Threats to Legal Independence in British Columbia and House Arrest for Manslaughter

 

Could the very pillars of legal independence be shaking in British Columbia? Michael Mulligan, Barrister and solicitor of Mulligan Defence Lawyers, joins us in dissecting the controversial Legal Professions Act. His perspective shines an unflinching light on how this act could threaten the impartiality crucial to our justice system and the public interest. Get ready for a stirring analysis of the government’s rush to legislate, the alarm sounded by legal professionals, and the constitutional challenges now rising to the surface.

Switching gears, we take a closer look at a recent manslaughter case that has left the legal community and public pondering the nuances of justice. Mulligan unpacks the sentencing of a Trinity Western University security guard, convicted of manslaughter and handed an 18-month conditional sentence. This segment explores the delicate balance of judicial discretion, weighing intent against outcome and character against the gravity of loss. We’ll also touch upon the escalating stakes in residential tenancy disputes finding their way to the Supreme Court, showcasing the evolving landscape of legal accountability and the complexities that lie therein.

 

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.

 

Transcript of the show:

 

Legally Speaking May 23, 2024

 

Adam Stirling [00:00:00] It’s time for a regular segment. Legally Speaking, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan with Legally Speaking. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:10] Hey. Good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:13] It was an item that you and I discussed before it received royal assent. But in the interim, the B.C. government has passed the Legal Professions Act using closure. What happens next?

Michael T. Mulligan [00:00:25] Nothing good. So.

Adam Stirling [00:00:27] Good answer.

Michael T. Mulligan [00:00:28] Yes, indeed. That’s the short answer. Here’s the long one. So this was the act. We talked about the government, trying to replace the Law Society, which is the entity that would that regulates lawyers in British Columbia. And ever since it’s existed in British Columbia, it’s done so independent of government. And, of course, as we talked about, that is incredibly important because the work of many lawyers is to oppose what the government is doing. Right. Lawyers, in many cases, are the individual’s protection from the government. And so it, it should be obvious why it would be unwise to have a regulatory body with authority over the people whose task it is too often to oppose things the government is trying to do. That should be apparent to anyone who thinks about it, at all. And so, this particular bill, Bill 21, would do exactly the opposite of what we should be doing or striving for. And it, for example, replaces the current object of the Law Society. Which number one job is this: to protect the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. It’s a pretty good objective.

Adam Stirling [00:01:44] hmm.

Michael T. Mulligan [00:01:44] And instead, this, this bill, this piece of legislation now, would insert government, current government priorities into what the regulator of lawyers is required to do. And so, for example, rather than what as the goal the goal would then be to facilitate access to legal services and then the number two goal is, for example, to implement the United Nations Declaration of the Rights of Indigenous People, for example.

Adam Stirling [00:02:14] hm.

Michael T. Mulligan [00:02:14] And then it goes on with other various government priorities, all of which you might or may not agree with.

Adam Stirling [00:02:17] Yeah.

Michael T. Mulligan [00:02:18] The point is that you should not have the regulator of lawyers tasked with trying with being required to implement, you know, the political priorities of the government of the day, even if you like that one, you may not like the next one. And the point is that lawyers shouldn’t be regulated by some entity that, got at its goal, achieves government political objectives. And so that’s why, at the heart of it, this proposal is a poor one. And to make matters worse as this poorly conceived piece of legislation, as the debate started, only a very short time into it and only having gotten through a few sections of it, the government used closure. For those unfamiliar with that, that means using their majority to vote, to stop all debate, to then pass the legislation without even debating it.

Adam Stirling [00:03:09] Yeah.

Michael T. Mulligan [00:03:09] And so that’s what happened with this just, almost unbelievable, exercise of, authority there passing a piece of legislation which would undermine the independence of lawyers trying to force them to, do things the government wants and then refusing to even debate it. And so a genuinely undemocratic and outrageous way in which this was passed and the immediate response was probably what you would expect, an announcement by the, Law Society and others, including the Canadian Bar Association, Trial Lawyers Association, I think Lawyers Rights Watch and others are all, suing now the government to challenge the constitutionality of this piece of legislation. And it’s easy to see why. You know, the Supreme Court of Canada previously has talked about the fact that, you know, to the extent the language is true, to the extent humanly possible, so far is by human ingenuity, it can be designed. The Law Society needs to be free from state interference in a political sense, and with the delivery of services to individual citizens in the state. And so, the Legal Profession Act Bill 21 is the absolute opposite of that. And we will see a legal challenge proceed. Unless there is some, rationality comes either to the current government or change of government. Happily, both the B.C. Conservative Party and the B.C. United Party have indicated they are opposed to this. The conservatives clearly indicating if they are, elected, they will repeal it. So hopefully there will either be a reconsideration by government, current or a change that would result in this being repealed. That would be the sensible thing to do. But otherwise we will have to wait and watch, as a legal analysis of this runs out probably for the next several years. So terrible piece of legislation undebated. And will now be the subject of both political interest and legal challenges. So that’s what’s happened with the Legal Profession Act Bill 21.

Adam Stirling [00:05:18] All right. And this is a previous story up next, as we’ve discussed previously regarding a manslaughter conviction and a university security guard, and we now have a sentencing decision to discuss. Yes.

Michael T. Mulligan [00:05:30] Indeed we do. And so, listeners may recall, this discussion from a couple of weeks ago when the judge’s decision came out. And it was a security guard for a University, Trinity Western University, who was called to deal with a report of a man who was rifling through rooms appeared to be either under the influence of drugs or alcohol. Students calling in about safety. There was one security guard on duty that day. He eventually found the man or spotted the man, told him to stop. The man bolted, towards some other, student. And a security guard wound up running over and tackling him. The person who was tackled and responded physically by doing things including, hitting a security guard in the head with an open and closed fist, pulling his hair, trying to headbutt him, swearing at him, trying to knee him, and spitting on the security guard. The security guard punched the man and then put him in a headlock. All of which, so far, so good. According to the judge, the judge found clearly the security guard at this point was acting out of concern for the safety of both himself and students. But the judge found that after the man stopped struggling, spitting, and trying to kick and punch the security guard, that was not reasonable to the security guard to keep the man in a headlock. And, sadly, the man unfortunately became unconscious. And by the time the police and ambulance showed up, they were unable to get a pulse, and the man ultimately passed away. And for a manslaughter charge, which is what the man was charged with is not necessary that there be an intention to cause somebody’s death. And here the judge found clearly that there was no intention to do that. But the judge did find that there was an unlawful act in the form of an assault by keeping him in a headlock too long. And so on that basis because that was the cause of death. The man was convicted of manslaughter. And so the judge was then sentenced with, what do you do to sentence that man? And this was something that people should be aware of for murder, Of course, in Canada there is only one sentence life in prison. There can be different periods of parole ineligibility. Like when you could ask for parole. But life in prison is the only possible sentence. For manslaughter there is no mandatory minimum sentence, and the maximum sentence is life in prison. And the judge pointed out that manslaughter is one of the offences for which there is a very wide range of possible sentences based principally on the degree of moral culpability of the person who was convicted.

Adam Stirling [00:08:13] Hmm.

Michael T. Mulligan [00:08:13] And as the judge pointed out, there could be manslaughter, which are near an accident which would be sort of like this. There’s no intention to kill this man.

Adam Stirling [00:08:22] yeah.

Michael T. Mulligan [00:08:22] Or cases which are near murders. Right. Where, you know, maybe this wasn’t quite the mental requirement for a murder, but very close to it. And so the range of sentences for manslaughter ranges from life in prison to probation. And so the judge was tasked with, well, what is to be done here with the security guard and the Crown in this case was asking the judge to impose a five-year penitentiary sentence. Well, defence counsel was asking the judge to impose either probation, a suspended sentence or what’s called a conditional sentence order, which is sometimes called house arrest, or it’s a jail sentence that somebody could serve at home. But if they breach the conditions, they would then presumptively go to jail for the rest of the sentence. And in making this decision, the judge reviewed various things starting with that. There’s another concept called a victim impact statement. There’re statements by the family members of a deceased or the victim of a crime, setting out the impact the crime had on them. And obviously, this had a very serious impact on the deceased man’s family. Right. Apparently, he had serious mental health problems. That was likely the cause of his behaviour, breaking into the rooms and behaving the way he was with the students. But on the other hand the judge found that the man who was convicted, the security guard, he had no criminal record, he was a contributing member of society, many letters of reference speaking to his character. By all accounts, a hardworking, supportive family man, described by people as their rock and roll model. And he was also somebody who was Indigenous and had, had trauma as a result of some of that background. That’s all too common for Indigenous people.

Adam Stirling [00:10:10] hmm.

Michael T. Mulligan [00:10:10] And, found as well that the security guard, believed that he was putting using the headlock in a safe way, trying to make sure the man’s airways remained open. But he did not know that he could cause serious harm if blood vessels were constricted.

Adam Stirling [00:10:27] Interesting.

Michael T. Mulligan [00:10:27] So not only was the man thought he was doing what he was doing safely, but he was not at the end of the day.

Adam Stirling [00:10:33] Yeah.

Michael T. Mulligan [00:10:34] so that’s the fact that the judge had to deal with. The judge also found there was no need for rehabilitation and there was no risk of this person committing further criminal activity. There’s just no basis to believe that. And so when a judge is determining whether a conditional sentence should be imposed, the judge has to first of all determine would a sentence of two years or less than two years be appropriate. Right. Because you cannot have a conditional sentence that’s longer than that. And then if so, the principal, consideration for a judge is whether the safety of the community would be endangered if you allowed somebody to serve their sentence on house arrest rather than in a prison or penitentiary. And here the judge found that indeed, a sentence of less than two years was appropriate. She rejected completely the Crown suggestion that five years was necessary and in jail. And then based on that background that I just talked about. The judge found that indeed a conditional sentence would be appropriate. One of the other things, which I think was insightful by the judge, and she’s a judge who used to be Crown counsel here in Victoria for many years. One of the things she pointed out is that, you know, a, the family was concerned that they thought there was a lack of remorse expressed in the court process. And the judge pointed out that, you know, the court process is not the sort of place for where reconciliation and remorse is generally a part of it. It’s an adversarial process.

Adam Stirling [00:12:01] Yes.

Michael T. Mulligan [00:12:01] But nonetheless found that this man was genuinely remorseful. He apologized. He had no intention of causing this harm, and he thought he was protecting people. And so the judge did impose an 18-month sentence, but did so on a conditional basis, so that the man will be able to serve that sentence at home. So, like many of those sentences, he will have a curfew. You have to be at home between midnight and 6 a.m., not use, you know, alcohol or other substances because it’s a jail sentence. Not that he had any issue with those things, but also imposed 120 hours of community work service. And in the, and made a recommendation, although this isn’t interesting, the up to a judge to decide she was simply making a recommendation, that some or all of that community work service involve educating others security guards, bouncer, police and those involved in the martial arts about the dangers of neck restraints and how they could lead to the sort of tragedy that occurred in this case, even though that wasn’t what was intended. So it’d be interesting case, both in terms of the outcome, finding that there was an assault despite what this man was doing. And, how quickly something can turn into a death and result in a manslaughter conviction. And also an interesting case because it demonstrates just how much judgement there could be for a judge to make in terms, what do you do about that at the end of the day? And, here, the outcome will be rather than five years in the penitentiary that the judge found would serve no purpose. The man will at least be able to serve the sentence at home and hopefully do some useful work, educating others about the danger of these kinds of neck restraints so that there isn’t future tragedy. So that’s the case of the security guard, and the manslaughter conviction.

Adam Stirling [00:13:45] Michael Mulligan again with Mulligan Defence Lawyers, Legally Speaking. We’ll continue right after this.

[00:13:50] COMMERCIAL.

Adam Stirling [00:13:51] All right. Legally speaking continues on CFAX 1070 with Michael Mulligan with Mulligan Defence Lawyers. Up next, it says when residential tenancy claims can go directly to the Supreme Court, bypassing the Residential Tenancy Branch process. I didn’t even know they could do that.

Michael T. Mulligan [00:14:06] Indeed, it wouldn’t have come up a lot in the past. But as a result of both E inflation and B, the very substantially increased, for penalty awards under the residential tenancy legislation, that may become more common.

Adam Stirling [00:14:25] hmm.

Michael T. Mulligan [00:14:25] And the reason for that is a constitutional one. We have, superior court judges, in Canada are appointed by the federal government under section 96 of the Constitution Act. For those keeping score at home, and that the Constitution provides special protection for superior court judges. Like they can’t be removed except by way of a joint resolution of the Senate and House of Commons. It’s sort of a very high degree of autonomy and protection, as it should be. Right. You don’t want judges getting fired or demoted for making decisions you don’t like. That’s all part of the importance of independence. Not only of the legal profession, but the judiciary. And so in order to make that meaningful, if provinces, or the government could just create other courts or tribunals that didn’t have any of those protections at all, and then just shuffle all of the responsibility of superior court judges to that inferior tribunal, that independence and protection would be meaningless.

Adam Stirling [00:15:31] hmm.

Michael T. Mulligan [00:15:32] Because those people could be fired or eliminated or, you know, punished or whatever for their decisions. And so that’s not allowed. And one of the implications of that is that and this also explains why, provinces have limits on the small claims jurisdiction of provincial court judges. Right. Provincial court judges are appointed by the provincial government. While they do have some constitutional protection, not the same degree of protections of section 96 court superior court judge.

Adam Stirling [00:16:03] hmm.

Michael T. Mulligan [00:16:04] And as a consequence of that, for example, provincial court small claims only have a jurisdiction up to $35,000 in British Columbia. And it would be constitutionally impermissible if the province just said, well, we’ll just make the financial authority of a provincially appointed judge unlimited. They could just do everything a Supreme Superior Court judge would do, because then you would have people making those decisions that would not be potentially independent as section 96 provides for. That’s the history of it. Now, that has implication not just for things like small claims jurisdiction. It also has implications for things like the jurisdiction of the Residential Tenancy Branch. And the Residential Tenancy Branch only has jurisdiction to deal with disputes where the amount of money involved is a maximum of $35,000, the same as the provincial court jurisdiction. And that is all for exactly the same constitutional reason. Now, in the past, that wouldn’t have come up a lot, because usually the amount of money involved in a residential tenancy dispute would be less than $35,000. So you could have a residential tenancy process, which is designed to be kind of simplified and theoretically faster, although apparently that’s not been achieved all the time. Which we have. Now, if you have a claim that’s for more than $35,000, that’s not allowed.

Adam Stirling [00:17:29] Hmm.

Michael T. Mulligan [00:17:29] You have to go to the B.C. Supreme Court. And so, the case I’m going to talk about is a case involving a particular type of a particular claim by certain individual, which wouldn’t be the most common. But what I just talked about will be an issue. For example, the province has sort of added sort of punitive provisions to try to prevent tenancies from being ended. For example, if a landlord wants to move into property, they have to move into it and live there for I think it’s going to be a year. If they don’t do so, the tenant can go get an award potentially for 12 months’ rent.

Adam Stirling [00:18:08] wow.

Michael T. Mulligan [00:18:09] Now, think about that. Let’s say you rented a single-family home, and the rent was $3,000 a month.

Adam Stirling [00:18:14] Yep.

Michael T. Mulligan [00:18:15] Okay. Landlord gives you notice they want to move into it. And let’s say the landlord’s alleged to have moved out after 11 months. Well, the tenant might be able to get themselves 12 months’ rent. And guess what? That’s over $35,000. So no jurisdiction for the residential tenancy branch. You’ve got to go off to the Supreme Court. That wouldn’t have come up a lot in the past, but now will. This particular case was an interesting one. This is a case involving a claim made by a long-time resident of B.C. Housing. And he was making a claim that his right to quiet enjoyment of his apartment. Presumably, subsidized accommodation under B.C. Housing was interfered with by a variety of things. He was alleging traffic noise, heat, other tenants smoking, and he alleged that a B.C. Housing employee entered his unit in 2023 and broke a curtain he was using to keep the heat out.

Adam Stirling [00:19:13] huh.

Michael T. Mulligan [00:19:13] And so he was suing, and he was suing for large amounts of damages. He was suing, claiming that he was entitled to $5 million for breach of is quiet enjoyment and $8 million for mental and physical injury.

Adam Stirling [00:19:33] hmm.

Michael T. Mulligan [00:19:33] Now, the judge hearing this thing thought, well, there’s no likelihood that he’s going to get that, those amounts of money, right.

Adam Stirling [00:19:40] Yeah.

Michael T. Mulligan [00:19:40] But the, the only thing the issue here was, could you get more than $35,000? And the as the judge pointed out, the man agreed that he was going to amend his claim. He self-represented to put it in the correct legal language alleging trespass and defamation and negligence and harassment by BC Housing. And the judge concluded, well, it wasn’t plain and obvious that those claims wouldn’t succeed, nor was it plain and obvious that the band couldn’t get more than $35,000. If you managed to prove those things. And so the result was despite an application, by BC Housing to try to get this claim dismissed on the basis of, hey, this can’t succeed, or shouldn’t this be back as a residential tenancy matter? The judge analyzed, those jurisdictional limits, which we just talked about and found that, no, indeed, this man was claiming more than $35,000. And while he might not get $8 million, he might get more than $35,000, if he proves the things that he’s claiming and so directly to the B.C. Supreme Court. And, well, that might seem like a bit of an outlier. For the reasons we talked about. It’s not going to be in all sorts of other circumstances. I mean, what’s the average rent for you know, even like a two-bedroom apartment, let alone, the average rent for a freestanding single-family home?

Adam Stirling [00:21:06] Yeah.

Michael T. Mulligan [00:21:07] That is going to be, I would imagine the I haven’t looked at the market listing.

Adam Stirling [00:21:11] It’s close to $3,000.

Michael T. Mulligan [00:21:11] What I heard.

Adam Stirling [00:21:12] Yeah.

Michael T. Mulligan [00:21:13] Yeah. And as soon as you hit that $3,000 figure and you multiply it by the, 12 month sort of penalty provision, if somebody were to terminate a tenancy and then not live there for 12 months, all of those are going to skip right past the residential tenancy branch and go straight into Supreme Court, which has a bunch of knock on effects. But there’s much more procedure to succeed in that. You’re much more likely to need a lawyer to help you with that. Like in the case we just talked about, this man who’s, you know, he didn’t know what paperwork to use and, you know, he should have used a petition rather than a notice of claim.

Adam Stirling [00:21:51] Yes.

Michael T. Mulligan [00:21:51] You know, the judge was trying to help him out. Okay, you got to get this different paperwork and file that, change the wording you’re using. It’s not a self-serve system like small claims court or the Residential Tenancy Branch, which is designed to be you know download a form, fill the thing, and pass it over. Right. It’s much more process intensive because you could be dealing with millions of dollars or whatever in Supreme Court.

Adam Stirling [00:22:12] Yes

Michael T. Mulligan [00:22:13] And so it’s just one more thing we need to think about, when you hear about those, proposals again, whether you think they’re good or bad or fair or not or what the big, the policy implications are, the government has now got themselves to a point thanks to inflation and big penalties, where things are going to be moving into Supreme Court and the provincial government won’t have any authority to stop that. So that’s why residential tenancy cases may be going upstairs to the B.C. Supreme Court.

Adam Stirling [00:22:40] Michael Mulligan again with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Thank you as always.

Michael T. Mulligan [00:22:47] Thanks so much. Have a great day.

Adam Stirling [00:22:48] All right. You too. Quick break. The news is next.

Automatically Transcribed on June 7, 2024 – MULLIGAN DEFENCE LAWYERS