Unpacking Tragedy and Justice: Manslaughter Sentencing & Wrongful Dismissal Insights
What happens when a tragic act of violence intersects with mental illness and substance abuse? Join us on Legally Speaking as we unpack the heart-wrenching case of a 25-year-old Indigenous man in Trail, BC, who fatally attacked a 78-year-old stranger. This episode challenges the simplistic narrative of violent acts as mere bail system failures. We scrutinize the court’s decision to convict the man of manslaughter instead of murder, shedding light on the significant role his mental state and drug-induced delusions played. Through this lens, we explore the deeper societal and systemic issues that contribute to such incidents, advocating for a more nuanced understanding and approach.
In another compelling segment, we dissect a wrongful dismissal case involving a 31-year-old software developer, highlighting the complexities of employment contracts and the critical role of consideration. Discover how an initial detailed email outlining job specifics was upheld over a subsequent, less substantial letter, resulting in a favourable court ruling for the employee. This discussion underscores the importance of clear and fair employment terms and why understanding the intricacies of employment law can make or break your case. Whether you’re an employer, employee, or simply curious about the legal world, this episode is packed with insights that resonate beyond the courtroom.
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 July 4, 2024
Adam Stirling [00:00:00] It’s time for Legally Speaking. Joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Hey. Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:10] Some fascinating stories on the agenda today, including a sentencing with respect to a random stranger attack. What can you tell us?
Michael T. Mulligan [00:00:18] Well, a few things about it. First of all, we can all feel, I guess, a sense of camaraderie when Victoria is not the only place dealing with these issues that they extend to smaller communities in British Columbia. This particular tragic case is from Trail BC. So a small community in the south, southeast. And the fact pattern is a terrible one. The accused in this case, and it’s a sentencing decision, I should say, for a manslaughter conviction. So it’s a random stranger attack that led to a death. And the, man who died was, described as a 78 year old man in ill health who was quietly living his life battling against physical and mental disabilities, who was crossing the road, when he was attacked by a 25 year old man, indigenous man, who the judge described as having to that point, “as having essentially led a wasted life” to that date, as a result of mental illness aggravated by chronic drug abuse.
Adam Stirling [00:01:30] hmm.
Michael T. Mulligan [00:01:30] And he had a history of violent outbursts flowing from those things, and the, background of it was that that, young man, the 25-year-old had suffered from a number of things, which we’ll get to in a moment. But on that particular morning, as a result of mental illness and drug use, he was suffering from auditory delusions. He went to his father’s home. He knew the father wasn’t home and lit it ablaze, burning it down.
Adam Stirling [00:02:04] Wow.
Michael T. Mulligan [00:02:04] He left the house. He then wandered through the town across a crosswalk. And he, at that point, heard voices in his head. And the judge accepted, accepted this to be so, telling him that this random 78-year-old man had sexually exploited his daughter, which was untrue, completely delusional. And the 25-year-old, mentally ill, drug addicted man, brutally attacked the 78-year-old and, eventually stomped on him and kicked him. He was wearing heavy boots. And a month later, it led to the 78-year-old passing away. So that was the fact pattern. Prior to the 78-year-old passing away, the 25-year-old pled guilty to the arson, and he was sentenced to three years in prison for that. He was charged with murder with respect to the 78 year old, and that matter went to trial and interestingly, went to trial, by judge alone, which is rare, because in a murder charge, you are required to have a jury trial unless both the Crown and the defence agree, that a judge can hear the case. So this was a circumstance where they both agreed, and so that’s how the case preceded the issue in the murder case was whether the 25-year-old accused formed the required, intent to kill the 78-year-old man. Right. Murder is intentionally killing somebody.
Adam Stirling [00:03:34] Yes.
Michael T. Mulligan [00:03:35] And on that point, the judge had a doubt that, that had been proven and so convicted the man of manslaughter. Now, one thing that, keen listeners might ask themselves is, well look if what was going on here is this person is mentally ill, and he was hearing voices and, you know, believe that this man had sexually exploited his daughter. Why wasn’t the man found to be not criminally responsible as a result of a mental disorder? The reason for that is that particular finding and there’s another case if we get to it this morning, we’ll talk about that involves somebody who was found to be not criminally responsible as a result of a mental disorder. That finding is premised on the idea that the person suffered from it, what the law refers to as a disease of the mind, something sort of internal to them, with the idea that, you know, we’re not going to in the usual criminal way, punish somebody who, you know, just doesn’t know what’s going on. Right.
Adam Stirling [00:04:32] Yep.
Michael T. Mulligan [00:04:32] They think they’re saving themselves from a dragon when they’re hitting the person on the road. We put those people in a secure facility and treat them for their mental disorder rather than into a prison cell.
Adam Stirling [00:04:42] Yes.
Michael T. Mulligan [00:04:42] but the complicating factor here would be one of the proximate things would be Azari, probably connected to the serious mental illness which this man had suffered from since like 12 years old. So he was also heavily addicted to drugs. And so you don’t get to an NCRMD finding the sort of proximate cause of what you did was, you know, self-induced intoxication by drugs. We do convict people who send them to prison when that is what caused you to, for example, have auditory delusions that a random person has, you know, assaulted your daughter.
Adam Stirling [00:05:17] hmm.
Michael T. Mulligan [00:05:17] And so that that would be why that would not fit in, why this is a sentencing case that a conviction. The thing about the case, one of the things I think notable about the case, amongst others, is it is a picture of what is at the root of these legitimate, serious problems that we’re facing, not only in Victoria but around the province. And you know sometimes, in my view, they have wrongly identified the problem here as being some issue with our bail system.
Adam Stirling [00:05:49] hmm.
Michael T. Mulligan [00:05:50] In my judgement, this case is an example of what is genuinely at the root of many of these things. Because you don’t generally have people who are sober and mentally sound, randomly attracting, attacking elderly people as they cross the road.
Adam Stirling [00:06:06] No.
Michael T. Mulligan [00:06:06] Right. That’s just not how people usually behave. And then reading this case, the sentencing decision, it paints a picture which, I think fairly comes to the conclusion the judge reached, which was this 25-year-old had essentially little wasted life. But why that happened, and what happened here probably shouldn’t have been much of a surprise. When you look at what happened, the man was Indigenous.
Adam Stirling [00:06:34] hmm.
Michael T. Mulligan [00:06:34] His, mother was described as, somebody who was an abusive alcoholic. Her family had, suffered through the 60s Scoop, which had a big impact on lots of, Indigenous people. And so his parents separated. He lived with the abusive, alcoholic mother for a short period of time, then returned to Trail to live with his father at the age of 11 or 12, where, according to the judge and judicial language, he “received little parental direction” and quickly found his life deteriorating but didn’t finish school. Wound up a drug use, diagnosed with bipolar disorder. And then, wound up being diagnosed with various other mental illnesses and an addiction to OxyContin. And so that’s what this young man’s life turned into. And so he then proceeded on a pattern of committing various offences, including other violent acts. But he’s just living on the street. He’s described as, you know, wandering the streets of Trail. And he’s in this, you know, combination of mentally ill, drug induced state, when he engages in this behaviour. He had also been treated for a head injury. No doubt that contributed to it. But this is what we have when you have people who, you know, we close down many of the facilities where people who were mentally ill would have received custodial treatment, and we closed them with the promise that we were going to provide care in the community because that was more humane. We didn’t. And so you have people like this young man and like we have in Victoria and Vancouver and all over the province who are living wasted lives, and who are wandering about and from time to time, some combination of that, plus the drug use results and what this judge described as, you know, this person clearly not operating within the bounds of rational thought. And I thought this really summed it up. The judge said, look, given his upbringing, it might be said it was practically preordained that his life would culminate in this kind of an event.
Adam Stirling [00:08:46] hmm.
Michael T. Mulligan [00:08:46] And it did, and it the judge described it as a horrific, cowardly, senseless act of violence but perpetrated by somebody that I described. Right.
Adam Stirling [00:08:55] Yeah.
Michael T. Mulligan [00:08:55] Which leads you to what do you do with this. Well, one of the complicating factors here the judge had to deal with was that the man had already served his three-year sentence for the arson when he pled guilty to it. And then what happened is the 78-year-old passed away and he got charged with murder. And so then the judge had to determine what is the appropriate sentence, bearing in mind the combination of a horrific, random attack on this person that took his life. And how do you square that up with somebody who has the sort of background and upbringing that I’ve indicated. Right. Which, of course, is a consideration in terms of what is the degree of moral culpability weighed against what do we do to just protect ourselves? And clearly, what would help to protect us would be to provide appropriate treatment so that you don’t have people who are like this man status, wandering around under the influence of drugs and who are profoundly mentally ill, receiving not what they need. And so the judge had to deal with the issue. There’s this, one of the concepts in sentencing is sort of a concept of a principle of totality.
Adam Stirling [00:09:59] hmm.
Michael T. Mulligan [00:09:59] Like when somebody is convicted of more than one thing. You know, what is the total sentence the person should receive, right.
Adam Stirling [00:10:07] Yeah.
Michael T. Mulligan [00:10:07] And is that appropriate? So here you have this three-year sentence for the, the arson burning down his father’s home after his hearing voices telling him to do that as well. And then this. And so the judge taking all of that into account concluded that an additional six and a half year sentence added to the three year sentence, which he’d already served, was the appropriate sentence, bearing in mind, you know, there’s a sort of a range of sentences for manslaughter that would ordinarily be between, 4 and 15 years in British Columbia, depending on things like person’s background and degree of moral culpability and so on. And even though this was, as the judge described, horrific, cowardly, and senseless and led to death, which I suppose all manslaughter is do. The conclusion was that, an additional six and a half years, for this, with some credit for time in custody, because after he served his three year sentence for the, arson, he was still waiting in jail for this trial. And so that’s what we’ve done. That’s the outcome of that case. And so we should certainly feel a little less alone. But, until we do something, to address those underlying issues these things will occur. Because, you know, you need to do nothing more than walk around, walk out Pandora in Victoria or an equivalent street, virtually anywhere else in the province. And when you see, you have hundreds of people who are living in the street obviously it’s obvious from looking at them you hardly need a medical diagnosis to realize you’ve got people who are just profoundly impaired. You know, they’re laying on the sidewalk and hunched over and you know, many of those, all of those, almost all of those people are going to have some combination of mental illness and drug addiction. And, if we don’t solve that we are not going to solve it with some change to bail provision. So that’s, I think, just a complete, complete miss. And if we don’t sort it out, we are going to continue to have people like this man who will from…virtually, you know, hard to predict fashion, wind up doing something like this is horrific. And so, I thought that was just worth sharing. It probably couldn’t be a clearer example of the sort of background that leads to that activity and what we genuinely need to address if we don’t want to live in a province where this sort of thing happens, from time to time. And if we don’t do something to solve those underlying issues, you know, as the judge found in this case, some of these things are going to be practically preordained. And, that is what we need to do and I hope we would get focus on that, because at the moment, it appears to be, our efforts to stop these things, at least in my judgement, are perhaps not focused in quite the right place if we want to avoid further random, horrific, cowardly, acts of violence, it’s pretty clear what we need to be doing, and we’re not doing it. So that’s the latest, from Trail.
Adam Stirling [00:13:14] Michael Mulligan, Mulligan Defence Lawyers. Legally Speaking. We’ll continue right after this.
[00:13:18] COMMERCIAL.
[00:13:18] Legally Speaking continuing here on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers. Michael, our next story that’s on the agenda. A Wrongful dismissal claim. It says here an oral contract complete. So the day after a written employment contract that says not enforceable. What’s going on?
Michael T. Mulligan [00:13:36] Yeah. So this is a wrongful dismissal case. We’ve spoken about those before. The idea there is that, by default at common law, if you are fired without cause, you would be presumed to be due, either notice you’re going to be fired, or pay in lieu of notice. Or if the employer doesn’t want to give you, actual notice that you’re going to be let go. And this had an interesting twist in it that people I think should be aware of too, interesting twists. One, this claim was brought in Supreme Court, and, on that front, it should be noted that you could bring anything for any amount of money in B.C. Supreme Court. There’s no limit. If you’re suing somebody for a smaller amount of money, you could do so either in the Civil Resolution Tribunal, up to $5,000 or up to $35,000 in Provincial Small Claims Court. This claim was brought in Supreme Court relevance will become clear later. The person in this case was 31 years of age, or she was 31 at the relevant time period when she was hired. She was hired to be a developer of an operator of a software platform, that enabled entrepreneurs to create, market and sell online courses. So that’s what the job was. She, here’s the interesting thing that was a contractual issue people should know about. One of the concepts with contracts is the idea of consideration. The law doesn’t enforce bare promises, like, if I just walk up to you and say, hey, Adam, I am going to give you a new car for your birthday, you say, great.
Adam Stirling [00:15:09] Right on. Yeah.
Michael T. Mulligan [00:15:10] Right on a new car. I always wanted a new car, and I don’t deliver on that. You might be unhappy with me, but you can’t sue me for just promising you a present. But on the other hand, I contract has consideration. And so if I say to you, hey, you know, it’s your birthday, I want to help you out. I’ve got this car it’s worth $50,000 if you’ll give me, if you’ll agree to pay me $1,000, for the taxes or something, I’ll give it to you. And we have okay great, now that’s a contract, because we’ve each promised one another something, not just a present. Now, here in an employment law kind of context, you had this person who, spoke about this job in an interview, and then, in fact, the employer sent her a detailed email following up on that, which was some 60 pages long and had various things listing her compensation, stock options, health benefits, computer hardware bonuses, all this sort of stuff, parental leave information, vacation schedules, work details, everything. And she responded to that as well saying great, I accept. And then at 5 p.m. the same day, the employer sent a letter, which was entitled Protection of Corporate Interests. And it laid out a whole bunch of things which would not as happy and things as like stock options and, you know, parental leave programs. It was a five-page letter saying various things like, you know you get less notice if you’re fired, and you can’t compete with us if you’re fired various other things. And she accepted that as well. Now, a couple of years later, she wound up being fired without notice or cause, and so she sued saying, hey, I didn’t get, the amount of notice that I should have been entitled to, the employer said, well, hold on, we sent you this letter at 5 p.m. about the Protection of Corporate Interests, and you signed off on that. That limits how much you should get. We don’t want to have to pay you more. Now, the issue is one of the central issues became. Well, was that second thing, a contract, or was the first discussion and then email with all these details, was that the contract? And here the judge found those first things, the discussion and then the detailed email with all of these particulars of the job, 60 pages of information and the person saying, yes, okay, great. That was the contract. And then things sent later on, like at 5 p.m., you know letter about protecting corporate interests, limiting things like notice if you’re fired. The judge concluded that wasn’t a contract at all. The contract was done. There was a contract already. That thing that came along at 5:00 was the equivalent of the promise to give you a car for your birthday.
Adam Stirling [00:17:57] hmm.
Michael T. Mulligan [00:17:57] And it could have been made enforceable if there was some consideration for it. Like if you at 5:00 said, here’s a, you know, letter about protection of corporate interests. If you agree to all this, we’ll agree to give you an extra anything dollar, you know, we’ll give you an extra day off something. Then there’s an agreement, a contract which is enforceable, but there wasn’t. And so the net result here is that that sent letter later. The letter sent later wasn’t a contract. The contract was done. And so she was entitled to pay in lieu of notice the judge found here, she’s entitled to effect five months of pay. And so the judge found, well, five months of would have been $41,000. Subtract from that the three weeks’ pay which she was paid $5,700 and then subtract, this is important mitigation earnings. One of the other concepts with wrongful dismissal is you need to try to get another job. You can’t just say, I’m just going to sit here on my couch and sue you. You got to try to get another job. And if you do, then what you get in your new job would be deducted from what you would get in terms of the pay in lieu of notice. You haven’t lost anything. And in fact, if you got just the equivalent job or let’s say, even a better job, you might be entitled to anything at all, right. Because you haven’t lost anything. You know, if your employer just comes in and capriciously says you’re fired and the next day you’re, you know, you’re walking along in somebody else’s, hey, I’ll hire you. In fact, I’ll pay you 20% more. You say, great, you’ve got a new job. You’re not entitled to anything from the last person because, well, you got a new job, and in fact, you’re being paid more, so you haven’t lost anything. So that’s got to be deducted. Now, the net result was the amount she should receive, according to the judge, was $31,647.44. That amount is less than $35,000, which is the threshold for small claims court. If you sue somebody in Supreme Court and you get less than what you could have gotten, if you’ve been to small claims court rather than Supreme Court, you are presumptively not entitled to receive, your costs in Supreme Court. There’s that concept of cost. You sue somebody, you succeed, they didn’t settle, and they should have. You’re going to get part of your legal fees paid, and vice versa, to encourage people to resolve things. We don’t do that in small claims court because in small claims courts, many people don’t have a lawyer. It’s supposed to be more informal. We just don’t do that. You can get some minor costs for like the expense of filing and, you know, serving the person the documents and so on. But it’s small potatoes. So here she won in the sense that she got the $31,000. But the judge said there was no good reason to bring this in Supreme Court. And so she didn’t get her costs. And so she was successful on that contractual argument. But, at the end of the day, she conducted a trial in Supreme Court, and she had an award of $31,000. And so, you know, whatever, you know, that amount would be minus whatever issues paid in terms of legal expenses, to pursue this thing. Because really, it should have occurred in small claims court. So interesting issues there both because of the issue of what is the contract, what’s required and how that played out, and that issue of where you are required and supposed to do someone.
Adam Stirling [00:21:08] Michael Mulligan with Mulligan Defence Lawyers, 60 seconds left.
Michael T. Mulligan [00:21:13] Final case. It’s another in here in case it’s an interesting one. It’s a woman who, suffered from mental disorder. She was repeatedly tried to apprehend or take other children, believing that the children were recognizing her to be her, their mother because of their glances at her. She was found to be not criminally responsible for doing that. Back in 2018, she’s been held in a secure mental health facility ever since then. She was applying to get out, denied, appealed that all the way to the Court of Appeal. And again, she was denied, on the basis that it’s just necessary to keep her in custody to protect prevent her from doing this to other children, given her lack of insight, violent ideations, and psychosis and so on. And it’s an example, I think, of how those findings those NCRMD findings are not some kind of a go free pass, for this person. She may well wind up in custody there indefinitely because the medical opinion is that she just cannot be made safe in public. She can, only her mental illness can only be managed in the confines of a strict custodial setting. And so in order to keep the public safe, which is the number one objective of the review board, she is likely to remain securely in a hospital indefinitely. And so it’s an example of how those findings of NCRMD do not translate into you’ve got a free pass or you’re getting old. If you’re somebody like this who remains a danger to children, you may or anyone, you may find yourself in custody potentially for the rest of your life. Thats the 60second last case.
Adam Stirling [00:22:49] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael. Pleasure, as always. Until next week.
Michael T. Mulligan [00:22:56] Thank you so much. Have a great day.
Adam Stirling [00:22:57] All right. Quick break. News is next.
Automatically Transcribed on July 10, 2024 – MULLIGAN DEFENCE LAWYERS