The legal world is a maze of complexities that can be difficult to navigate, but with the expert guidance of seasoned barrister and Solicitor Michael Mulligan, we aim to provide clarity on some intricate aspects. In our latest podcast episode, we delved into three main topics: collateral consequences of committing an offence, the intricacies of third-party records in criminal cases, and the challenging terrain of prison disciplinary procedures.
When discussing collateral consequences, Mulligan highlighted how the aftermath of committing an offence goes beyond the sentence handed down by the court. This concept takes into account factors like the loss of a job, home, or, in the case discussed in the episode, physical injury suffered while in custody. These considerations can play a crucial role in sentence appeals, potentially influencing the judge’s final decision.
Another legal complexity we tackled was the issue of third-party records. Mulligan elucidated how an accused person is entitled to all evidence that the police have collected, ensuring a fair trial. However, ambiguity arises when the police do not possess certain evidence. The episode discussed an intriguing case involving a prison assault video, raising questions about the right of access to third-party evidence and the privacy concerns related to it.
Perhaps one of the most controversial topics we discussed was the prison disciplinary process. Mulligan illuminated the current system where a standard of “probably” is adopted when punishing inmates. This practice could potentially conflict with the constitutional right to be presumed innocent until proven guilty. The fairness of this system is particularly questionable for inmates awaiting trial who are presumed innocent.
Moreover, Mulligan painted a vivid picture of the realities of prison life, highlighting how this environment influences legal proceedings. It’s worth noting that the prison environment is not only challenging for inmates but also for the staff. Prisons are dangerous places, often understaffed and unable to prevent assaults or maintain safety.
The podcast episode sparked a stimulating debate on these issues, raising important questions about the fairness and constitutionality of certain practices within the justice system. Despite the legal complexities discussed, the conversation underlined the need for transparency, fairness, and the respect of constitutional rights in every aspect of the legal process.
The legal test for an interim injunction in a defamation case and how it is different from other types of cases as a result of the competing values of free speech and preventing unfair damage to reputation.
Transcript of the show:
Legally Speaking Nov 2 2023
Adam Stirling [00:00:00] It’s time for our regular segment with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking right now on CFAX. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:09] Good morning and do great. Always good to be here.
Adam Stirling [00:00:11] Some really interesting topics on the agenda. I’m looking here video of an assault in jail in terms of evidence on a sentence appeal. How does it all fit together?
Michael T. Mulligan [00:00:22] Yeah, there are several, I think, interesting issues all bound up in that what you’ve just described and this is a decision, it’s a decision of the B.C. Court of Appeal, and it deals with a sentence appeal from a man who was sentenced to nine years in prison following a conviction for various serious things, including aggravated assault and kidnapping and forcible confinement. And so, he received a sentence of nine years that he’s appealing. And the sentence appeal is scheduled to be heard next month in December. And the particular decision that just came out dealt with an application for a copy of a video of the man being beaten in prison by some other inmates and apparently losing sight in one eye as a result of that assault that he suffered.
Adam Stirling [00:01:17] Wow.
Michael T. Mulligan [00:01:18] And the issues there are several issues, I think people would be interested to know about; first of all, there is a concept that can be taken into account on sentencing that is broadly referred to as the collateral consequences of somebody committing an offence. Right. And the idea there would be, for example, let’s say somebody commits an offence and they get beaten, lose, become blind, or at least blind in one eye in custody. That would be a consideration for a judge when determining what the appropriate sentence would be. Right. Other sort of common collateral consequences might include things like, you know, a person could be fired from their job as a result of being charged or lose their home. Things like that would all, as one would hope and expect, would at least be thought about by a judge when deciding what the appropriate sentence was for somebody. And so that’s why the the attack in prison could be relevant on the sentence appeal. Right? Because there could be a collateral consequence that is happened to the person.
Adam Stirling [00:02:30] Fascinating.
Michael T. Mulligan [00:02:31] The next concept, which is an important one or interesting one, is the idea of what’s referred to as a third-party record. And the way that works is that in a criminal case, an accused person is entitled to what’s referred to as disclosure material, which is to say, the crown, when they’re prosecuting somebody, is required to give to the person or their lawyer a copy of all of the evidence that the police have collected. Right. Which sort of makes sense from a fairness perspective. It actually wasn’t always that way. That only became a legal requirement as a result of the charter.
Adam Stirling [00:03:11] hmm.
Michael T. Mulligan [00:03:11] But there is an obligation now that the crown provides all of the evidence, evidence both that might show the person’s guilty, but also evidence to make sure the persons not guilty. Interestingly, that used to be sort of variable how that would occur, but now that’s a clear requirement. But that requirement only applies to evidence that the police or crown counsel have. Right. It doesn’t oblige the police to go out and collect other evidence. Right. Even though it might exist. Like, let’s say there was an assault and a video of taping, video recording of it. The police aren’t obliged to go get the video recording. They might just say, sorry, we’re too busy, We’re not.
Adam Stirling [00:03:54] hmm.
Michael T. Mulligan [00:03:55] And then the accused person wouldn’t have any right to it because the police don’t have it. Right. You only have a right to what they actually have.
Adam Stirling [00:04:02] Interesting.
Michael T. Mulligan [00:04:03] And sometimes there can be some ambiguity like, well, hold on, you know, in this case, what was being asked for was a video recording. It was like a three or four minute from various different angles of the man being beaten in prison. No correctional staff witnessed the beating, but they had described it based on the video recording. So, they knew that there was video recordings of it. But the man and his lawyer didn’t have the video recordings. And the reason that can be sort of a grey zone, right, is it’s a matter of, well, does the crown have that? Is it something they have that they just need to turn over because it’s held by the provincial correctional people? Right.
Adam Stirling [00:04:45] Yeah.
Michael T. Mulligan [00:04:45] So it’s a broad span since you might say, well, they’ve got it, give it to, but you can’t just keep that. But here there was an agreement that that was a third-party record and that would be, for example, you know, let’s say there is a crime committed and let’s say, it’s not a government thing. Let’s say it’s just somebody has a videotape of it on their security system from their home. Right. And let’s say an accused person wants that recording because they say, hey, this will show that I was defending myself or that it wasn’t me or whatever. Right. And in that case, there has to be an application made to get something that a third party has, because the police don’t have it, the crown doesn’t have it. It’s, you know, Mrs. Smith, who’s got the video recording. Right. And so here there was an agreement that this was a third-party record, even though it was something in possession of the correctional facility. And so, then the remaining part of the test to start the process of getting a third-party record is that the judge needs to be persuaded the third-party record is likely relevant. Because you don’t want sort of a fishing expedition saying, look, I just want everyone’s doorbell camera for the whole neighbourhood or something, You have to show some basis that it would be likely relevant before a judge is going to order the third party to turn it over so that a judge can assess whether it’s, in fact relevant. And then the final consideration that applied here was a concern about the privacy interests of the of the people on the video. So, for example, the inmates that may have committed this assault in custody.
Adam Stirling [00:06:23] mm hmm.
Michael T. Mulligan [00:06:23] And the crown expressed a concern about, you know, they wouldn’t want to have them identified. There could be some retribution in jail, that kind of thing.
Adam Stirling [00:06:31] mm hmm.
Michael T. Mulligan [00:06:32] And so the judge or the judge or the Court of Appeal here ordered that the correctional facility produce two copies of it, one, an unredacted copy for the judges to look at, and a second copy that would have the identity of the presumably people that beat this man pixilated to protect their privacy.
Adam Stirling [00:06:53] hmm.
Michael T. Mulligan [00:06:53] And so on that basis, the Court of Appeal judge has ordered that at least for that first stage likely relevance, that threshold has been met because it’s clear there is a video of this because the staff looked at it and described it and it could have relevance because if the man was assaulted in custody and lost vision in one eye, that would be a collateral consequence that the judges might want to take into account or might choose to take into account when determining whether the nine year jail sentence was unfit or not. And so, on that basis, the video will be ordered to be provided to the court and then a judge could review it, and then arguments made about providing it to the the man or, realistically his lawyer. So those are the concepts. They include collateral consequences, third party records and how that might fit into a into a sentence appeal. The other thing I think I should probably mention.
Adam Stirling [00:07:54] hmm.
Michael T. Mulligan [00:07:54] Is that some people may be wondering, how is it that somebody could be assaulted in a jail and have nobody there to witness it? No staff members?
Adam Stirling [00:08:02] Yeah.
Michael T. Mulligan [00:08:02] Jails are dangerous places. We had a case a number of years ago our firm did, which involved a man who, in a pre-emptive way hit another inmate with a weight device in the gym.
Adam Stirling [00:08:20] hmm.
Michael T. Mulligan [00:08:20] And the evidence from the correctional staff was that they don’t enter the gym. It’s too dangerous and they have no way to protect an inmate if they are going to be potentially the subject of a of an assault.
Adam Stirling [00:08:33] Wow.
Michael T. Mulligan [00:08:33] And all of that played into whether doing something proactively might be justified in prison because the staff don’t have any realistic way to stop an assault from occurring if other people are inclined to perpetrate one.
Adam Stirling [00:08:50] Wow.
Michael T. Mulligan [00:08:51] at sort of at VIRCC, the Wilkinson Road Jail, you know, you have a circumstance where you could have 20, 20 plus inmates in a unit and you have one unarmed jail guard sitting there.
Adam Stirling [00:09:03] Yeah.
Michael T. Mulligan [00:09:03] And so if somebody is inclined to do something, then there is no realistic way that that single unarmed person is going to be in any position to prevent it. And there are some places in the jail, including at that time at Wilkinson Road Jail, the weight room where the staff wouldn’t even enter out of concern for their physical safety.
Adam Stirling [00:09:25] wow.
Michael T. Mulligan [00:09:25] And so they have video recordings of things. But that’s the that’s the actual reality in jail. It is a very dangerous place. And I must say as well, for people that work there, it is a very dangerous place for people to work. Right. They have the staff there intentionally unarmed so that they couldn’t have their you know, if they had a sidearm or something that would be in jeopardy having that taken from them.
Adam Stirling [00:09:49] hmm.
Michael T. Mulligan [00:09:49] And you can imagine what that would produce. And so, you have staff often alone. Guarding a much greater number of people in an unarmed way. And what they have is a little device so that if they got hit and knocked to the ground, it’s supposed to set off an alarm or they can push a button like a panic button.
Adam Stirling [00:10:08] hmm.
Michael T. Mulligan [00:10:08] But otherwise they’re sitting in there. So, consider that in terms of challenging jobs, those people, I think, work very hard in very difficult circumstances with a whole bunch of people that are very unhappy to be there. And so not easy and not safe for anyone involved. And so that’s how that may play out in this particular sentence appeal. We’ll wait and see what happens next month. But at least the judges will be able to see the attack on this man and take that into account when determining whether the nine-year sentence was appropriate.
Adam Stirling [00:10:44] All right. We’re going to take a quick break here. And CFAX 1070. Michael Mulligan with Legally Speaking will continue right after this.
Adam Stirling [00:10:50] Legally speaking continues on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers. Michael, before the break we were discussing how the exercise room in a prison can be among the most dangerous places, in some cases so dangerous that prison staff and guards will not venture in there, nor can they guarantee the safety of inmates who choose to go into those spaces. Of course, gives rise to an interesting question. What punishment is sufficient to deter poor behaviour for someone who is already in prison and perhaps has the prospect of staying there a long time already? How does that work?
Michael T. Mulligan [00:11:25] Well, there’s a disciplinary process in the prison. And how that works is the subject of the next case. And essentially, if somebody, an inmate, is alleged to have done something contrary to the rules in the jail.
Adam Stirling [00:11:43] hmm.
Michael T. Mulligan [00:11:43] They have sort of a mini hearing to determine whether the person should be punished. And the punishment can include putting the person into solitary confinement. And sometimes they call it the hole. And that can, of course, have very serious long-term consequences when you deprive somebody of sort of human contact for an extended period of time. And there is a case now dealing with the issue of whether it’s appropriate to have that decision made, whether to whether an inmate can be disciplined, including putting them in solitary confinement on a standard of whether they probably did something wrong.
Adam Stirling [00:12:25] Hmm.
Michael T. Mulligan [00:12:25] Because that’s what the provincial that’s how the system currently works. There is the standard, of course, in a criminal case is whether the crown has proven that somebody did something beyond a reasonable doubt. That’s quite a high threshold before we put people in prison or convict them of crimes.
Adam Stirling [00:12:43] Yes.
Michael T. Mulligan [00:12:45] And that lower standard of, probably, a balance of probabilities, is the standard that would apply if you were, for example, suing somebody for money. Do they probably know your money? We apply a lower threshold to that. But the provincial jails use that same lower standard of probably when deciding whether to punish an inmate. And so, there’s a challenge going on about whether that’s constitutionally permissible. And there are two grounds, or there are two constitutional grounds that that’s that are referred to in that case. One is that there’s a specific provision under section 11(d) of the charter which sets out various rights in criminal and penal matters, which provides that to be a person has a constitutional right to be presumed innocent until proven guilty according to the law, in a fair and public hearing by an independent and impartial tribunal. Which would seem to answer it. But like everything in this world, there’s subtlety. And so, there’s some doubt based on previous cases about whether a prison disciplinary hearing is the kind of thing which would be the kind of thing covered by 11(d). And the province was arguing that this claim shouldn’t be allowed to proceed at all because it’s doomed to fail, because this isn’t the sort of thing that that section is intended to apply to. However, the inmate and the group bringing the challenge here is relying not only on that section, but the broader principles in terms of fundamental justice that are set out in Section 7 of the charter, which provides that everyone has the right to life, liberty and the security of a person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. And so, the alternative argument being made is that that kind of punishment, based on a standard of probably doesn’t meet that constitutional threshold either. And one of the things which is being relied upon in this case and is being brought by the West Coast Prison Justice Society and a particular inmate, is that all of this, that system, which is to say punishing people and a standard of they probably did something, even if maybe they didn’t, applies not only to people who are serving a sentence, but also applies to inmates who are there on remand, who are denied bail and who are presumed innocent of committing any crime. And so, you can have a person who’s presumed to be innocent waiting in jail for their trial. And on a standard of probably they did something, but maybe they didn’t. They could be put into solitary confinement as a punishment. And so that’s a core argument that’s being made. And so, on this recent application, it was an application by the province to try to strike out this claim, saying this is hopeless, it can never succeed. That failed. And the judge, hearing that application found that, you know, while the some of the arguments being made here were novel. Right. They haven’t previously been decided. He was, it was he, was not persuaded that it was doomed to fail. And so, we don’t have a final answer on it. But we do have an answer that this is at least arguable, whether it’s constitutionally permissible to punish somebody on a standard of probably. You know, I suppose the other thing I should say is that when you’re having a legal argument about constitutionality, that’s not an argument about whether something is good, right, reasonable, or fair.
Adam Stirling [00:16:35] hmmm.
Michael T. Mulligan [00:16:35] It’s an argument about whether it’s legally allowed.
Adam Stirling [00:16:39] hmm.
Michael T. Mulligan [00:16:40] And so I suppose the other thing I would say about all of this is that perhaps the province should give some consideration, quite apart from the constitutional test, which is is it possible can you do this.
Adam Stirling [00:16:51] Yeah.
Michael T. Mulligan [00:16:51] As to whether it’s fair or should you punish somebody potentially in a very severe way if you’re only trying to think they probably did something, even though you agree that they might not have? Is that appropriate? Which really should be the test in life. Not, can we do this. The test should be, should we do this. You know, the analogy I’ve used before is setting the sort of thing from time to time, cause me great concernation. When do you hear political debates about criminal justice matters, we’re off to the language turns into is this constitutionally permissible rather than is this a good idea or wise or fair?
Adam Stirling [00:17:31] Interesting.
Michael T. Mulligan [00:17:32] Not to say, you know, setting something, doing something because you can legally do it. The analogy of used is it’s like setting the recommended dose for medication by figuring out what dose would kill the patient and then recommending you take just a little less than that. That shouldn’t be how you approach things. You should always approach it from the point of view of what’s the appropriate thing, not what can we get away with.
Adam Stirling [00:17:53] Hmm.
Michael T. Mulligan [00:17:53] And so that’s the issue. And we’ll wait and see what comes of it. But the province didn’t at least succeed in getting it struck out as having no hope of success.
Adam Stirling [00:18:03] All right. We have just over 4 minutes remaining and a court of appeal overturning an interlocutory injunction. Lot of complicated stuff there, but I see an online respondent about a pet food store. What is this?
Michael T. Mulligan [00:18:19] That is a mouthful. The background of this is that a woman who was employed at a pet food store over in the lower mainland for about a month, quit her job, and then some time apparently on good terms, but then sometime later started posting things online, claiming that the pet shop was, I think language was things like, disgusting and then alleging that they had had a power outage and that some of the pet food had thawed and been refrozen again. She was sort of saying disparaging things about the business.
Adam Stirling [00:18:51] oh yea.
Michael T. Mulligan [00:18:51] A bit more than that. And so, she got a cease-and-desist order from the business, the lawyer for the business saying, stop doing that, it’s defamatory to which she continued doing it and then got sued for defamation.
Adam Stirling [00:19:06] hmm.
Michael T. Mulligan [00:19:06] And the next step to the and the woman kept posting things online. And so, the business went to court and sought an injunction to have her stop doing that. And the judge that originally heard it applied a test, which is well known from the case, told RJR McDonald. It’s a case that deals with when can you generally get an injunction before you’ve had a trial to make one side to the other stop doing something. And generally, there’s a three-part test. Is there a serious issue to be tried? Will there be irreparable harm if there isn’t an order to stop doing it right away? And then a balance of convenience sort of, you know, who would be more put out by an order to stop doing something? And on that basis, the judge who originally heard the application ordered this woman to stop posting anything about this pet food store.
Adam Stirling [00:19:55] hmm.
Michael T. Mulligan [00:19:55] That got appealed. And the Court of Appeal clarified that that general test, which applies in almost every other circumstance for an interim injunction, like an order to stop doing things before we have the trial, is not the test in a case for defamation.
Adam Stirling [00:20:12] hmm.
Michael T. Mulligan [00:20:12] And the reason for that is that there’s a balancing right There is this balancing about not wanting harm and the balance of convenience. But there’s also a high, high importance we place on freedom of speech.
Adam Stirling [00:20:23] Yes.
Michael T. Mulligan [00:20:24] And so you don’t want to have a circumstance where somebody who’s claiming, hey, that’s defamatory, can’t get an order that muzzles the other person from saying anything at all. And so, there’s a higher threshold. The court has now clarified when you are applying for an injunction in a defamation case and the test starts with the person asking for the injunction has to establish that the things the person was saying are manifestly defamatory, which means that a jury not finding them to be defamatory would be perverse. So, it has to be very clearly defamatory.
Adam Stirling [00:21:01] hmm.
Michael T. Mulligan [00:21:02] Not just, well, arguably so.
Adam Stirling [00:21:03] Yes.
Michael T. Mulligan [00:21:04] And on that part of the test, the Court of Appeal on this appeal of the interim injunction said they couldn’t find beyond doubt that, for example, no meat thawed during a power outage and was refrozen. Maybe that’s so maybe it’s not, but it’s not so clear that it would be perverse for somebody to. Yeah. This woman was saying the truth.
Adam Stirling [00:21:26] Yeah.
Michael T. Mulligan [00:21:26] Which you’re permitted to do right?
Adam Stirling [00:21:28] Yeah.
Michael T. Mulligan [00:21:28] Right. Truth, justification, and fair comment are all defences to claims for defamation. And so, the Court of Appeal found the judge who heard the original application applied what is a common standard and would apply in virtually every other type of claim, but not in defamation claims. And so, there’s this higher threshold which comes from the fact that we don’t want a circumstance where you can have somebody effectively muzzled. No pun intended in the pet food case for statements which may or may not at the end of the day be defamatory because they may or may not be true for example. And so, the Court of appeals overturned that, and the pet food store does not get their order and the case will continue to trial. The thing that might deter the woman from continuing to say things that are if they are false, because that, of course, is already defamation claim going. And she could wind up with a big bill if she was unsuccessful. But the pet food store won’t be able to get the original order, which was stopping her from saying anything at all online, which of course is also very broad. She couldn’t even say good things about the pet food store.
Adam Stirling [00:22:35] Yeah.
Michael T. Mulligan [00:22:35] No muzzling of the pet food case and we’ll wait and see the outcome.
Adam Stirling [00:22:39] In the second half of our second hour every Thursday on CFAX. It’s Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Michael, pleasure as always. Until next week.
Michael T. Mulligan [00:22:47] Thanks so much. Have a great day.
Adam Stirling [00:22:48] You too. Bye now.
Automatically Transcribed on November 10, 2023 – MULLIGAN DEFENCE LAWYERS