This week on Legally Speaking with Michael Mulligan:
The first case discussed on the show involved three First Nations Children who were brought to BC from Saskatchewan to live with their grandmother. The parents of the children were unable to care for them because of ongoing alcohol and substance abuse.
Shortly after they arrived the grandmother found marijuana in the effects of one of the children who was a nine-year-old girl. The girl clearly had a very challenging background. The judge found that she had “extensive knowledge about drugs (for a 9 year old girl) of multiple varieties, including how to consume them and disclosed seeing people do bumps and lines of cocaine and exchange money for drugs.”
While the grandmother had attended 16 court appearances concerning the children and made clear that she was willing to care for the children if their parents fell back into addictions, she was not applying to become a guardian for the children.
Because the grandmother wasn’t applying to become the children’s guardian, the Director of Child, Family and Community Service opposed her becoming a formal party to the court proceedings concerning the safety of the children.
Despite this opposition, the judge hearing the case relied upon 2021 changes to the Interpretation Act that require legislation to be interpreted in a way that is consistent with the Declaration on the Rights of Indigenous Peoples Act. This legislation is based on the United Nations Declaration on the Rights of Indigenous People.
Because of the principles in this legislation, the judge found that the grandmother should be able to participate in the court proceedings concerning her grandchildren even though she wasn’t asking to become their guardian.
Also on the show, the ongoing negotiations between the Crown Counsel Association and the Provincial Government are discussed. The Crown Counsel Association represents Crown Counsel who are responsible for the prosecution of criminal charges in BC.
The central issue in the negotiations involves the continuation of a salary agreement that linked the salary of Crown Counsel to the salary of Provincial Court Judges.
Provincial Court Judges have a process to set their salaries that is intended to be independent of government because the judges make decisions involving the government.
On multiple occasions, the Provincial Government has interfered with the independent process to set the salaries for Provincial Court Judges because salary increases for the judges would impact what Crown Counsel are paid.
In 2000, the Crown Counsel Association had a short strike during salary negotiations, which they called a “study session”. During this time several criminal cases were dismissed for want of prosecution. Some of these dismissed cases were later appealed and one of the appeals is discussed on the show. On appeal, the judge hearing the case concluded that a case can’t be dismissed for want of persecution unless the accused person is first asked if they wish to plead guilty or not guilty.
The Crown Counsel Association has been running radio ads raising the prospect of senior Crown Counsel leaving for private practice.
Finally, on the show, a case involving a father who quit his job due to a claim of stress, nine days after a child support order was made is discussed. This was not found to be a basis for reducing the father’s child support obligations or cancelling arrears that had accumulated. Both parents are required to support their children financially and the amount will be determined based on what they could earn, not what they do earn.