The Presumption of Destruction, Small Airline Seats, and Character Evidence

 

Unlock the secrets of safeguarding your last wishes with a captivating narrative from Quadra Island, where an elderly lady’s lost will sets off a legal firestorm over the presumption of destruction. As I narrate this tale of vanished legacies, you’ll discover the critical importance of not only crafting a meticulous will but also ensuring its safekeeping. This episode plunges into the murky waters of estate law, unravelling a mystery that serves as a stark reminder: the absence of a will can unleash Pandora’s box of legal quandaries.

Our discussion takes to the skies with the ongoing saga of airlines wrestling with the responsibility of accommodating passengers with disabilities without burdening them with extra fees. WestJet’s legal turbulence illustrates a broader challenge for the airline industry: who should pay when a passenger is too large to fit in an economy seat or if they require an assistant to fly with them?  And with Michael  Mulligan of Mulligan Defence Lawyers providing expert insights, we’re armed with the knowledge to navigate these legal crosswinds with finesse.

Finally, we scrutinize the often misunderstood role of character evidence in criminal trials and its potential to make or break a case. Through a real-world example, we dissect how a courtroom misinterpretation led to an unjust conviction, drawing attention to the appellate court’s role in correcting such mistakes. This episode not only sheds light on the intricacies of trial and appellate processes, but it also underscores the importance of getting it right the first time—because justice should be more than just an assumption. Join us for a journey through the landscape of law, where every detail holds the power to tip the scales.

 

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 Feb 15 2024

Adam Stirling [00:00:00] Time for our regular segment, Legally Speaking, with Michael Mulligan, Barrister and Solicitor with Mulligan, Defence Lawyers. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:08] Hey. Good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:10] Some interesting things on the agenda today. We’ve had a lot of discussions in the past about wills and estates. Another interesting example off the top.

[00:00:18] Indeed. This one’s got a good name as well. It involves the, the presumption of destruction. There’s a good legal concept for you, and the presumption of destruction actually comes from a Casee dating back all the way back to 1836. And it’s still good law in British Columbia. And here’s how it was reasonably applied. The very interesting fact pattern. The case involves a lady who is 81 years of age. She lived alone. She had a home on Quadra Island. She did not have any children. She did not have any surviving siblings. And she’d been divorced in the 1980s. Okay, that’s a fact pattern.

Adam Stirling [00:00:59] Okay.

Michael T. Mulligan [00:01:01] And, sadly, she passed away. And the issue became. What about her estate? And the reason that was an interesting and controversial issue, is that family members were aware that she had nieces and nephews, and they were aware that she had created a will, all the way back in 2001. And in that will, she left all of her estate to one of her nieces. And so naturally, that created an issue about, okay, where’s the will and what does it say and what should be done. And, when she passed away, some of the extended family members went to her home, on Quadra Island, to look to see if they could find the will. One of the sad notes in here, it’s not really, detailed in this case was that they found that, her dog and two cats had been left alone in the house since she was hospitalised several weeks earlier, so hopefully somebody was taking care of them.

Adam Stirling [00:02:06] Yeah.

Michael T. Mulligan [00:02:07] So the family members, they looked around the house, they looked to see if they could find a will, and they couldn’t find any, couldn’t find any will. They did find other things. They found bills and insurance forms. They found a pre-paid funeral service arrangement, which was interesting. They went through a filing cabinet, but they couldn’t find a will. So, the next step. And people should know about this, too. We have in British Columbia a Wills registry. And the Wills registry allows either a lawy15-year-oldsry that prepares a will or indeed, and this is quite interesting, anyone who’s, both or either 16 years of age and with mental capacity or any age, and in the Canadian Forces on active duty, that’s troublesome if we have 15 year olds or younger in active duty on, for the Canadian Forces, but that’s provided for.

Adam Stirling [00:02:57] Yeah.

Michael T. Mulligan [00:02:59] And so the, Wills registry would allow, anyone in either of those categories to, file notice of the fact that there is a will they don’t actually, like hold the will, but they would have information like the date of birth when the will was entered into and where the will is. Right, which is, that’s pretty important. Right. So might often be like, hey, it’s my lawyer’s office, or it’s in my filing cabinet or wherever it might be. And indeed, when they looked in the Wills registry, there was a notice filed about the will being kept in a Royal Bank safety deposit box up in Campbell River, at Shoppers Row. And so, they went to look. That safety deposit box didn’t exist. Interesting turn of events.

[00:03:43] So it just…

Michael T. Mulligan [00:03:43] They were able to

Adam Stirling [00:03:44] Never existed or it didn’t exist. I’m curious.

Michael T. Mulligan [00:03:47] Just didn’t exist.

Adam Stirling [00:03:48] Okay.

Michael T. Mulligan [00:03:49] That’s interesting. I’ve actually had a sort of an experience dealing with one of these things where a safety deposit box was moved.

Adam Stirling [00:03:57] Yeah.

Michael T. Mulligan [00:03:58] From one bank to another when a bank branch moves. But in any case, here, the evidence was it didn’t exist. So, they didn’t, but they were able to track down the notary who had prepared the will. And indeed, the notary had a copy of the will. He kept it an unsigned copy, but a copy, nonetheless.

Adam Stirling [00:04:16] Interesting.

Michael T. Mulligan [00:04:16] So here’s where that here’s where that ties in with the presumption of destruction. The notary was able to say, I gave the original signed will, which left everything to the one niece, to the person who made it, the woman who made the will. She walked out with it. That’s important. Okay.

Adam Stirling [00:04:35] Okay.

Michael T. Mulligan [00:04:35] Further efforts are made to look for the will. They couldn’t find it. A bunch of the family members went back to Quadra Island. Interestingly, they started going through books and magazines. And this was not a piece of evidence. Then, somebody concluded that they needed to burn some of the books and magazines because there wasn’t garbage or recycling on the island. That was sort of a perhaps suspicious state of affairs. But the evidence was that they looked. Through the things like shake on them or flip through them before burning them. So, it was possible that the will was shoved into a book or magazine. They got inadvertently burned, and indeed, one book in the house did have some legal documents in it, so there was a spectre of that.

Adam Stirling [00:05:17] hmm.

Michael T. Mulligan [00:05:18] But here’s what that dark here’s what that presumption of destruction really means. If you have a circumstance where there is evidence that the person who made the will had the will, that’s important. Like they physically had possession of it and then it can’t be located. You can draw the the presumption would say that they would presume the person destroyed the will so that it wouldn’t be affective. Right.

Adam Stirling [00:05:47] hmm.

Michael T. Mulligan [00:05:47] And that’s an interesting thing. You just sort of think about that. Well, I guess the, the as the judge pointed out, that principle, which means all the way back to 1836 with that presumption, it ties in with and this was one of the beautiful things about the law, is that it generally sort of accords with common sense. And here that presumption is premised on, as the judge pointed out, the commonsense presumption that if somebody has a will, they generally want it to be effective, like they want their wishes to be carried out.

Adam Stirling [00:06:19] hmm.

Michael T. Mulligan [00:06:20] So you generally, if you have a will, don’t make a will, and then go and hide it somewhere because that’s not going to be very effective. Right. If people can’t find the thing, they can’t do what you want.

Adam Stirling [00:06:32] My secret will. Yeah.

Michael T. Mulligan [00:06:34] Yeah, I see really made the will of a Squirrelled it away in the back of a Reader’s Digest for 1987 and hidden it amongst many others. Right. That’s not going to work too well. And so, there is this doctrine that if there’s evidence the person had the thing and that’s important to you if they didn’t have it, that doesn’t really make sense. Right. Like if the evidence was from the notary, say, for example. Well, I had that, and she asked me to keep it in my filing cabinet in the law firm. But unfortunately, I had a fire, and it was destroyed, for example. Right then it wouldn’t make sense to conclude that the person presumably wanted to destroy it. That is just some intervening fire occurred. And that’s where that went, in which case a judge could enforce that unsigned copy. Right. If the only indication was that that’s what the person’s wishes were, right. There are provisions to allow that.

Adam Stirling [00:07:30] hmm.

Michael T. Mulligan [00:07:30] But because she had it and that was clear, they couldn’t find it. And then the judge looked at other things, like, for example, the judge can look at things like has the person said things over that time period about their wishes. Like if somebody said, literally, I ripped that thing up, I realised they made a huge mistake. Obviously, that’s going to be pretty compelling evidence, right?

Adam Stirling [00:07:50] Yeah.

Michael T. Mulligan [00:07:50] Or if somebody said, no, I’ve changed my mind or something happened, but there was nothing like that. Unfortunately, this lady who passed away didn’t have much interaction with her extended family. And then there’s another interesting thing which can be considered by a judge, which would be that if the terms of a will are described as unreasonable, then there could be there might be a suggestion. Look, let’s say somebody I don’t know, did some crazy thing. I’m leaving all of my money to somebody or other. It made no particular sense, you might say. Well, hold on, maybe this would be a suggestion that the person could have sort of calmed down and thought better about it and changed their mind. But that really wasn’t clear here. It wasn’t clear why she would have left it all to the one niece and not the other extended family members. They didn’t seem to have any particular special connection other than this was an interesting point. The lady who passed away her registered retirement income fund. She did name that niece as the only beneficiary of that. It didn’t change that. So that was one of the things that they point out saying, well, hey, maybe this is a suggestion that that’s indeed what she still wanted, because if she really changed her mind about giving everything to the niece and destroyed the will, wouldn’t she change that to, not a bad argument. But they said, well, no, but that’s not necessarily so. A person can say, well, yes, I still want this to go to this person, but I’ve changed my mind about everything else. And so, I ripped that thing up. And so, at the end of the day, given that there were no statements, nothing really to, you know, determined that the person had changed their mind or maintained the same position or that the relationship change, there’s just nothing other than we know she made the will. She was the last one with the will. According to the only evidence they had was from the notary that prepared it, gave it to her, and it was gone. Nobody could locate it. And there wasn’t any evidence to the contrary that it burned down, or that it was in the pile of magazines or anything else. The result of that is that that doctrine or that presumption of destruction carried the day. And the judge pointed out, you know, it’s on the stand. It’s on a balance of porbablilites like any other civil case and the burden would be on, the person who’s trying to overcome, that presumption of destruction to lead some evidence, which would satisfy the judge on a balance of probabilities that the, testator hadn’t, decided to destroy the will if they no longer wanted it to have effect. And, you know, that just reflects the fact that generally, if you have a will, you’re going to probably put it somewhere where it’s going to be found rather than hiding it away. And that’s where that comes from. And that’s the presumption of destruction. And the net result here is that all of the extended relatives will wind up sharing in the proceeds, or sharing in the, the assets, in accordance with what happens when somebody dies, without a will, which is also set out, in terms of how those are to be divided up. So, the one niece, doesn’t get it all.

Adam Stirling [00:10:53] Michael Mulligan with Legally Speaking. We’ll take a quick break. We’re back right after this.

[00:10:57] COMMERCIAL.

Adam Stirling [00:10:57] All right. Back on the air with Legally Speaking here at CFAX 1070 with Michael Mulligan, Mulligan Defence Lawyers. After that latest matter involving estates, I see the term WestJet here. What’s going on?

Michael T. Mulligan [00:11:09] I must say, indeed. Everyone’s favourite punching bag. Airlines. So.

Adam Stirling [00:11:15] There’s so loved. All of them.

Michael T. Mulligan [00:11:16] They are beloved. Arent They? The the next, so next case involves a proposed class action against both Air Canada and WestJet and WestJet’s attempt to stop, the, claim against them, arguing that it has no chance of success. And as we’ve talked about before, much of the fighting over class actions occurs before the thing actually becomes a class action. Trying to stop the thing from being certified as a class action, arguing that the whole thing is doomed, try to get it, struck out. And so, this was an application by WestJet arguing that all of this was doomed and had no hope of success. And so, it ought to be stopped right now. Air Canada, for its part, didn’t bother joining in that application. They were kind of along for the ride. And so, here’s the claim, which is the interesting part of it. So, the, this is a BC case. The, plaintiffs are individuals with varying forms of disabilities, including, according to the judge, severe cases of obesity such that they cannot lower the armrest of an economy aircraft seat, those who require a care aid or not on self-reliance, so they need somebody else on the plane to help them, or people who, require a service animal that’s so large that it can’t sit at their feet. And the issue is, can they be charged extra for the second seat, basically. The  argument in the class action is that, people shouldn’t have to have who have those disability, shouldn’t have to pay for the second seat if they can’t get the armrest down, or they, shouldn’t have to pay for a second seat for the person who’s there to accompanying them, or for the second seat to have the floor space for the service animal. And the landscape in that regard is complicated in Canada because you’ve got, first of all, some federal jurisdiction over those things. Airlines.

Adam Stirling [00:13:10] Yeah.

Michael T. Mulligan [00:13:12] And there’s been a previous decision in terms of disability rights federally, but back in 2008 resulted in changes to how WestJet handled domestic requests for those things such that it, the human rights decision concluded that it was, unreasonable to, not to for the airline not to provide the second seat of somebody couldn’t get the armrest down, or for the care aid or for the dog space and so on. Domestic flights, they’re not apparently charging for those things. And the issue then becomes what about international flights? And I guess that was viewed differently from the human rights assessment because of the cost that would, attach to that, for the airline having to, provide a free seat for the, attendant to help the person or for the dog or for the second seat, if that person couldn’t physically fit in one seat. And so that’s the basis upon which there’s this, the claim being made, and it’s a, I must say that the concern from the airline, I mean, on one hand, the description of when according to the term somebody might, for example, have require indeed would be things like if a person has impairments to both their hearing and vision such that they would be unable to communicate, with airline staff, or mobility impairment such that they would be unable to get on their oxygen mask.I must say that particular one has a bit more resonance with the, door plug of that Boeing falling out not that long ago. And so, we, you know, at the end of the day, there’s going to be an issue here about the balancing of those, rights, and responsibilities. Who should bear that cost?

Adam Stirling [00:15:03] Yeah.

Michael T. Mulligan [00:15:04] Right. And is it a legal requirement that somebody with a disability be afforded the second seat, for free, or whether they should be required to pay for it? And it raises a number of interesting issues, including constitutional issues. Who’s got responsibility for it? And I suppose at the end of the day, policy issues about, you know, exactly those questions. Whose responsibility is it to pay for those things? Is it the airline? Does everyone have to be treated the same? Or if you require more space, for whatever reason it might be? Does that mean you should pay for the additional space? At the end of the day, the WestJet claim that this was all doomed, despite various creative arguments, including, retort, resorting to constitutional arguments about things like paramountcy and inter jurisdictional immunity and various other things, the, judge concluded that all those are interesting points. It all will be litigated and sort of at the end of the day. But it wasn’t plain and obvious that this claim against WestJet was going to fail. And so, the result of that is that WestJet was unsuccessful in getting that, the claim struck out at this stage in the case will now move on, to the next stage of seeking certification as a class action. And so, we will need to wait and see what the eventual outcome is in terms of who’s gotto pay for the extra seat on both WestJet and on Air Canada.

Adam Stirling [00:16:31] And our final matter, what is character evidence and why might it be important or allowed or rather disallowed?

Michael T. Mulligan [00:16:39] Yeah, that’s really interesting. And this comes out of the case that some people may have heard of recently is based out of Campbell River.

Adam Stirling [00:16:46] hmm.

Michael T. Mulligan [00:16:46] It was a case that dated back to when Covid was a new and more pressing matter. And the incident and a Save-On-Foods up in Campbell River. And the accused in that case was convicted, on the basis of coughing, intentionally coughing in the direction of some employees.

Adam Stirling [00:17:10] hmm.

Michael T. Mulligan [00:17:10] At Save on Foods, there’s also an incident with whether she had intentionally pushed a shopping cart into one of them when they were dealing with her, that was the underlying issue. And here’s how the character evidence came up. The accused in that case, she started without a lawyer. She had a lawyer helping her for a little bit, but then, for reasons unknown, decided to fire her lawyer and try to carry on the case on her own. Not generally a good idea. That’s what she did. She then advised the trial judge that she intended to call character evidence when it was her opportunity. Crown counsel stood up and said that character evidence would be irrelevant, and the judge ruled that character evidence could be helpful in sentencing, but character evidence was not admissible in the trial, trial part of the case. Whether by on behalf of the Crown or the accused. Now, the result of that, the woman didn’t call any evidence, and she was convicted. The trouble with that is, as a matter of law, both Crown counsel and the judge were just 100% wrong.

Adam Stirling [00:18:13] hmm.

Michael T. Mulligan [00:18:13] There is no othere way to put it. Indeed, character evidence can be relevant on sentence like if somebody is convicted, all kinds of things could be relevant for a judge to determine what sentence should be imposed? Does the person have some terribly long record of dastardly conduct? Maybe a greater sentence. Does the person have never had any trouble in their life before, and they’re 65 years old? And okay, well, that would result in probably a different outcome, right? So clearly relevant there. But it’s also relevant in the trial. And now when the way it works is this during a criminal case, Crown counsel cannot lead evidence of bad character on their own to try to suggest to the judge that this is just some dastardly character and more likely to be guilty.

Adam Stirling [00:18:59] hmmOkay, that’s not allowed, right? We don’t want to just kind of round up the usual suspects and convict people on the basis that they’re a dastardly person. Criminal cases are about the allegation, not are you a bad person or a good person? Right. But an accused person can choose to lead evidence of good character in their case at the trial to suggest that either it’s less likely they committed the offence, or that they are more worthy of belief. And the history of that goes back a very long time. We used to have trials where a very, very long time ago, the jury was comprised of people who, like from the community who, like, know the person, right. And know about all the circumstances. They could sort of well, you know, that’s Bob is he’s likely to have done that. Well, he’s, you know, always flying off the handle, probably just the kind of thing Bob would have done. We got past that. But character evidence, properly led, is evidence of the person’s reputation in the community.

Adam Stirling [00:19:58] hmm.

Michael T. Mulligan [00:19:59] And so the way that would work is that if the defence wanted to lead character evidence, you wouldn’t just be calling somebody who’s a witness to say, I think Mary is a great person and never would have done anything like this. That’s just your opinion, right? But the way it would be done is that the potential witness would be expected to go and talk to other people in the community who are familiar with the accused person to find out their reputation. For example, does this person have a reputation for violence? Is this the sort of person who’s likely to have pushed a shopping cart intentionally into a Save On Foods employee? Is this the sort of person who is likely to have tried to call for somebody intentionally to spread Covid?

Adam Stirling [00:20:36] yeah.

Michael T. Mulligan [00:20:37] And that character witness, after they’ve gathered information about the person’s reputation in the community, is absolutely entitled to come and give evidence in the case for the accused to tell the judge or jury about exactly that. They’d be able to show up and say, this was Mary. I’ve spoken to ten people who know her in the community. They all agree she is somebody who is not violent. They’ve never seen her get into a circumstance where she’s responded by using violence in a difficult circumstance. It’s unlikely, according to her reputation, that she would have done such a thing. And moreover, she has a reputation for honesty. So, if she testifies that she didn’t do it, you ought to believe her. I’ve spoken to all sorts of people who are familiar with her for 40 years. They all say they’ve never heard her lie about anything. She’s a very honest person. That evidence is absolutely admissible. And so, it would appear that both Crown who is not the Crown on the appeal, but Crown on the original trial, and the judge just didn’t know that that is the law. And so when the judge told her, you can’t do that, it’s irrelevant. After the Crown said exactly the same thing, it was just dead wrong. And so, when the case got to the appeal, which is the decision that just came out this month, just a few days ago, the Crown on the appeal, different Crown from the one at trial acknowledged exactly that, judge and Crown were totally mistaken. And in fairness to the woman, she didn’t have a lawyer at that point to tell her that’s just wrong. Go get the case law. Show it to the judge. Right. She didn’t know. And so, the Crown counsel tried to invoke what’s called a curative provision, proviso on an appeal. The idea there is that it’s 686.1 (b) (3) of the Criminal Code. And the argument the Crown made on the appeal is that this was just a harmless error. It didn’t make any difference. The judge of the appeal did not agree, because there are two kinds of harmless mistakes that might not impact the fairness of a conviction. The first category would be if a mistake was really minor. Didn’t really matter. That wasn’t the case here. This is pretty significant. The second argument, or the second kind of mistake that might not result in an appeal being allowed is if the error made no difference, even the big error. Like if the case was overwhelming against the person, it wouldn’t make a difference.

Adam Stirling [00:22:58] yep.

Michael T. Mulligan [00:22:58] So the judge again found that’s not the case here. And so, the curative proviso did not apply. It was a major mistake. It could have an impact on the trial. And then the final decision for the judge on the appeal is do you order a new trial, or do you acquit the person? Because they avoid a choice. Usually when there’s a big mistake, it would be go over to trial to try again. But there is discretion where, for example, a person has served all of their sentence or a significant part of their sentence. For the judge to say that just wouldn’t be fair. We’re not going to have to do this over again. The trial was wrong. The person served their sentence. There’s no, why would we do this again? And here the judge found the person had served all of her sentence. She’d only served, I think, a third of her probation order. But the judge said, look at all these circumstances. Given that she served that much of her probation and given the serious mistake that was made at the trial, it wouldn’t be fair to order another one. And so, the judge acquitted her. And that’s the significance of character evidence and how it’s still completely admissible, in a, in a trial today.

Adam Stirling [00:23:58] Michael Mulligan with Mulligan Defence lawyers, Legally Speaking, that’s all the time we have for now. Pleasure as always. Until next week.

Michael T. Mulligan [00:24:04] Thanks so much. Always enjoy it.

Adam Stirling [00:24:06] All right, quick break. News is next.

Automatically Transcribed on February 16, 2024 – MULLIGAN DEFENCE LAWYERS