This week on Legally Speaking with Michael Mulligan:
Anti-vaccination protesters have been holding up copies of the Canadian Charter of Rights and Freedoms and arguing that it prohibits restrictions on unvaccinated people entering restaurants, bars, gyms, and other locations.
British Columbia, and several other provinces, are implementing systems to provide digital proof of vaccination against COVID-19 in parallel with restrictions on unvaccinated people attending to a range of non-essential service locations where transmission could occur.
One of the Charter sections frequently reference by anti-vaccination advocates is section 7, which provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordant with principles of fundamental justice.”
The legal meaning of this important protection is not so expansive as to prevent anyone from being encouraged or even compelled, to do anything they don’t like.
The rights and freedoms protected by the Charter have legal meanings that are explained in court decisions considering them. It is necessary to review these decisions to determine how the language in the Charter is likely to be interpreted in future cases.
In addition, Section 1 of the Charter says the following “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
It is therefore exceedingly unlikely that the Charter would be interpreted in such a way that would afford unvaccinated people the right to engage in non-essential activity that puts other people at greater risk of infection with COVID-19.
The Charter also doesn’t prohibit laws intended to protect individuals themselves. Examples of these include seatbelt law, helmet laws for bicycles and motorcycles, and laws that prohibit the personal possession of dangerous drugs.
Also on the show, the BC Court of Appeal has expanded the circumstances in which a marriage annulment can be obtained.
To obtain an annulment based on a failure to consummate a marriage, it’s necessary to establish that the failure to consummate the marriage was the result of a physical inability or psychological incapacity to do so.
The case the Court of Appeal dealt with involved a Sikh couple who were married in a civil ceremony prior to live together because doing otherwise would be contrary to their religion. They put off consummating the marriage until they could also have a traditional Gurdwara ceremony, on religious grounds. Before that occurred, the couple separated.
The Court of Appeal concluded that sincerely held religious belief can constitute a “psychological incapacity” to facilitate an annulment.
Finally, on the show, in response to ongoing COVID-19 challenges, the Provincial Court has now facilitated either the person disputing a Motor Vehicle Act ticket, or the police officer who issued it, applying to appear in court by use of MS Teams, or telephone.
This change, like some others prompted by COVID-19, will add to general efficiency and will facilitate access to the court at a lower cost. People will be able to dispute tickets without needing to travel to the location they were issued or taking more time away from work. Police, who may be subject to transfer will be able to attend court at a lower cost.
Legally Speaking Sep 2, 2021
Adam Stirling [00:00:00] Time for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael, how are you?
Michael T. Mulligan [00:00:06] Well, I’m doing pretty good. You know, I don’t have a horse that needs deworming, so I don’t need to worry about the fact that the lunatic fringe seems to have bought out all of the horse deworming medication as a defence to covid. So, you know, I can’t complain.
Adam Stirling [00:00:21] I’m waiting for the inevitable news story of the poor horse that’s riddled with parasites and cannot get the medical treatment it needs because all the dewormer are on the island is sold out. I’m still waiting for that to happen and hopefully, we avoid it
Michael T. Mulligan [00:00:34] Yes, people think of the horses.
Adam Stirling [00:00:37] All right. So, we talk about things being constitutional, being unconstitutional. Generally, when folks say that what they’re talking about is a charter of rights and freedoms, in my experience, it’s in the American discourse as well. But here in Canada, we generally refer to the charter. What does the law say about things like vaccine passports and whether or not they’re constitutional?
Michael T. Mulligan [00:00:57] Well, I mean, the wording of the charter has some pretty big, broad, and important concepts in it. And I’ve got to say, I was happy to see people apparently carrying complete copies of the charter around, framed copies of it at some of these protests, which is I guess good news for the interest in the charter. And people seem to have been sort of looking at some of the general wording and protections and sort of ascribing all kinds of meanings to them. Right.
Adam Stirling [00:01:27] mhmm.
Michael T. Mulligan [00:01:27] For example, some of the people who are arguing that having a requirement that a person be vaccinated before going into a restaurant or someplace have been arguing that that would somehow contravene Section 7, which is a provision that provides for the life, liberty, and security of the person, because those words are pretty broad and expansive. That’s the sort of meaning, I guess, people have attached to it.
Adam Stirling [00:01:54] yes.
Michael T. Mulligan [00:01:54] But, you know, there are a couple of things to be said about that. First of all, there are many of the words in the charter, of course, have been subject to many years of judicial consideration. And the words don’t mean anything you could subscribe to them. For example, you know, Section 6 provides for every citizen of Canada, has the right to enter, remain in or leave Canada. Well, that does not mean that if you’re sentenced to jail, you can just say “ah hah I choose now to leave Canada”
Adam Stirling [00:02:24] I choose to be deported. Yes.
Michael T. Mulligan [00:02:26] Right. It’s not anything that you can choose to sort of fit within these words that they are going to, in fact, mean in a legal sense. So that’s the first thing to be said about them. Perhaps don’t rely upon the Facebook interpretation of what constitutional provisions mean. And then the other thing to be said about it is that in Canada, we have section 1 of the charter in section 1 of the charter says the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Right. And indeed, there are limits to all of these things. Right. And that’s the threshold that would be applied. And, you know, the rights in here are all very important, but they are not sort of unlimited. And anything you might squeeze within the wording rights or to the, you know, freedom of expression doesn’t entitle you to, you know, engage in libel and slander or to scream out falsehoods in a theatre in the classic example, right.
Adam Stirling [00:03:34] hmm. Yes.
Michael T. Mulligan [00:03:34] And so, you know, these things have meaning. It’s not just anything that you might think that you could fit in. The wording is going to be constitutionally protected. And other miscellaneous thought I’ve had about all of this from a legal perspective because there’s been much talk of enforcement and how that might occur, and the premier is talking about merchants being told to phone the police.
Adam Stirling [00:03:59] Yeah.
Michael T. Mulligan [00:03:59] on somebody who is trying to, you know, come in. One of the other alternatives, of course, would be to privatize that enforcement regime. We’ve seen that in, I think, a pretty disappointing fashion in Texas recently, where in an effort to try to ban abortion, what Texas has done is they’ve said, look, anyone is free to sue anyone who gets an abortion or assists somebody in getting an abortion. And so, they’ve tried to privatize that process. And that’s I think, at least in my view, a pretty sinister use of that approach. But you could readily imagine how with this kind of a regime, you could use a similar process and I think a much better way. You could empower somebody to for example, you could create a cause of action with statutory damages if somebody were to either fail to ensure that people coming in to fill in the blank restaurant or a bar or, you know, fitness facility wasn’t vaccinated. So as to protect the other people there. You could permit other people that were there to sue the business owner who permitted that kind of dangerous activity and then just empower people who were endangered in that way to start actions and sue for damages.
Adam Stirling [00:05:21] hmm.
Michael T. Mulligan [00:05:21] And so you can imagine you could have a legal regime that would permit enforcement without necessarily requiring the police to show up there, and one which might be pretty effective, because really at the heart of all of this is the concern that people who are unvaccinated pose to others.
Adam Stirling [00:05:44] Yes.
Michael T. Mulligan [00:05:44] Right. And that’s really at the heart of it. It’s a matter of look, the evidence seems clear that people who are unvaccinated pose a much greater danger to other people around them.
Adam Stirling [00:05:56] Yes.
Michael T. Mulligan [00:05:56] They’re just more likely to be spreading a potentially deadly disease to other people. And so, you know, that’s really the context is somebody is analyzing, you know, is this a reasonable limit on somebody’s freedom to associate or do this or do that? It’s going to be an assessment as to or part of that assessment is going to be the desire to protect others from the danger that those people pose. And I must say that same analysis is going to apply, even if you had somebody who had some legitimate medical reason, for example, not to be vaccinated.
Adam Stirling [00:06:35] Yes.
Michael T. Mulligan [00:06:35] The doctor said, look, this, you have your immunocompromised or there’s something else that would prevent you from safely taking the vaccine. That’s perfectly understandable if that’s legitimate. But that does not translate to well, then that person shall be free to attend things which are entirely optional, like going to a bar or restaurant or a, you know, concert or something. When they are attendance in that way, unvaccinated puts other people there at risk.
Adam Stirling [00:07:07] Yes.
Michael T. Mulligan [00:07:08] And so, you know, it’s not a matter of being punitive or not sort of understanding that indeed there could be some people who do have a circumstance that would legitimately prevent them medically from taking steps to keep themselves and others safe. But again, not as a punishment, but simply as a safety measure for the other people there. Look, I’m terribly sorry, but that’s the medical circumstance you have. You’re not going to be able to protect yourself and others using the vaccine if that’s so. But that doesn’t translate to well, then we must impose that danger on other people who want to be able to go to the restaurant or bar movie or, you know, fitness class or whatever else it might be, because that’s really the effect that it has. It’s not simply a matter of trying to get people to do something to sensibly protect themselves. Right. It’s not a law like and I must say, we do even have those laws. It’s like you have to put on your seatbelt.
Adam Stirling [00:08:07] Yes, yeah.
Michael T. Mulligan [00:08:09] Yeah. Ride your bike, your motorcycle.
Adam Stirling [00:08:11] Precisely. Yeah.
Michael T. Mulligan [00:08:12] And, you know, some of that is justified in our system. I think on the basis that, look, we have a public health care system. And so, if you decide to ride around without a motorcycle helmet and crack your head open, we’re all going to be paying for that. Or if you decide to drive around without a seatbelt on and get yourself seriously injured, we’re all going to bear some, you know, at least financial implication of your reckless behaviour. And so that’s certainly one element of it. But this goes clearly one step beyond the helmets and seatbelts, laws designed to protect the person and I suppose indirectly the public from bearing the financial cost of somebody’s reckless decision. But this is a circumstance where if you’re not taking these steps and you’re in these closed quarters inside, you pose a risk to other people. And so that’s usually the watchword when we’re going to intervene in people’s activity is when your choices put other people at risk. And so, I suppose my summary of it would be, while I’m happy to see people carrying around copies of the charter. It is very unlikely that there is going to be a successful constitutional argument to allow people to make a choice that puts other people’s health and life in jeopardy. And so, you know, I’m glad you’ve got the charter. Hang it up on the wall and read it. But it is very unlikely that there’s going to be a judge who concludes that you’re free to go and put other people in jeopardy so that you can engage in some optional activity, right?
Adam Stirling [00:09:55] Yes.
Michael T. Mulligan [00:09:55] There’s just no need to go to a bar or restaurant. Right. Your free to go and buy food and stay home if that’s what you’re choosing to do.
Adam Stirling [00:10:03] Indeed.
Michael T. Mulligan [00:10:03] But if you want if you want to participate in society and be next to other people instead of optional activities, you’re going to need to do so in a fashion that doesn’t put people needlessly at risk. And so, I think the arguments about the charter and the right to do this really have very little merit to them.
Adam Stirling [00:10:21] Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking. We’ll continue in just a moment on CFAX 1070. We will be right back.
Adam Stirling [00:10:28] Back on the air here at CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers for Legally Speaking. And in any event, Michael, while litigation with respect to covid-19 provisions is either underway or unavoidable at this point, as you’ve, I think, very articulately described, it’s unlikely a judge would find them unconstitutional for the reasons you’ve given. But in any event, it’s not health care workers, doctors, or nurses, nor is it fast food workers who decide what these rules are. So, any dispute that arises between a person and one of those, a class of people would itself be ridiculous and futile because they’re just following the rules like everybody else.
Michael T. Mulligan [00:11:06] That’s exactly right. They have about as much control over this policy as the RCMP officers do that are often enforcing that injunction about old growth logging. You’re just if that’s where you’re focusing your disagreement, you’re pointed in the wrong direction. Right. The health care workers are doing their best to treat people. They don’t decide what the policy is. And with respect to the other matter, the police don’t decide what the law is or whether there should be an injunction or not. And so, getting angry with the person charged with enforcing something is, you know, sort of like getting very mad at the jail guards for the fact that, you know, they’re keeping somebody in custody who was convicted of some offence that you don’t agree with. You’re just pointed in the wrong direction. And so, you know, I think you’re quite right. If there’s to be a protest about these things, it’s to be directed at the people who are making the decision. Right, which is the provincial government, not the person at Burger King who’s asking you to put your mask on. That’s just completely inappropriate.
Adam Stirling [00:12:18] Next case, we’re looking at B.C. Court of Appeal allowing an appeal. Also granted annulment of a marriage which can always complicate these matters.
Michael T. Mulligan [00:12:27] Yeah, this is a I think, a really interesting case because it expands the circumstances in which an annulment can be granted. In my view at least. And annulment used to be a more common thing before divorce was readily available. Right. But we seem to have seen an uptick in the number of people applying for these. And the concept there would if you get the annulment, it’s like the marriage never happened. Right. It’s gone away. And so, this particular case was brought by a woman, and I say and also unopposed by her husband, as it were. And the fact pattern was that the couple met at college. They were both Sikh by way of religion and they decided to get married. And in fact, they had a civil ceremony, and they then began living in the same house together. But they did not consummate the marriage. There were other people that were living in the house with them as friends. And their explanation for that, is that, based on their religious beliefs, they viewed it as not appropriate to live together unless they were married by way of the civil ceremony.
Adam Stirling [00:13:45] hmm.
Michael T. Mulligan [00:13:45] But they also were of the view that they shouldn’t consummate the marriage until they had gone through a religious ceremony, which they hadn’t yet done.
Adam Stirling [00:13:52] Interesting.
Michael T. Mulligan [00:13:53] And they had been living together for a period of time. And unfortunately, they started fighting.
Adam Stirling [00:13:58] So as people do.
Michael T. Mulligan [00:14:01] That’s right. People do. So maybe a good test. So, their relationship ended. It doesn’t sound like that was so like they both agreed to the end of the relationship. And then there was this application for the annulment. Now, the challenge they had; they were unsuccessful in chambers like the B.C. Supreme Court.
Adam Stirling [00:14:20] mmhmm.
Michael T. Mulligan [00:14:20] And the reason they didn’t succeed is that as a common law principle, it’s not enough that you established that the marriage wasn’t consummated. That was common ground. You need to also establish that the marriage was not consummated because of a physical or psychological incapacity to consummate the marriage. It’s not enough that people have just decided, hey, let’s just wait. That doesn’t do it. And so, the judge hearing the application for the annulment denied it on the basis that, look, you just chose not to consummate the marriage for a variety of reasons, religious and family planning reasons and so on. And that’s fine. But that doesn’t meet the test for the annulment and so off the case goes to the Court of Appeal. And so, we have this brand new and, I think quite interesting decision, that analyses why the couple chose not to consummate the marriage and found that that decision was based on sincerely held religious belief. And the Court of Appeal found that a sincerely held religious belief as a reason for not consummating the marriage was sufficient to establish an incapacity.
Adam Stirling [00:15:34] hmm.
Michael T. Mulligan [00:15:34] To consummate the marriage.
Adam Stirling [00:15:36] hmm.
Michael T. Mulligan [00:15:36] And so on that basis, granted the annulment.
Adam Stirling [00:15:39] Interesting.
Michael T. Mulligan [00:15:39] And so what it means going forward is that if somebody can establish on a balance of probabilities that a marriage was not consummated and that decision not to consummate it was based on a sincerely held religious belief, that can then form the basis for getting an annulment. And so, it’s an interesting case is one of those things sort of one might not be expecting in terms of how religious beliefs interface with this concept of incapacity. And so, in British Columbia, we’ve now slightly expanded the circumstance in which an annulment might be granted. And so, I thought that was a really interesting case people should be aware of.
Adam Stirling [00:16:21] Absolutely. And we’ve got both six and a half minutes left. So, plenty of time. New covid rules from the provincial court will allow either a person disputing a Motor Vehicle Act ticket or a police officer who issued the tickets now appear at trial via MS Teams. What’s it like to appear in court via either MS Teams or Zoom? Michael, help people understand, because I think that not a lot of us have spent time in a courtroom, much less a virtual one. What’s it like?
Michael T. Mulligan [00:16:48] Well, I’ve been doing a lot of it lately, so I can tell you about that for the right kind of case or the right kind of witness. It works very well. And we’ve seen the use of the video remoted tendencies increased really substantially through covid as courts have just made things work in an effort to try to have court’s function while keeping people safe. And so, we have seen, for example, in the world of criminal law, things like sentencing hearings where nobody is seeking a jail sentence. Right. Everyone’s agreed that it’s going to be a fine or probation or something of that sort to allow those to occur entirely by MS Teams, where you have the judge on the screen, the Crown Defence, and you can have the accused person attending by telephone or by video connection as well. And so, for cases of that kind, it’s worked extremely well. And we’ve also seen counsel using remote connections much more frequently, where possible, for witnesses. Right.
Adam Stirling [00:17:53] Yes.
Michael T. Mulligan [00:17:53] Where they are testifying, police witnesses or other professional witnesses where having them in the courtroom isn’t really necessary or advantageous. So, I think all that’s been generally pretty positive. The change which occurred just yesterday was to expand the possibility for motor vehicle tickets for there to be an application to allow. Now, not only the person who got the ticket is disputing it, but also the police officer. If they wish to make an application in advance, there’s a form that has to be filled out and sent in for the judicial justice. Who would be deciding the issue to decide whether it would be appropriate to allow them to testify or in the case of the person disputing the ticket, dispute, their ticket remotely using MS Teams. And I think this is really good and an advancement. Right. Having, you know, witnesses always testify in that fashion I don’t think would necessarily be appropriate.
Adam Stirling [00:18:57] mhmm.
Michael T. Mulligan [00:18:58] Sometimes there’s just a need to have the person present for cross-examination or other purposes. But, you know, there should be a dispute resolution mechanism that sort of fitting the nature of the dispute, right?
Adam Stirling [00:19:13] Yes.
Michael T. Mulligan [00:19:13] The ticket, which is being disputed and I think this is a positive approach to it. I would also say this, right; disputes of this kind, a person disputing their speeding ticket, for example.
Adam Stirling [00:19:26] Yes.
Michael T. Mulligan [00:19:26] In my view, is really important because for most people, that is going to be one of the only interactions they have with the justice system. That’s it. Most people aren’t going to be charged with a crime. Most people aren’t going to happily be engaged in civil litigation. For most people, that’s it. And so, I do think it is very important that we have a system which is fair, and people come away from it thinking, hey, that was fair. I was treated appropriately. I had a chance to be heard. I had a chance to ask questions of the other side, the person deciding it seemed impartial because for many people, these are going to be people who do wind up, as you know, jurors down the road or witnesses in serious cases potentially. And the impression left by the provincial court or the criminal justice system generally.
Adam Stirling [00:20:21] mhmm.
Michael T. Mulligan [00:20:22] When dealing with somebody small claims fence dispute or the, you know, speeding ticket, they don’t think they were issued properly, really matters, because for many people, that’s going to form their entire impression of the system. And so, I do think it’s important that we continue to have this sort of a proper process in place for people to dispute those tickets and have a trial and an independent person deciding it. And all of that is very important. And I think this change, that’s to say allowing either side to ask to appear by video both means that objective. And also, it makes the system, I think, more efficient and would allow people to legitimately contest things in a fashion that doesn’t mean, well, look, if you want to contest your speeding ticket, you’ll have to take the entire day off work or hate to be down there doing that. Right. This would make the system more accessible to people who might have, you know, let’s say you got a speeding ticket in, you know, some other part of the province.
Adam Stirling [00:21:23] Yes.
Michael T. Mulligan [00:21:24] Without saying, look, you’ve got to drive back to some place a thousand kilometers away if you wish to dispute it, making it a practical impossibility. This is going to allow people to dispute tickets like that to do it more efficiently with less time off work and allowing the police to apply to do it as well, I think is going to add efficiency there. If police officer who wind up being transferred to other jurisdictions, RCMP officers moved across the country, that kind of thing.
Adam Stirling [00:21:54] Yes.
Michael T. Mulligan [00:21:54] And so not only is that it’s clearly motivated by covid, but I think it’s one of those covid motivated changes to the system that hopefully sticks around because it has the potential to make things more fair and efficiency and all at the same time continuing to have a meaningful process for people to dispute these things so that they don’t feel like they are left without a fair process. So that change yesterday, I think, is a positive one and people should be aware of it. If you’re disputing a ticket, you can go online if you wish to dispute the ticket and do it by Microsoft Teams, fill out the form in a timely fashion and ask for permission to do it. And that may be perfectly permitted.
Adam Stirling [00:22:39] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, on CFAX 1070. I do so enjoy these segments every week, Michael, until next time.
Michael T. Mulligan [00:22:47] Thank you so much. Stay safe.
Adam Stirling [00:22:48] You too. Bye now.
Automatically Transcribed on September 3, 2021 – MULLIGAN DEFENCE LAWYERS