussed head where the person will be and will be electronic monitoring bracelet work.

Adam Stirling [00:10:19] Wow.

Michael Mulligan [00:10:20] Because then they don’t have a person monitoring it. Amusingly, you say that they’re watching one of these bail hearings being conducted after the judge managed to send her clerk out to find the file and find a criminal record because this police sergent had had no information at all. It came back to the person had failed to show up ten previous times. And on the last occasion he was released, he cut off his electronic monitoring bracelet and took off.

Adam Stirling [00:10:43] Wow.

Michael Mulligan [00:10:44] He did not, by the way, get released. But another thing which is interesting is the way their bail system works, their bail hearings work. Unlike here, where there would be a bail hearing.

Adam Stirling [00:10:54] yes.

Michael Mulligan [00:10:54] And a judge or a judicial justice determines are you out or in or? And if you are out in what conditions? Because of that, focus on electronic monitoring bracelets there. They run a what they would refer to as make a basic bail hearing to determine do you get out without a bracelet. And then if that fails, you can try again with the bracelet idea.

Adam Stirling [00:11:14] Wow.

Michael Mulligan [00:11:14] which I guess is sort of there so that there would be another hearing. And that’s when you get somebody out there figuring out the cell signal strength and figuring out who else lives in the house and so on where you’re going to be. And the focus is much more on like, is that an appropriate place you’re going to be, we are very concerned about the address and who else is there and who’s around. Does the cell phone bracelet work? And so, I thought that was just another very interesting insight in terms of what’s going on there. And so, it’s just a really interesting insight into a system which at its core, we have all kinds of commonalities. But, when you get down to some of those things that evolve over time, there are significant differences, some of which if you propose them to somebody here, if you said, for example, here, there’s going to be no more Crown Counsel showing up on virtually any criminal cases over to the police.

Adam Stirling [00:12:05] Yeah.

Michael Mulligan [00:12:05] I think most people would think the wheels are going to come off, hair is going to fire, and nothing could possibly operate. And, you know, the example of the office here. Couldn’t find this file wasn’t exactly confidence inspiring. And I’m not suggesting for a moment that would be a good model here. But they have a system similar to ours? And it basically functions, and that’s how it operates in BC by the way, by way of background, we only had a provincial Crown Counsel system set up in 1973.

Adam Stirling [00:12:35] hmm.

Michael Mulligan [00:12:35] Prior to that, that did not exist here either. And so, what happened prior to that is each municipality would be responsible for the criminal prosecutions in that municipality. And so, you would have a municipal solicitor who would be doing the prosecution work. And then we set up in British Columbia in 1973, it was the NDP government back in the day then, they set up the provincial system and now Crown Counsel are employed by the provincial government in the Ministry of the Attorney General. So now they’re all government employees as opposed to municipal employees or in some cases, no one. Although even here we do have an example of for federal cases like those are cases like prosecution for drugs, income tax, undersized crabs, that kind of thing.

Adam Stirling [00:13:21] hm mmm.

Michael Mulligan [00:13:21] Those prosecutions are carried out by Federal Crown, different lawyers. And in large centres like in Vancouver, there is a Department of Justice where they work for the federal government, their government employees. But in other places, like in Victoria, and up and down the island and elsewhere in the province. They are private firms who have that contract, who do those that prosecution work. So, it’s not unheard of here where you wouldn’t have government employees doing prosecution work. But since the 70s, we have had that in B.C. And so, it’s just really interesting seeing other jurisdictions where thats completely different. And so that’s New Zealand versus British Columbia, and that’s what all, good criminal lawyers are doing on their, spring break.

Adam Stirling [00:14:03] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. We’ll return right after this break.

[00:14:08] COMMERCIAL.

Adam Stirling [00:14:08] Legally Speaking on CFAX 1070 during the second half of our second hour on a Thursday. Michael Mulligan was in New Zealand last week, but he has been regaling us with what he learned while on vacation while he was conversing with counsel who happened to be on duty that day in an Australian court or excuse me, New Zealand court. Very different. My apologies. It’s well, I was just going to say I should know someone who is from New Zealand and Australia. To say that or to suggest that there is little distinction between the two, is to spark a fight quickly, let me assure you. So, I apologize. What else? It’s on the agenda today.

Michael Mulligan [00:14:43] So I was going to say on that front, I think New Zealand is to Australia is Canada is to the US indeed. But, you know, there’s a distinction. And so the next, next on the agenda is a, case that caused me to have a look at, an act that I think people should be aware of the Patient’s Property Act, that, you know, and, what it does and how that could have an impact on a lot of people at some in their life. The Patient’s Property Act is more than simply dealing with what the title might suggest. It’s not just, you know what happens with your shoes when you’re in the hospital. You know, it’s a, it’s an act that’s intended to allow for people to be appointed to manage the affairs or finances of somebody, who is dealing with a disability that prevents them from doing that themselves. And so, it’s much more than patients in a hospital, although certainly some of the people might in fact be in a hospital. And so, the act provides that an application can be made, it can be made by a relative, the attorney general, or indeed anyone to a Supreme Court judge in British Columbia. And if the judge is satisfied that the person has a mental infirmity arising from a disease, age or otherwise, or and this is addressing a disorder or disability of the mind arising from the use of drugs. Interesting. And so that could have some application in, you know, given the tragic number of people that are addicted to drugs in British Columbia, it’s also applicable to that.

Adam Stirling [00:16:12] Yes.

Michael Mulligan [00:16:14] And so if the judge is satisfied that the person is suffering from, one of those sorts of disabilities, the judge can appoint somebody to manage the person’s, financial affairs, or manage indeed the personal like medical decisions, other things like that. And the, the act does even contemplate the idea that somebody could in advance like, let’s say somebody had a, degenerative disease and they wanted to, have a particular person fulfil that, the role for them. There is provision for a person to make a, to nominate in writing somebody else to act in that capacity for them, and for them to sign it. It’s the same requirements as, like doing a will. They could set out, you know, who the person would be. They have to be at the time of sound mind to do that and, you know, appropriate age to do it and not too young. But there is that provision as well. So, somebody said, look, I know I’ve got a degenerative condition. I’m going to need help with these things. They could nominate somebody in advance. But the particular, recent decision of the Court of Appeal dealing with the Patient’s Property Act, was a decision where there was a two sisters who both wanted to act in that capacity for their brother. And so, it was a case where the trial judge and then the Court of Appeal had to assess who, as between these two sisters, should have that responsibility. And it’s a case involving a man who was, who’s 65 years of age. He’s, he has Down’s syndrome.

Adam Stirling [00:17:58] mm hmm.

Michael Mulligan [00:17:58] And he’s lived for some 30 years in a community group. So, he needs everyone in agreement that he needs help managing his affairs. And he was somebody of very modest means. There wasn’t a lot of money involved. You apparently had $29,000 in a bank account and $729 a month, plus his room and board paid for it. Right. And we do have in British Columbia, the, an entity called the Public Guardian and Trustee and the Public Guardian and Trustee in cases where there’s no one to fulfil that kind of a role, can step in and act in that, you know, capacity to manage somebody’s financial affairs for them.

Adam Stirling [00:18:36] Yeah.

Michael Mulligan [00:18:37] You know, this case, this man had to have his, you know, clothing, travel, dental expenses, medical expenses, everything paid.

Adam Stirling [00:18:43] Yes.

Michael Mulligan [00:18:44] But here the public guardian and trustee didn’t want to be the one appointed because when they were appointed there, they have to charge fees for their work or doesn’t have, it is what they do right, there is the schedule of fees they charge. And their concern was look at, you know, he’s got a modest income. We don’t want to take a portion of that to manage his affairs. And here we’ve got two sisters who both wish to take on that role. And so, the judge in this case had to sort out who is between these two people is most suitable to do that. And the conflict was one of the sisters who looks like at one point was a lawyer in British Columbia, lived him, lived near where this man lived, and would see him routinely. The other sister was an 80-year-old nun who lives in Ontario. And but you might say, okay, well, what’s the problem there. The the challenge is that for the sister who lives near the man, she herself suffered a, what was described by the court as a debilitating brain injury in 2008. And has other medical conditions. She has had various setbacks in her life, and so, the court had to struggle with so who is the appropriate person to pick as between the person who herself has some challenges but lives nearby and somebody else who’s obviously another loving sister, but who lives in on. And the sister who lives in Ontario does have communication with the man twice a week. They with him video calls together. And she’s been out five times to visit him, but nonetheless, she lives in Ontario. The other sister who lives nearby and had the, the unfortunate brain injury. She had some challenges. There was a number of years where she’s cut off all contact with her family. She was struggling with all of her own issues. But by 2021, her life have stabilized, and she wanted to resume her relationship with her brother. And so the decision of the court also sheds light on what the role is of somebody who’s appointed in that, in that capacity.

Adam Stirling [00:20:48] Yes.

Michael Mulligan [00:20:48] And the the main thing to remember is that when somebody is appointed to act, to manage somebody’s affairs like that, they would have a fiduciary duty to the person. What that really means is they have to make decisions which are in the person’s best interests, not their own interest.

Adam Stirling [00:21:04] Yes.

Michael Mulligan [00:21:05] And on that ground that that’s what the court focussed on and found that the nun living in Ontario clearly had nothing but her brother’s best interests at heart. There’s nothing else going on there. But on the other hand, the sister who lived close by, even though she could physically go and see him, had, for example, wound up in conflict with the staff at the home this fellow was living in.

Adam Stirling [00:21:28] hmm.

Michael Mulligan [00:21:28] Causing them to threaten to evict him. But she wouldn’t stop her behaviour with the staff. I think there was dislocation over Covid and whether she should be allowed to visit him and whether he should just be by video, but she was causing potential problems trying to, or her brother in terms of potentially losing his home by maintaining her position as the one that she was advocating for. And so that was really the focus of the court. It found that the sisters who lived in Ontario, even though she was further away and whatever the impact, was clearly making decisions which were genuinely intended only for the best interests of the brother, and not her own interest in terms of what her thoughts were about just being able to go there, visit him or other matters. And so that’s why the court ultimately picked the sister in Ontario to act in that capacity. Another interesting element of the case is that the sister living here apparently is a frequent litigant. And applied to the Court of Appeal to have two of the judges excused themselves on the basis that they had made decisions involving her recently.

Adam Stirling [00:22:34] Interesting.

Michael Mulligan [00:22:35] And so the Court of Appeal judges had to wrestle with that. And they concluded that, no, they were able to continue and deal with this case, pointing out that the woman who lived here, the sister lived here, had appeared in front of eight judges of the Court of Appeal in the last 16 months, disqualifying themselves with disqualify half the court and pointing out that the test is that, you know, judges are presumed to be impartial and the test for a limited were having a judge remove themselves is whether a reasonable person, fully informed, would think it more likely than not that a judge couldn’t fairly decide a case and determined that just because they decided something else about this woman involved with it, that didn’t mean that they would be disqualified. So, they did decide the case, and they upheld the decision that the nun should take care of her brother’s affairs. So that’s the Patient’s Property Act.

Adam Stirling [00:23:24] Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday. It’s Legally Speaking. Thank you. Michael. Pleasure as always.

Michael Mulligan [00:23:31] Thank you so much. I always enjoy being here.

Adam Stirling [00:23:33] All right. Quick break. We’re back after the news.

Automatically Transcribed on April 5, 2024 – MULLIGAN DEFENCE LAWYERS