Use of human reproductive material after death, procedural unfairness in transferring a transgender female inmate to a jail for men, and a note rather than a will

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The first topic on the show: Sperm, recovered from a man shortly after his death, pursuant to an interim court order, will not be provided to the man’s wife because the man had not provided his written consent before he died.

The Assisted Human Reproduction Act requires written consent for the “removal of human reproductive material” from a donor’s body, after death, for the purpose of creating an embryo.

In this case, the sperm had been collected and stored, pursuant to an emergency, after hours, court order in order to permit the case to be argued. The medical evidence was that the collection needed to occur within 36 hours of death. Not making the interim order would have prevented a meaningful, legal decision.

The evidence before the judge was that the husband had hoped to have more children, and siblings for the couple’s young daughter, but neither he, nor his wife, had contemplated this occurring prior to the sudden, and unexpected, death of the husband.

The second topic on the show: the transfer of a transgender, female, inmate to a jail for men was done in a procedurally unfair fashion and needs to be reconsidered.

The inmate did not argue that her transfer to the Surrey Pretrial Centre was unconstitutional, or in violation of the Human Rights Code. Instead, she argued that the decision was unreasonable, and made in a procedurally unfair way.

The judge, in this case, concluded that the way the decision was made and reconsidered, was procedurally unfair because the inmate was not given the reasons for the initial decision, and when she made a written request that it be reconsidered, nothing of what she said was dealt with in an unsuccessful, reconsideration decision.

As a result, B.C. Corrections will be required to reconsider the transfer decision, in light of what the inmate had to say.

Procedural fairness, in these circumstances, doesn’t dictate a particular outcome but does require an inmate to have notice of the decision, an opportunity to be heard, and to be given reasons for a transfer decision.

Finally, the case of a man who passed away without a will, but having left three, short, handwritten notes, is discussed.

Section 58 of the Wills Estates and Succession Act allows a judge to give testamentary effect to a document that was not properly executed as a will if satisfied that the document represents the testamentary intentions of the deceased.

Here, while only one of the notes was signed, there wasn’t any dispute that the deceased man had written them.

As the deceased man was never married and had no children, if the notes were not applied, his assets would have gone to the estate of his brother, who passed away 5 months after the man who wrote the notes.

Ultimately, the judge did give effect to the note that left money, in two bank accounts, to the man’s long-time girlfriend. The girlfriend was not well off, having worked as a chambermaid for many years before having to stop work in 2008 as a result of ill health.

While the man was not wealthy and was a long-term resident of a room at the Canadian Hotel on Seymour Street in Vancouver, it turned out that he had $272,042.35 in his bank accounts at the time of his death.


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An automated transcript of the show:


Legally Speaking Dec 12 2019

Adam Stirling [00:00:00] All right, it is time for Legally Speaking here on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers. Michael, good morning. How are you?

Michael T. Mulligan [00:00:06] I’m doing great. You know, another week goes by and we’ve got a cornucopia of interesting and challenging legal stories. It’s amazing just how many challenging legal issues arise each and every week.

Adam Stirling [00:00:20] You know, I was looking at these stories today and shaking my head thinking, is this real that this really happened? It did. Mr. and Mrs. T. referenced and what I’m looking at here. What exactly is this story here?

Michael T. Mulligan [00:00:32] Yeah, this is a legally very interesting case, which comes from a sad fact pattern. And it was a decision made by the B.C. Supreme Court just on December the 9th, just a few days ago. And the issue arose this way, there was a young couple who were married. They’d recently become parents to a daughter. And very sadly, the husband, father of the daughter passed away suddenly, and that wasn’t anticipated. He hadn’t done a will or expressed his desires after his death. But he had, while alive, clearly expressed a desire to his wife to have more children and to have a sibling for their young daughter and looking forward to being a parent. And so his wife, very shortly after her husband passed away, brought an emergency after hours, urgent application before a Supreme Court Judge, to ask that the semen from her, just deceased, husband be preserved so that she would be able to conceive a child after his death. The medical advice was that, that procedure should occur within 36 hours of death. And so, it was an emergency decision that had to be made. And the judge in this case on hearing that sort of after-hours application with limited submissions, given its urgency, made an interim order that that be done. The reproductive material be removed and be preserved, such that that would preserve the status quo. Because if the judge didn’t make that order, well, that’s it, they’re not going to be any more discussion about this. And so, the decision which just came out was the decision following that to determine, well what’s to happen with this. Should the wife be permitted to use the reproductive material that was saved following her husband’s death? And the challenge the wife had, even though nobody was really opposing this. Right. There was no other side showing up saying, no, no, you want not to permit this.

Adam Stirling [00:02:45] Yes.

Michael T. Mulligan [00:02:45] And in fact, the judge asked for lawyers from both the federal and provincial government to show up and make submissions. The federal government declined. The provincial government showed up and made some submissions, but they weren’t really opposed to this. There’s nobody there to oppose it. The issue surrounded an act called the Assisted Human Reproduction Act, which was a federal act in Canada that governs things, including, amazingly, this circumstance. And that act says this: No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent in accordance with the regulations to its removal for that purpose. Well, that’s a pretty big impediment to what the wife was hoping to do here.

Adam Stirling [00:03:40] Yes.

Michael T. Mulligan [00:03:41] Because this hadn’t been contemplated. They were a young couple. They hadn’t considered the possibility of this happening. And so, counsel for the wife did their best at making a submission surrounding the concept of what’s what the meaning of consent ought to be there. And referencing the fact that in a general way, the husband was interested in having more children. And they need reference to a case which in which there was a person who passed away, husband who passed away after having provided semen to a well, he was alive to be preserved so that it could later be used for the purpose of having children, but did not provide express written consent for its use, although he talked to everyone about it. It’s clear that’s why it was done. It’s the only reason that would be done. And well, that was a creative argument. The court said, well, no, unfortunately, this language is clear. That’s different because it’s not a matter of removing it after it was provided before. And so, then I thought the alternative argument was a creative one. The alternative argument made by the wife was that once the material had been removed. Pursuant to the court order, it, therefore, became the property and when it because the husband passed away and because she would be the beneficiary of all of his property upon his death, the argument was, well, that’s just another piece of property. So please give that to me along with the transfer for the car and the house. Right. So that was a creative approach to it. But unfortunately for her, it didn’t get traction. The judge’s reasoning was, look, this isn’t property in the ordinary way and it only exists because of this, after-hours emergency court order that was made. That doesn’t transform it into property and circumvent what is required by that federal legislation and that federal legislation here’s another interesting point.

Adam Stirling [00:05:46] mmhmm.

Michael T. Mulligan [00:05:46] That act that I made reference to the Assisted Human Reproductive Act, that federal act, was actually considered by the Supreme Court of Canada back in 2010. From the perspective of whether the federal government has authority, constitutional authority, to deal with those issues or whether there’s something which should be within the jurisdiction of the province and the Supreme Court of Canada upheld it and they upheld it as a valid exercise of parliament’s criminal law power. So that is the decision from the Supreme Court of Canada. We’ve got a valid, constitutionally permissible law that says written consent is required. If you don’t have that, you’re not going to be able to do what happened here. So, the takeaway story, our takeaway message is, put it in writing and don’t necessarily expect that the unexpected isn’t going to occur and you’re gonna go on forever. So, with modern technology and all of these things possible, I think it behooves people to think carefully about what their desires are and put it in writing. So that there can be so that I could occur if something unfortunate and unexpected does happen to you.

Adam Stirling [00:06:55] So this is over and done with the material that was preserved will be destroyed now or what generally happens?

Michael T. Mulligan [00:07:00] Well,.

Adam Stirling [00:07:00] Generally, a long term is very rare. So maybe there is no general expectation at this point.

Michael T. Mulligan [00:07:05] Yes. So, the judge terminated the order, which was the order that provided for its emergency preservation. But the judge did stay his order for a period of 30 days. And the order was stayed in case there is to be an appeal.

Adam Stirling [00:07:20] I was going to ask how long the material lasts and what happens if the appeals take longer than the material lasts.

Michael T. Mulligan [00:07:27] I think the impression left by this case is that the material can last a very long time once it’s been retrieved and frozen. So, it would be kept in a frozen state. And it’s my understanding from the case it could last years. But in this particular case, unless there’s an appeal from the December 9th decision within 30 days, there’s no longer going to be any authority to keep the material. It’s not her property and it would otherwise be destroyed.

Adam Stirling [00:07:55] Interesting. I’ll follow that one with great interest. Our second story here involves the transfer of a transgender female inmate to a male institution and whether or not procedural fairness was upheld. Set this up for us.

Michael T. Mulligan [00:08:09] Yeah, this is a threat of another example of sort of the challenging issues that have to be dealt with, given the history of modern realities and sensitivities to these things. The background here is that the inmate in question and this is the first part I must say, which isn’t addressed in the decision and in fact, the court comments on it, the particular inmate in question has been incarcerated since 2014 on an extradition warrant, and there was no suggestion as to when the proceedings will conclude. So, this person has been sitting in provincial jails of various sorts since 2014, waiting for an extradition issue to be sorted out. So, my first concern reading this thing was, holy smokes, that’s a very, very long time to be sitting in jail waiting for that decision to be made. But here’s what arose. So, the particular inmate, Miss Patterson, she had been in custody for some time and about 10 months after she’d been in custody, she informed B.C. Corrections that she identified as female. As a result of that, she was transferred to the Alouette Correctional Center for Women. Previously, she’d been at the Surrey Pretrial Services Center, which would be an institution for men. And so she was transferred there, but a short time after she was transferred, a little less than a year, she was transferred in 2018 and then in August of 2019, there was a, and this isn’t well described, but it’s something described as a violent incident occurred and she was restrained and transferred without notice back to the Correctional Center for Men. And she immediately filed a notice to appeal that decision. Right. Now, the…her appeal was denied. And that’s how the matter wound up in court to be decided. Now. the court application, the judge points this out: she did not make an application under the charter or under the Human Rights Code, arguing about these sort of the big issue about, look, is it appropriate to have a female transgendered female prisoner put in a male institution? That’s a big question that isn’t addressed here. This was being addressed on administrative law grounds. And the arguments made were, first of all, the decision was not reasonable, and the second argument she made, was the way the decision occurred was not procedurally fair. And both of those things are things that can be reviewed on a judicial review. The reasonableness threshold is a fairly high one. Right. You’d have to show that the decision that was made sort of no, it’s not reasonable.

Adam Stirling [00:10:53] Ya.

Michael T. Mulligan [00:10:53] It’s a pretty high threshold.

Adam Stirling [00:10:55] Ya.

Michael T. Mulligan [00:10:55] And there’s some deference there for the decision-maker. But the other argument that the decision was made in a procedurally unfair fashion is one which, if it’s not procedurally fair, presumptively it’ll have to be reconsidered. And the Supreme Court of Canada has made clear that there are requirements for procedural fairness when there are decisions made about transferring inmates from one institution to another. Now, the Supreme Court of Canada has acknowledged that there could be some circumstances where sort of an immediate on the spot decision is to be made where you don’t have the right to procedural fairness. Look, there’s an emergency, you’ve got to go over here, get it your cell. But when it’s not that and here after the immediate sort of violent incident was dealt with, there are some obligations. And the procedural fairness obligations include these things. Notice to the inmate, we’re going to do this. Giving them an opportunity to be heard. So, what do you have to say about it? And then giving reasons for how you’ve decided the case. Here, the problems included. They didn’t give her the reasons for the initial transfer, such that she could respond to them in a full some way. When she responded to reasons when she was eventually told about them, she responded dealing with some of the substantive factual underpinnings and the final decision didn’t address what she had to say at all. It’s as if they were ships passing in the night.

Adam Stirling [00:12:20] Yes.

Michael T. Mulligan [00:12:20] And so the judge, in this case, concluded that even though she wasn’t making the argument, dealing with the constitutionality of this or whether it interfered with her human rights code obligations on the procedural fairness argument alone, because the decision of the institution just didn’t contemplate what she had to say in response to it, because there was a factual disagreement, that the judge was not satisfied that her objection to it was considered at all. And therefore, the judge has ordered that they try again in accordance with procedural fairness and go back and reconsider the decision. Bearing in mind, what she’s had to say about it, and we’ll see what the outcome is, whether she is transferred back or whether there are further arguments about those bigger issues. I should note in the local context, there is an issue about how male and female prisoners are dealt with in Victoria.

Adam Stirling [00:13:21] Yes.

Michael T. Mulligan [00:13:21] Because in Victoria we have Wilkinson Road Jail, which is our remand facility. And a few years ago, they started doing renovations on it to create a wing for women. And the renovations, as I understand it, were essentially complete, but it was never used in that way. And so, what happens is that female prisoners are shipped every day over to the mainland and back. And it can mean that female prisoners wind up like spending nights sitting in city cells where there’s no way to get outside, there are no shower facilities. So female prisoners are treated in a less favourable way than male prisoners who at least are able to go back to Wilkinson Road if they’re, you know, engaged in trial or this sort of thing, whereas female prisoners can be either transported back and forth to Vancouver, which is not pleasant. And I must say expensive. You have to send Sherriff back and forth to do that. And furthermore, if they’re not transported every day, they wind up spending time in cells, which is again, not ideal.

Adam Stirling [00:14:26] Let’s take a break here at FAX 1070, legally speaking with Michael Mulligan continues after this Legally Speaking continues with Michael Mulligan from Mulligan Defence Lawyers. Earlier in the conversation, Michael, we talked about the complications that can arise from trying to guess the intentions of a person after that person dies in absence of some sort of will or executed legal instrument to convey those to a court. What’s this next story about?

Michael T. Mulligan [00:14:51] Well, this is an example of the importance of writing it down. I guess that’s a common theme along with the first story. So, this one, I actually think has a happy ending. Ultimately, and this was a case that was decided just a few days ago in B.C. and it arose out of a fellow who was living in a single room occupancy hotel in downtown Vancouver. And the description by the judge is that this fellow was not wealthy and then indicated it is common ground, that he was not sophisticated. But he… when he passed away, there were there was no will. There were, however, three notes that he had left behind on three separate pieces of paper. And the fellow when he passed away, he had he was never married, he was a lifetime bachelor, he had no children. He did have three other siblings; however, only one of those siblings was alive at the time he passed away. And then just a very few months after this fellow passed away, his brother passed away. Who would have otherwise inherited all of his property? But for the import of the note or notes that he had left behind because when somebody dies without a will, there is a process that would determine who the, who would receive that person’s assets under the Wills Estate Secession Act. It’s going to go to somebody’s spouse if there is one, or children if there are any, and feeling that you can go down the line to eventually siblings and so on, so forth.

Adam Stirling [00:16:35] What there’s nobody.

Michael T. Mulligan [00:16:36] Well, the government happily fills in..

Adam Stirling [00:16:37] Alright, Okay.

Michael T. Mulligan [00:16:40] ….

Adam Stirling [00:16:40] Makes sense.

Michael T. Mulligan [00:16:40] Yeah, they wrote it. So, there we are. Now, the issue here became this one of the unsigned notes that this fellow left behind indicated a few things. It had written it said pay off cremation and other expenses, debts, which I do not carry. I do not own any property. Total money is left over, I wish to be awarded to Ms. Chow, bank equals Nova Scotia. Not signed. No date. Now, what do you do with this?

[00:17:13] Bank equals Nova Scotia..

[00:17:13] Banking of Nova Scotia.

[00:17:13] Scotia, now there is an …one of Canada’s five chartered banks, the Bank of Nova Scotia. Could we make that leap?

Michael T. Mulligan [00:17:18] you might make that leap, Now, here’s the thing for the judge, right? We’ve got that Wills Estates and Succession Act. And it says this: A judge can give testamentary effect to a document that was not properly executed (this note) as if it was a will if satisfied that the document represents the testamentary intentions of the deceased. So, the first question for the judge is: well, was this something this fellow wrote out? It’s not signed. There’s no witness to it. And on that point, there wasn’t any contention. So, you have to sort out. Well, what was the intention of this and who’s Ms. Chow? What’s going on here anyway? This is the nice story. Turned out that Ms. Chow had been this fellow’s girlfriend for many years. They had met when she had worked cleaning other hotel rooms for a company associated with the one he lived in. They had become boyfriend and girlfriend. She was required to stop working due to ill health, back in 2008 and the fellow had sort of helped her out from time to time with expenses for things. So, it looked like we genuinely wanted to help her. One of the interesting things in that note I should mention is that it’s a little bit contradictory because it begins. With I do not.. or will include I do not own any property, and then it turns out that this fellow had $2720,00.42 in two bank accounts.

Adam Stirling [00:18:45] And he was living in an SRO in Vancouver.

Michael T. Mulligan [00:18:48] That’s right.

Adam Stirling [00:18:49] Huh, that’s not expected.

Michael T. Mulligan [00:18:51] Well, no, but, you know, it’s common ground that he was not sophisticated. So.

Adam Stirling [00:18:55] Fair enough.

Michael T. Mulligan [00:18:55] And he did, in fact, have some property and he had that money. So, this case was a case as between Ms. Chow coming in saying, well, hold on, he’s got this note saying that you know, his intention was to leave that money for me and then the beneficiaries of the deceased brother. Right. Saying, well, no, no, that’s not a will. This is not signed. The bottom of the piece of paper had been cut off. The judge said, well, it’s impossible to know what else was written down there. And so, the judge said, well, it’s quite reasonable for these two parties to come and have me determine this. The other notes, by the way, one was a note that one the judge described as the moneys note. He’d also left other notes, including when he entitled Executor, where he said Ms. Chao may do whatever she wishes with my personal property, clothing, ect. That one, the judge, interestingly, said, was not a testamentary document, because the concept of an executor doesn’t mean that the executor gets the things they’re just obliged to take the things and distribute them to the people who would be the beneficiaries. So, when writing on a piece of paper executor and then saying this child may do whatever she wishes with, it isn’t a clear expression that he wishes her to have his personal possessions. But the document that the judge described as the moneys note in the judge’s view did amount to a clear expression. There wasn’t any issue about whether he wrote it. And the judge concluded that the language used there, while a little bit contradictory, was a clear expression of his desire in terms of how the money in the bank account should be dealt with. The postscript is this. This is, I suppose, another reason why you’d be well advised to have a proper will. Yes. Is that this litigation? This case was brought on, of course, by this reasonable disagreement about what do we do with these things and what meaning, if any, do we give to these undated notes found in this fellow’s room. And at the end of the day, the lawyers who represented both Ms. Chao and the beneficiaries of the brother of the deceased, they both applied to have their costs paid out of the estate.

Adam Stirling [00:21:19] Okay.

Michael T. Mulligan [00:21:19] And the judge concluded, yes, that’s an appropriate thing to do. And there’s a test for that and that part of the analysis is that, look, this uncertainty, and it was genuine uncertainty, was caused by the deceased and how they left their affairs. It’s reasonable for both of these people to come and say you have to sort out this problem. And so, at the end of the day, while, it looks like his wishes are largely going to be carried out and that his longtime girlfriend will get the benefit of the money in the account. Some of the money will have been used to pay to conduct this legal escapade to sort out what affect, if any, ought to be given to the note. So, had he drafted up by even simple, proper will, all of that would have been avoided and there would have been some certainty as to what about the possessions in the hotel room? So once again, like with the first story, put it in writing,.

Adam Stirling [00:22:18] Get a will.

Michael T. Mulligan [00:22:19] Get a will.

Adam Stirling [00:22:19] Smart thing to do. Thank you very much. Michael Mulligan, pleasure as always. Every Thursday here on CFAX 1070 during the second half of our second hour.

Automatically Transcribed on December 12, 2019 – MULLIGAN DEFENCE LAWYERS