Unlawful Halding of Evidence Ends a Murder Trial and First Nation’s Rights vs Electricity
Discover the thin line between lawful investigation and constitutional breaches with our expert Michael Mulligan from Mulligan Defense Lawyers. We dissect a murder case where evidence handling sparked controversy and an acquittal that left many questioning the integrity of the investigation. Dive into a profound discussion on the procedural missteps during the seizure of cell phones and a security system and how these actions swayed a trial’s outcome. The legal dance between police conduct and individual rights is laid bare, offering a rare glimpse into the complex machinery of our criminal justice system.
Shifting gears, we tackle the clash between a First Nation’s rights and energy infrastructure in British Columbia. The heart of the debate? A hydro dam’s operation they claim infringes on their longstanding fishing practices. Mulligan guides us through the nuances of the Kennedy Dam’s effects on the Nechako River and the formidable legal arguments at play. The case transcends a simple legal dispute, shedding light on the intricate relationship between energy needs, environmental responsibilities, and the sovereignty of indigenous peoples. Join us for a thought-provoking exploration of these critical issues that continue to shape the legal and cultural landscape of the region.
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 29, 2024
Adam Stirling [00:00:00] Legally Speaking. As we keep going here from Mulligan Defence Lawyers are going to be talking with Michael Mulligan in just a moment. Let’s see if we can bring Michael up here. Hey, Michael, are you there?
Michael T. Mulligan [00:00:10] I’m here. How are you doing?
Adam Stirling [00:00:12] We’ve got you. Good. Sorry. We had some technical difficulties during the break here, but we have a solid connection now. We can hear you just fine. This is, Legally Speaking, what’s on our agenda today.
Michael T. Mulligan [00:00:22] The first case on the agenda is a, was an unsuccessful appeal from an acquittal on a murder charge, which has some interesting, principles people should know about. The case itself dated from back in 2011, in Surrey. And that timing is significant with what went on here. The fact pattern involved a deceased and his wife, driving in Surrey behind, a 4Runner, which was driving him in erratic fashion. The deceased tried to pass the car. There was a minor collision when it swerved. The two cars stopped. The deceased got out and walked up to the 4Runner. Some words were exchanged, and without warning, the driver of the 4Runner pulled out a handgun and shot him twice, killing him.
Adam Stirling [00:01:10] Wow.
Michael T. Mulligan [00:01:10] Just a tragic circumstance. The wife, his wife of the deceased, got out of the car and started walking towards the forerunner. Saw the driver aim the handgun hit her. She ducked, and the driver missed. Fortunately. So, she survived 4Runner drove away. The issue was, who was the driver of the 4Runner? Okay. The police got some form of a tip that it might be a particular person and might have been driving a relative’s 4Runner. And they were able to obtain a search warrant for that person’s house. That’s the first important thing to know about, which is, that when the, police applied for a search warrant, they need to satisfy a judge or a judicial justice that there are reasonable grounds to believe there’s going to be evidence of a particular place in the place they want a search and a search warrant when it’s authorised, will set out what the police are permitted to go and look for. Right. And this particular case authorised the police to go and search the suspect’s home, to see, amongst other things, his cell phone. The police showed up to execute the search warrant. They went into the home, five adults, lived in the home, and they elected to seize all of the cell phones in the home without making any effort to figure out whose was whose. They also saw a surveillance system in the home, like a security camera system. And they seized that, too. Now, both of those are potentially problematic. The police when they’re executing a search warrant. If they seized some obvious evidence leading out. Right. They’re not required to leave it there. You know, if you go and do a search warrant, in a murder case, and you see the body laying on the ground, you know that that’s not off limits, but you can’t go and otherwise just take things that aren’t authorised by the search warrant. So, they seized all these phones and the security system. But then, didn’t do any kind of careful analysis of the phones. And that brings us to the next problem in the case, which is when the police seize evidence in a criminal investigation, if there is a charge laid with the persons charged with murder. There’s no problem keeping the evidence of the alleged murder, right if somebody who’s charged.
Adam Stirling [00:03:27] Yeah.
Michael T. Mulligan [00:03:28] But if no one is charged, they can’t just keep stuff they took forever. They need permission to keep it. And the first time period would be three months. So, the idea is the police take, somebody would do a search warrant. If they write a report, person’s charge, that’s no problem. Doesn’t matter how long it takes that stuff to be held on to if it’s evidence of the crime. Right. That’s sort of what you would expect. But if you don’t charge somebody and you just take things, it’s a requirement, legal requirements that the police go and get approval to hang on to them when there’s no one charged with an offence. Here, the problem was that they didn’t do that, and it wasn’t an oversight. They in fact have a policy not to do that. And here they kept the cell phones without approval for six years without analysing them. And they did that despite the fact they were told by senior Crown, you can’t do that. You must get approval to keep these things. They didn’t like that advice and they ignored it. Eventually, after six years and with no approval to keep all these phones that they’d seized, they examined them. And lo and behold, on one of the phones there is an audio of the murder.
Adam Stirling [00:04:42] Wow.
Michael T. Mulligan [00:04:43] So that’s the case that goes in front of the trial judge. And there are a number of challenges raised to what went on here. One of the first challenges was there was a was that they didn’t have authority to take all these things and the judge found that they didn’t. The search warrant specified they could seize the phone of the suspect. Right. So, they could look at it to figure out if there’s, you know, data that might show he was in the area, whatever it might be.
Adam Stirling [00:05:12] hmmm.
Michael T. Mulligan [00:05:12] But the warrant didn’t authorise them to just seize everyone’s phone. Right. And the officer who testified said there’s no way to know whose phone is whose, which the judge didn’t believe for a moment. You can imagine all kinds of reasonable things you could do to figure out whose phone is that?
Adam Stirling [00:05:27] Yeah.
Michael T. Mulligan [00:05:28] Particularly when you’re in a home with five other people, you know, with five people. And they didn’t do that. So, the judge found, first of all, that was unconstitutional and not permitted. But then on the, not getting approval, as is clearly required, to keep these things, and wilfully refusing to do that despite being told clearly that they are required to do it, was viewed by the trial judge as very curious and in a criminal case, where there is a breach of someone’s rights, like, you know, Steve’s constitutional right to be, freedom free from unreasonable search and seizure, for example, right. When the police breach somebody’s rights, it’s not automatic that evidence that you get will be excluded. In Canada, there is a weighing under section 24(2) and a judge has to consider should the evidence be allowed in the trial, despite some unconstitutional conduct by the police. And when a judge is doing that, they need to weigh up things, including like how serious was the breach? Was this just some slip up? Or somebody got the wrote down the wrong address or something, right. Or is this serious conduct like here where the judge and now the Court of Appeal have upheld the decision, but this was a flagrant, willful knowing breach. It’s, and that’s like the conduct of the Crown eventually agreed That was so. And the judge found that when you have what was described as egregious institutional, systemic disregard for a legal requirement, despite being told clearly by more than one senior crown, you got to get approval to keep this, because wilfully deciding we’re not doing that, made what went on here particularly serious. And the judge says, look, you just cannot countenance that kind of wilful refusal to do what is legally required. And ultimately, the decision about whether evidence should be admitted turns on whether allowing the evidence to be used would sort of undermine faith in the justice system. That sort of concept there. Right. And when you have sort of serious, wilful, breaches like this, not just some mistake, but repeated serious problems that are institutional, you’re told to do it. And he just refused. The judge found that despite how serious the case was, the evidence just couldn’t be used. You just can’t countenance the police just wilfully ignoring what they’re clearly legally required to do. And so, the result of that is that the evidence found on the cell phone was not admissible. And the man was acquitted. And the Crown is appealing that, but as the Crown agreed on the appeal you know, this was because the Crown said they conceded the police engaged in flagrant, deliberate, and egregious, breaches of what’s required of them. And the result of that is that there was no remedy for the Court of Appeal by the from the Court of Appeal either. And so, despite having an audio recording of the murder on one of these phones, because of how the police decided to deal with that and keep them, the result is there will be no trial on the merits, and the man has not been convicted. So that’s the latest from a court of appeal on why the police just need to follow the legal requirements if they want to keep and, and eventually be able to use evidence.
Adam Stirling [00:09:09] Michael Mulligan with Mulligan Defence lawyers. Legally Speaking we’ll continue right after this.
COMMERCIAL [00:09:17] Adam Stirling on CFAX 1070 and streaming on the iHeartRadio app.
Adam Stirling [00:09:22] All right, we’re back on the air here at CFAX 1070 Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, next up on the agenda I see here a First Nation, an appeal regarding a hydro dam removed on the basis that it’s a legal nuisance. What happened here?
Michael T. Mulligan [00:09:41] Well, this is a significant case out of the Court of Appeal was just released. And this and other litigation in this area is going to have a real potential impact for things in British Columbia, including how energy is generated. Right. In B.C., we’re pretty fortunate in that most of our electrical energy is generated by hydro dams and the hope is that over time, there’ll be more of that. But we have a long way to go. When I last looked it up, the, in B.C., 16% of our energy is generated is electricity, right? The rest is made up largely of petroleum products and natural gas.
Adam Stirling [00:10:22] Yeah.
Michael T. Mulligan [00:10:22] And so the hope is that we would be able to increase the amount of electricity we’re using, a decrease in how much the gas and natural gas we’re using. But we’ve got a long way to go. We’re at 16%. And the rest are things that are rather more polluting. And so that brings us to this. In this particular piece of litigation, involves the Kennedy Dam, and that’s a dam that’s on the, the Chaco River. And it was built in the 1950s. It was built by Alcan to provide power for aluminium smelting. And the power is now used for both that and general public use. Right. It’s also some of it goes for that. And to give an idea of the scale of that dam, the Kennedy Dam produces 890megawatts, right. The site C dam, when it’s complete, will produce 1100 megawatts. So almost as big as the Site C Dam. That’s of a total in BC of some 18,000 and change megawatts. So, it’s a pretty big deal, I guess.
Adam Stirling [00:11:22] Okay.
Michael T. Mulligan [00:11:24] And the legal case, was brought by, Indigenous or First Nations in the area, and it was brought interestingly, on the basis of a claim of nuisance. And what is that? Well, there is as a matter of, there’s a common law tort, of nuisance. Right. And a nuisance is, you know, to do something which is going to seriously interfere with somebody’s property rights. You could have a legal claim of nuisance.
[00:11:56] Interesting.
[00:11:57] You know, let’s say, let’s say somebody set up, you know, a pig farm next to your house, or something so you couldn’t breathe the stink coming off it. You might have a clean, a nuisance. Say, hey, I can’t live in my house. It’s just an overwhelming stink. Something like that. Right? So that’s what a nuisance is. And here the claim made by the First Nations. And so, you said, look, this dam blocks and restricts the amount of water flowing down the river, and it’s flooded an area for its reservoir.
Adam Stirling [00:12:28] mm hmm.
Michael T. Mulligan [00:12:29] And their claim was, look, we have an, first we have a, indigenous right to fish. And the restriction on water caused by this dam reduces the amount of fish available to us. Therefore, you’re creating a nuisance. Just like somebody who sets up something stinky or wild, next to your your house. And as a matter of tort law, nuisance is pretty broad, right? It’s interfering with or disturbing a person’s exercise or enjoyment or arc of land that the owner occupied. So, okay, there it is. It’s a creative, claim, and the defence raised, by the aluminium company and ultimately the province of British Columbia and the federal government, was a defence of statutory authority. And this is how that works with a nuisance claim. The basic idea is that if you are authorized to do something by statute, and this was that there was statutory authority to build the dam, as you would sort of expect. You can’t just go build a, you know, aluminium company, can’t just go build a dam somewhere. So, there was legal authority to build it. And there’s a concept that when you do something that you’re statutorily permitted to do, things which are necessarily flowing from that can’t be the basis for a nuisance claim. Okay. And so that’s the defence raised by the company that built the dam and by the province and the federal government. And there’s an interesting case that actually comes out of Victoria, from back in 1999, which provides some legal meaning to well what is that. That defence that you might have the defence of statutory authority. And it came out of the fact pattern in Victoria, where a person on a motorcycle, got their wheels stuck in one of the railway lines that used to run through, across the road.
Adam Stirling [00:14:32] hmm.
Michael T. Mulligan [00:14:32] You remember those who used to have those downtowns.
Adam Stirling [00:14:34] yeah.
Michael T. Mulligan [00:14:34] Where they bought the bridge going over towards Capital Iron. I think that’s where this happened.
Adam Stirling [00:14:38] Okay.
Michael T. Mulligan [00:14:39] And so the person’s wheel got stuck in the rail track and the railway, their decisions were statutory authority. We have statutory authority to put these rails in here. And in fact, there are regulations that specify how wide the flangeway needs to be. And there was a range of permitted signs. So, they said, hey, we’re just doing what we are statutorily authorised to do. You can’t then successfully sue us, claiming that we created a nuisance that your motorcycle got stuck in when we were doing what was statutorily, statutorily authorised to do to put those railways in. That case that Victoria one got all the way to the Supreme Court of Canada and the Supreme Court of Canada said. Yes, this isn’t a fence. But it should be. It should be viewed relatively narrowly on the idea that the activity you’re saying is protected by the statutory authority has to be an inevitable result of what you’re statutorily permitted to do. Right. So as a statutory authority, you could build that dam if inevitably there’s going to be a nuisance created by yeah there’s a big wall of concrete there. There’s water backed up. There’s less going down. That’s kind of the nature of a dam. That it can amount to a defence. The problem for the railway company, in that case, out of Victoria, was that the railway made a decision to exceed the minimum flangeway size by more than one inch. They made the gap bigger than they had to.
Adam Stirling [00:16:12] hmm.
Michael T. Mulligan [00:16:12] And so ultimately, they weren’t able to rely upon that defence. And so that sort of that’s the sort of heart of the legal framework that was, first of all, dealt with that this massive trial that went on for more than 150 days. And now this appeal and on that point, the First Nations lost, at trial, and on appeal, indeed, the Court of Appeal upheld the trial judge’s decision. So, yep this was, protected by this defence of statutory authority, basically to build the dam. The dam necessarily is causing the nuisance. And so, you cannot successfully sue them on that basis. What the Court of Appeal did do, however, is that they expanded the language of some declaratory relief that the judge provided and declaratory relief and sort of like that. These things I said I do declare something, if not an order, to do something. It’s sort of a statement of, you know, what the law is to sort of direct people in the future in terms of how they should be conducted themselves. And the Court of Appeal sort of expanded on what the judge set said by saying that the fiduciary duty owed by the provincial and federal governments, creates an obligation on them to try to minimize the impact, on, in this case, on the right to fish on that river, which is constitutionally protected. And so that’s going to create a basis, for there to be likely further negotiations about either should they get some money for the reduced fish in the river because of the dam or for example, the other thing discussed was, should there be some change in terms of how much water could be held behind the dam? Should they be a requirement that more be allowed to flow through, even if it’s not generating electricity? And so, largely that statutory defence was upheld. They’re not required to rip the dam down, nor is there going to be compensation ordered for the reduced fish resulting from the nuisance of the dam. But that’s there. And that’s going to, as I said, die likely further negotiations about this and may have an impact in the future about things like water storage and what about other dams. And all of that is just very important, Even what we talked about at the outset, in terms of electrical power and what the province was trying to do, in that regard, and it’s clear we’ve got, even as things stand, a potential overall shortage of electrical power because there’s, increased demand for it with heat pumps and electric cars and all the things that we’re trying to get people to start using so we don’t, pollute as much. Right. But that’s got to come from somewhere. And this is an example of just how some of those decisions, there’s just going to be conflict in terms of use. and this kind of thing was also at the heart of, I think we talked about previously, the provincial government, tried to introduce with, no notice to anyone or virtually no notice to anyone. Changes to the Land Act.
Adam Stirling [00:19:32] Yeah.
Michael T. Mulligan [00:19:32] Provided that it passed potential, for additional sort of veto authority for First Nations over the use of Crown land because of the pushback they got over, I think how they tried to do that. Kind of slip it in on a website and give no press release and don’t tell anyone. They just announced the other week they are withdrawing that effort probably until after the election, because as you might imagine, there are some real conflicting interests here, right? There are legitimate interests about First Nations rights to land and right to fish. And on the other hand, you’ve got all sorts of interests in terms of things like climate change and decarbonization and to a significant extent, there’s just no way around it. They’re in conflict. And so, that is likely why that decision was made not to advance that piece of legislation at this time. Because both of those groups would, of course, be groups that the, the current government would hope to get support from. And you’re just not going to please everyone, right? If you stop, if you let water flow through and don’t build dams. So, there’s more fishing available for First Nations, then we’re going to be using more natural gas prices. If you want to stop that, there’s going to be an impact on it. There’s a tough there are tough decisions to be made, about that. And if we want to have any hope of meeting any of those hurdles, you know, the objectives, we always hear about what’s going to happen in 2030 or 2035 or 2040, whatever, year with a round number at the end of it. We need to have a very significant increase in the amount of electricity we generate. And so we have to have some hard discussions and make some difficult decisions about where’s that coming from? Because right now we’re sitting at 16%. And so, if we want to get up from there, it’s got to come from somewhere. And this is this case is an important one. It may will go to the Supreme Court of Canada, and this and others are going to be guiding lights in terms of what is and can be done. And how are we going to advance the ball on those two files? And how are we supposed to weigh those things up? And so that’s the case involving nuisance. That in its origin in part of legal origin in the motorcycle getting stuck in a train track in Victoria. So that’s the latest.
Adam Stirling [00:22:07] Michael Mulligan again with Mulligan Defence lawyers. We learn something new every week. It’s Legally Speaking on CFAX1070. Michael, thank you as always. Always a pleasure.
Michael T. Mulligan [00:22:15] Thank you so much. Have a great Day.
Adam Stirling [00:22:16] All right. You too. Until next week.
Automatically Transcribed on March 11, 2024 – MULLIGAN DEFENCE LAWYERS