This week on Legally Speaking with Michael Mulligan:
An analysis of various policy proposals the BC United Party issued concerning the criminal justice system.
The proposals include hiring additional police and Crown, ending the decriminalization of drugs, funding body cameras for all police, opening more courts, and pursuing civil claims against people who traffic drugs that cause death.
A transcript of the show:
Legally Speaking Sep 14 2023
Adam Stirling [00:00:00] It’s time for our regular segment, 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 [00:00:09] Hey, good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:11] Lots of interesting things on the agenda. And you, of course, operating as a criminal defence counsel, have given us your opinions on various proposals to supposedly improve BC’s criminal justice system, or at least support public safety. And I know there was an announcement earlier this week you want to opine upon.
Michael T. Mulligan [00:00:29] There was, and there are a whole number of interesting elements in it that sort of run the gamut in terms of, I think, likely effectiveness if they were implemented.
Adam Stirling [00:00:40] Mm hmm.
Michael T. Mulligan [00:00:40] And what it is, was a policy announcement by, I guess, interesting today in the context of the BC United versus Conservative issue.
Adam Stirling [00:00:49] Yes.
Michael T. Mulligan [00:00:49] But this is a series of proposals, policy proposals by the B.C. United Party, they entitle the United for a Safer B.C., with a number of suggestions to try to improve upon what looks like in Victoria and other larger towns and cities around the province. You know, we seem to have created all ages and abilities open air drug use zone in various urban centers. And so, I think there’s probably lots of interest in trying to rein in some of that activity and the associated social disorder that that produces. I must say also today smiled, reading the announcement about the proposal to ban drug possession within 15 meters of various things. One of the things that they’ve listed there is within 15 meters of a wading pool. So, I have of visions of all manner of small businesspeople heading off to Canadian Tire to purchase the remaining stock of turtle pools to put outside their in/or outside their business to try to deter the open-air drug use. So anyways if there’s a run-in shortage of wading pools will know what’s going on.
Adam Stirling [00:02:06] I wonder how it’s defined in statute.
Michael T. Mulligan [00:02:09] Yeah, apparently, it’s within 15 meters of a place, a structure playground, a spray, or wading pool.
Adam Stirling [00:02:16] hmm.
Michael T. Mulligan [00:02:16] Or skate park, wading pool. Get yourself a turtle pool and see if you can get some response about.
Adam Stirling [00:02:23] Oh.
Michael T. Mulligan [00:02:24] The list of proposals is one of them is to provide funding to help hire 500 additional police officers across the province. The language they use in their proposal is to aggressively hire the 500 police officers. I don’t know if aggression is the issue, but certainly funding might help. I mean, we’ve come to a state where, you know, the Victoria Police Department has banners hanging off the police building trying to encourage people to apply. And I recall a little while ago, driving to the ferry in Vancouver and the Delta Police Department had erected, you know, those flashing highway signs, usually directing, you know, some sort of a detour or something.
Adam Stirling [00:03:05] Yes.
Michael T. Mulligan [00:03:06] And it was a flashing sign trying to encourage police officers from other departments who were exempt from training requirements to come and join the Delta Police, they were so desperate to find people. And so there is a really serious, in addition to the sort of funding issues that we’ve seen locally, there is a real issue about the capacity to get people to take what can obviously be a difficult job. And so additional funding there, I think that’s probably a sensible one and would have some hope of helping assuming that there are people to take the positions. They’ve also announced their policy would be to use, they use this language, and the NDP has failed and reckless decriminalization of illicit drugs.
Adam Stirling [00:03:48] Hmm.
Michael T. Mulligan [00:03:49] Now I suppose that matters or how that might be interpreted. I think there’s little doubt that the model of simply decriminalizing drugs without providing treatment or in some cases mandatory and secure treatment for people who are addicted is obviously not working. But we also need to bear in mind that the model of prosecuting people criminally for possessing drugs is something we tried for decades, and that didn’t work either. So clearly, more needs to be done. I think one of the analogies might be what happened when we closed secure treatment facilities for people with mental illness in B.C. said, yes, we’re going to provide help in the community and then just didn’t follow through with that part of it. Right. So that’s the policy. I’m sure there’ll be some resonance when people see the, you know, anyone who drives down Pandora or the equivalent in any other city in B.C. is going to obviously do something that has to be done. But I think perhaps the emphasis there should be on the reckless part of it, rather than thinking that the criminalization of it or banning it near wading pools is going to be the solution. Another proposal they’ve announced here is an idea that people would be given, who are convicted of a crime and had a drug addiction would be given a choice between what they describe as traditional incarceration.
Adam Stirling [00:05:14] hmm.
Michael T. Mulligan [00:05:14] Or secure treatment and indicating they would construct new facilities for the purpose of doing that and repurpose existing prison space. Now, on that front, clearly, we have a need for additional secure treatment or treatment facilities and in some cases, secure treatment facilities. But as we talked about before, waiting for people to go and commit some crime, waiting to see if they are convicted of any crime and then providing some form of treatment or secure treatment seems to be not the best approach in the world. We should perhaps consider something a bit more proactive. As we’ve talked about before, we already have legislation that permits somebody to be involuntarily detained if they suffer from a mental disorder and they’re a danger to themselves or others. And if you have somebody who’s taking a drug, which has a very real prospect of killing them and is unable to stop doing that, it seems to me even with the current legislation, you would have a basis to act in a proactive fashion. But you need somewhere for them to go. So clearly the idea of building facilities is a good one. Whether you need to wait for a crime to give people a choice. Maybe we should act on it a bit more quickly. They also have a proposal, entitled Treat All Crime Seriously.
Adam Stirling [00:06:36] hmm.
Michael T. Mulligan [00:06:36] Indicating there should be accountability for offences like bike theft, vandalism, and shoplifting. Now, clearly there should be consequences for things. There seems to be a sort of a take on a number of decades ago, the approach in New York City sort of, look, if you crack down on graffiti and so on, you might help with more serious crime. That seems to be where that’s coming from. They are also in this proposal, which is probably a gong, a proposal to pursue civil consequences for drug trafficking that causes death, pursue civil litigation against dealers in cases where they sell lethal drugs that result in the death or overdose. That that one seems hopeless. Are you really going to engage in years of civil litigation with the hope of seizing somebody’s tent and stolen bicycle, if you’re successful? That is not very likely to get too far or so probably of the list of things so far that one perhaps is a one that might be put on the backburner. They also have an interesting proposal here to fund body worn cameras for all police in British Columbia. That’s an interesting one. You know, they give rationales for here about protecting the public and police alike, providing accountability and transparency. I think there should be in place for all police agencies. There’s certainly, I think, a compelling argument for the use of police body worn cameras.
Adam Stirling [00:08:04] hmm.
Michael T. Mulligan [00:08:05] One of the impacts that you might have would be to reduce pressure on the court system where you don’t have the same kinds of disputes about what happened. It is on video. You’re not going to have to spend a bunch of time sorting out what exactly did the police officer say or do. It’s going to be on video. And so that might be helpful, both in terms of increasing the speed and efficiency of the court process. It might also eliminate the need for police to be attending to testify in some criminal cases. Right. Bearing in mind that in many criminal cases, the police weren’t there to witness whatever happened. Their role in it was, you know, arresting the person when they got a phone call. Right.
Adam Stirling [00:08:44] Yeah.
Michael T. Mulligan [00:08:44] And so if there was some issue about that that was captured on video, it strikes me that that might be an effective way to eliminate some of the time they would spend at the courthouse. That seems like a good idea in terms of funding. So hopefully that gets some traction.
Adam Stirling [00:09:01] Yeah.
Michael T. Mulligan [00:09:03] They’ve also proposed this idea of a dedicated hate crime team.
Adam Stirling [00:09:07] hmm.
Michael T. Mulligan [00:09:07] This one, I think is a little more dubious. They say provide funding to enable units of dedicated liaison officers in all cities, regardless of size, to work with community led resource groups to reduce hate motivated crimes against minorities and marginalized communities.
Adam Stirling [00:09:23] hmm.
Michael T. Mulligan [00:09:23] Now, of course, no one can be in favour of hate crimes.
Adam Stirling [00:09:26] No.
Michael T. Mulligan [00:09:26] So we’re all in favour of reducing hate crimes. Whether you need to have a dedicated team in every community, regardless of size, I don’t know about some communities in the province of a few hundred people. Do you really need a dedicated hate crime team in every, you know, town of 700 people? Probably not. But that’s one of the things they’ve got on the agenda. And then there are several things I want to spend some time talking about in terms of the justice system, in particular in terms of prosecutions, bail offences, hiring crown and court access. So, I don’t know if this would be a good time for the morning break, but there’s several things that are.
Adam Stirling [00:10:04] Let’s do it.
Michael T. Mulligan [00:10:05] The justice system, I think, are worth talking about.
Adam Stirling [00:10:07] All right. Let’s take our first break. As Legally Speaking, we’ll continue with Michael Mulligan again from all good defence lawyers right after this.
Adam Stirling [00:10:14] All right. Legally speaking with Michael Mulligan for Mulligan Defence lawyers, as we continue Michael’s analysis on a suite of policy proposals that were announced earlier this week by BC United with respect to public safety. Michael, where were we?
Michael T. Mulligan [00:10:28] Well, we’re right in the heart of it in terms of proposed changes to the justice system itself. One of the proposals here in that category, they list it as more prosecutors and contractors to fill gaps. And the proposal is to aggressively, I guess, much like with the police hiring, address the shortage of crown prosecutors, including contracting with private sector external counsel, settling the ongoing contract dispute with Crown, and reducing the caseload for prosecutors. There’s a lot to unpack there. First of all, in terms of the idea of trying to hire/recruit more crown, I should say, there was an announcement by, about to that effect by the current government, and that was several months ago. And I looked yesterday at the number of unfilled job postings for crown in the province. And currently there are postings in 13 different communities all across the province, everything from Vancouver, Richmond, North Vancouver, all the way to Dawson’s Creek, Fort Nelson, Fort Saint John, Prince George, you name it, all over the province. And so, they are currently trying to hire people. And the challenge, I think, is that they are trying to hire people with some experience. Right. And there are only so many senior lawyers who do criminal work that would want to go and work for the crown. Right.
Adam Stirling [00:11:56] yeah.
Michael T. Mulligan [00:11:56] And so they’ve got all these current job postings and they are just not filled. Now, there may be other factors there. They talk about settling an ongoing contract dispute. There are contract disputes. The Crown Counsel Association was running ads on CFAX about that.
Adam Stirling [00:12:12] Yeah.
Michael T. Mulligan [00:12:13] And so pay may be an issue there for senior crown. The number of years ago, the province tied crown salaries to judges’ salaries and then has ever since tried to desperately keep judges’ salaries down to avoid having to pay more money to crown. And so, no doubt that’s not helpful when you’re trying to recruit a bunch of people to come and join them. And so, whether the, you know, the crown ranks or crown is maybe they’ll have banners outside their building and highway signs like the police are trying. But there is an issue there. The idea of having people do it on contract is an interesting one. Some prosecution work has traditionally been done on contract on a contract basis, like, for example, other than in Vancouver, federal prosecutions, that is to say prosecutions for things like drug offences, fish, you know, any other kind of things that are federal but not criminal code.
Adam Stirling [00:13:19] hmm.
Michael T. Mulligan [00:13:19] Income tax prosecutions are handled by lawyers who are not government regular employees. There are contracts where affirmative or contract to do that particular type of work. And so perhaps that’s what they have in mind. There is currently a procedure in place where they would hire what would be described as ad hoc crown to do some particular prosecution or to try to cover something where they are completely short staffed. That is challenging because of what they pay. The rate of pay is a fraction of what most lawyers would charge to do that kind of work. And so, if you’re trying to hire experienced people to do it, that’s hard. So clearly, there’s some plan to try to do something about that. And it is complicated, but that’s what’s proposed there. They also have a proposal which they entitle Equal Access to Courts for all British Columbians. Who could be against that?
Adam Stirling [00:14:15] Yeah.
Michael T. Mulligan [00:14:15] But they say deploy community courts focused on crimes like shoplifting, vandalism, graffiti, low level drug dealing and similar crimes. Now, I don’t know how you quite parse those things out, but there is a really interesting history about that and the current reality about that. The history of it in British Columbia is that back in 2002, the then Liberal government closed more than 20 courthouses all across the province, some of them in quite busy places like Delta. Now they shut them to save money. And so, you know, the court system has just been not only then, but frequently is just very much over stretched. Right. You have a limited number of courtrooms. We got rid of a bunch. We have a shortage of judges, and we have a profound shortage of all the court staff necessary to make a court system function.
Adam Stirling [00:15:12] hmm.
Michael T. Mulligan [00:15:12] Like, if you want to have another courthouse open and you need to have the building, but you also need to have judges. And in order for a judge to do anything, you need to have things like sheriffs, court clerks, other people to make it work. And at the moment, the court system is facing a profound shortage of, for example, sheriffs. We have in some places, including in Surrey currently, cases being adjourned because there’s no sheriff to provide security in the courtroom. And they’re unable to recruit people because they don’t pay enough. They pay significantly less than what municipal police forces pay. And the police forces are hanging banners outside their buildings trying to hire people.
Adam Stirling [00:15:53] Yeah.
Michael T. Mulligan [00:15:53] and so best of luck trying to encourage people to take a job doing, again, very difficult and important work. And so, we have a profound shortage of a number of things. Right. And the idea of additional court space, if you’re trying to increase public order and prosecute, you know, every minor offence of bike theft, for example, that’s fine. That may be a good policy idea, but you need to have people to do it. You need to have judges to do it, courtrooms. Maybe we can reopen some of the ones that they shut. You also need to recruit all the ancillary people necessary to make that work. And furthermore, you need crown, and you need defence counsel. You all of that, right?
Adam Stirling [00:16:40] Yeah.
Michael T. Mulligan [00:16:41] And it’s clear that we are stretched trying to make things function. So, the idea of opening some additional community courts, you know, all courts are of course in a community somewhere is probably a wise idea, but all those things need to be addressed. And I must say some of those things at the moment are on the cusp of being a breaking point because, for example, if you don’t have enough sheriffs to keep the courtroom open and the case gets adjourned, then the case winds up getting stayed for a delay. That’s how that plays out.
Adam Stirling [00:17:12] hmm.
Michael T. Mulligan [00:17:12] And so, so much for the treat all crime seriously. Right. That’s how that, that’s what happens. And if you want to attract sheriffs, you had better pay them properly so that people join to do the work or it’s not going to function. They also indicate here if they propose a policy of cracking down on bail offenders, and that’s been an issue, of course, we’ve talked about. They describe it as an NDP practice of not seeking detention or only half of the cases are seeking detention. As I’ve talked about before, there is not really some epidemic of the crown not making appropriate decisions on bail. So, I don’t think that’s really a solution to anything. It’s sort of a political talking point, but certainly increasing court availability and trying to hire people to fulfil the roles necessary to make that happen is a good idea. It’s more than a crown, though. You need to bear in mind all those other things. If you manage to hire a bunch of crown but don’t have judges, sheriffs, court clerks and defence counsel, you’re not increasing the capacity of the system. You need to have all those things.
Adam Stirling [00:18:20] i see.
Michael T. Mulligan [00:18:20] So hopefully there is some investment in it and then they have a proposal here for various things involving. One of them seems like something anyone could be in favour of establishing preventative programs to protect vulnerable kids in school. And we talked about funding for targeting after school sports and at-risk youth. That’s an excellent idea.
Adam Stirling [00:18:42] Mm hmm.
Michael T. Mulligan [00:18:44] And then a couple of other ones which seem maybe a bit wishful thinking. They described them as a partnership to reduce drug imports, trying to share information to keep illicit drugs out of B.C., and another one to better control illicit drug supplies, working with the federal government to control and monitor importation of precursors. Part of the problem, one of the reasons why we have the really visible problem in six or seven people a day dying in British Columbia is that that is an almost impossible task. And the reason why is an almost impossible task these days is that the cost and density and potency of some of these drugs, like fentanyl, they’re worth almost nothing, a very tiny amount. Right. They could come in a suitcase, could provide, you know, hundreds of thousands of doses. And so, thinking that you’re going to manage to interdict every possible, every shipment the size of a suitcase is a hopeless endeavor. And, while anyone and everyone should be in favour of coordination and hard work, thinking that we are going to stop the epidemic of people dying and using drugs by finding every package and box that might contain something is just not realistic. And you know, we have tried, we collectively as a community, tried for decades, you know, with the approach of let’s just see if we can get all of this by way of a criminal response to it. It just doesn’t work. All of those things have the effect of just marginally driving up the value of what would otherwise be a valueless substance so that you have a team of people, figuratively speaking, who are addicted to drugs and spend their entire waking life committing property crime in order to get the money to buy the drugs, to eventually, with some regularity, kill themselves. And so, you know, we’re not going to solve the problem, that problem, serious problem by having a sufficient number of courthouses.
Adam Stirling [00:20:55] hmm.
Michael T. Mulligan [00:20:55] Those things are good ideas. There are other reasons why you want them and there is a role for them. Right. But it is not the complete answer. And so, I guess my take on all of this is somebody who works in the system is that there’s more good than not in this list of proposals, right.
Adam Stirling [00:21:14] Yeah.
Michael T. Mulligan [00:21:15] Some of the things don’t have much chance of success, like suing drug dealers when somebody dies. That’s a talking point without any hope of success.
Adam Stirling [00:21:23] yeah.
Michael T. Mulligan [00:21:23] But other things like properly funding the police, creating perhaps additional secure treatment facilities and so on, those do have some prospect of success. We don’t need to, however, in my judgement, wait for a criminal offence to occur, a criminal conviction to happen, if that happens, in order to try and ensure people who are going to kill themselves by continuing to use drugs and commit crime all day long in order to get the drugs are treated. You know, thinking about it, we only have so many resources we cannot, like the jails don’t hope, it’s hopeless. We don’t have space there. You know, we have currently we’ve taken over and purchased all of these motels and hotels to house people.
Adam Stirling [00:22:14] yeah.
Michael T. Mulligan [00:22:14] But I think in many cases, housing, while that’s obviously a positive thing, is insufficient. Perhaps there would be some opportunity to use some of that space to in an immediate way, provide some form of secure treatment so that you don’t have people simply living in a hotel room, going out every day, committing crime all day long, using drugs and going back to the hotel at night. That’s not a solution. And so perhaps there could be a conversion of some of that space to ensure that people just aren’t choosing a lifestyle of crime and drug use, which is both deadly for them and completely undermining in terms of the community. So maybe there’s some opportunity there. So, an interesting list of things and good to see that there’s some thought being put into it, because I’m sure there are a lot of people who are gravely concerned about what’s going on right now.
Adam Stirling [00:23:10] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour of Thursday. Pleasure as always.
Michael T. Mulligan [00:23:17] Thank you so much. Have a great day.
Adam Stirling [00:23:18] You too. Bye now.
Automatically Transcribed on September 15, 2023 – MULLIGAN DEFENCE LAWYERS