Vote counting controversy resolved in court, an acquittal on an attempted murder charge, and alleging perjury results in special costs


This week on legally speaking with Michael Mulligan:

While attempting to count ballots for the election of a board of directors for the Shon Yee Benevolent Association things went sideways when water spilled on a table during the vote count.

Once this was cleaned up it was unclear whether a disputed ballot had been included in a count on a whiteboard, or where the ballot had been put.

Various other ballots had been marked in unusual ways, including a mixture of tick marks, crosses, and in one case the number 11.

Following a break for dinner, it was determined that the ballot box containing the disputed ballots had been unsealed by someone unknown, preventing a reliable recount.

After two years of not having a board of directors, the matter was finally resolved by the BC Supreme Court.

The series of unfortunate events that propelled the vote count into court should be a cautionary take for the counting of ballots in general elections.

Also discussed was a case involving a man who shot a police officer in the hand and arm before running away in a Skytrain station. The man was charged with various firearms offences, which were not contested. A charge of attempted murder was, however, an issue.

The essence of any charge of attempting to commit a crime is that the accused must have the intention to commit that very crime. A person may be convicted of murder who either intends to kill another person or who in the words of section 232(a)(ii) of the Criminal Code, “means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. But, an accused may only be convicted of attempted murder if it is proven that he intended to cause the death of the other person.

If someone points a handgun at a vital part of another person’s body and shoots the person, it may be reasonable to presume that they intended the probable consequences of their actions. This does not, however, mean that in every circumstance where one person shoots another with a firearm, the shooter is guilty of attempted murder.

On the facts of the case discussed, the judge had a doubt about whether the accused actually intended to kill the police officer. The judge took into account several pieces of evidence, including the testimony of the accused. Other factors included where the police officer was shot, and that the accused did not shoot the officer again after when running past him despite having had the opportunity to do so.

Finally, a Court of Appeal decision concerning an estate dispute is discussed. The appellant alleged the other party committed perjury but did not have evidence to support this claim. Making such a serious allegation, repeatedly, without evidence, was determined to be reprehensible conduct and the court awarded increased, or special, costs against the unsuccessful appellant.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.


An automated transcript of the episode:


Legally Speaking Oct 22, 2020

Adam Stirling [00:00:00] It is time for Legally Speaking, here on CFAX 1070 Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers joining us, as always. Good morning, Michael. How are you?

Michael T. Mulligan [00:00:09] Good morning. Great to be here, I can’t complain at all.

Adam Stirling [00:00:12] Excellent. So, what’s on the docket for today?

Michael T. Mulligan [00:00:14] Well, I think the first case is a good cautionary tale given the upcoming election in B.C.

Adam Stirling [00:00:23] Counting ballots, yes.

Michael T. Mulligan [00:00:24] Counting ballots. Indeed, you would think that they would be straightforward. What could possibly go wrong? Just add them all up and there you are. But this is a decision that just came out that involved exactly that, an issue of counting ballots. In this case, who was counting ballots for the Shon Yee Benevolent Association of Canada. That’s an association that does community work, they raise money for the United Way and other projects as a sort of social club as well. So do positive things in the community. And that organization has about a thousand members. And they had in 2018, an election to determine who is going to be on the board of directors of one of the parts of that association. There were two different sort of groups of people in the association that were vying for spots to be a director. Twenty-five people were being elected. People voted and then they sat down to start counting ballots. So, they were going to be doing soon in British Columbia, hopefully for lots more than a thousand people.

Adam Stirling [00:01:29] Yes.

Michael T. Mulligan [00:01:30] And so they had designed this process to count ballots where they had several people working on it. Ballots would be opened up, people would look at them, read out the name, show it to the other people that were participating in the process. They’d be tallied up on a whiteboard signed by an election official. And you would think, you know, this can’t be that complicated. What could go wrong here? Well, let me tell you, first of all, there were a number of ballots which had various oddities on them.

Adam Stirling [00:02:03] Oddities, I like that.

Michael T. Mulligan [00:02:04] That’s right. Oddities So they included things like the instructions on the ballot indicated to the list of possible names to put tick marks in boxes next to the candidates you were voting for. Well, somebody voted for 26 candidates and they could only vote for 25. That obviously doesn’t work. Somebody was using a mixture of tick marks as an excuse. One person used a bunch of tick marks, tick marks, and then wrote the number eleven next to somebody. And so, as these things were sort of progressing, one of these ballots got pulled out and there was a dispute about whether it should be counted. And then at that time, one of the people involved stood up to go use the bathroom. While he was off using the bathroom, the table got bumped, the water got spilt.

Adam Stirling [00:02:50] Oh, no.

Michael T. Mulligan [00:02:51] And then a dispute arose about, well, what happened to that ballot that was disputed. Is it written up on the whiteboard? Some people thought that had been written on the whiteboard and put in the pile of counted ballots. Somebody else thought it was put under the microphone. It was unclear whether it was in the tally or not. And so, with that state of disarray, the group doing this, all volunteers, of course, decided to give a pause and go for dinner. So they decided eventually, well, there’s some dispute here, they should put all the ballots into a ballot box, seal it up with tape, and then a couple of the election volunteers would sign their names on the tape to show that it was sealed. They went for dinner and then later they said, OK, well, now let’s get into that, maybe we should just recount the number of ballots to resolve the dispute about whether this disputed one was counted, written on the whiteboard or was under the microphone when the water got spilt. It was just a disagreement about whether it got counted and it mattered because of how close the vote was.

Adam Stirling [00:03:50] Wow.

Michael T. Mulligan [00:03:50] Well, unfortunately, by the time they got back to doing that, somebody had opened the ballot box. The tape no longer seal.

Adam Stirling [00:03:57] oh No.

Michael T. Mulligan [00:03:57] So now what? Well, I’ll tell you what, you have no board of directors from 2018 through too very recently when this case went to the B.C. Supreme Court. And there is authority under the Societies Act for a judge to resolve these kind of problems. And so, the judge was charged with affidavit evidence from 13 people who were present. They’d been cross-examined. You know, transcripts of that was all provided. And as you know, with human memory, of course, people have different memories of exactly what happened.

Adam Stirling [00:04:32] Yes.

Michael T. Mulligan [00:04:32] Some people thought the disputed ballot was on the whiteboard, other people thought it wasn’t. Some people thought it was put in the counted pile, other people thought not. There’s just a legitimate, you know, understandable, different perceptions of what exactly went on here. And then the judge was also charged with all what do you do with all these various irregular balance? What do you do with people who have tick things off on the other side, written the number eleven, used a combination of different symbols? What does that mean? Does the ‘X” mean I don’t like this person tick mark means the other person’s great. What did these people all mean? And so, the judge to a large extent, sort of relied upon the decisions made by the volunteers that day, because societies are able to formulate their own election process.

Adam Stirling [00:05:18] Okay.

Michael T. Mulligan [00:05:18] As long as there’s something they can possibly comply with. So as far as possible, the judge tried to defer to the decisions that had been made by the volunteers when they were looking at least the ballots that they knew had been counted or not counted. So that was the general approach. But finally, the judge had to make a determination about what should be done. And he concluded that he was satisfied that the disputed ballot was included in the tally on the whiteboard before the members left for dinner. And so that determine the outcome of the election. And so, I guess the takeaways for everyone are, please read very carefully the instructions on your ballot. Don’t use tick mark to tick marks, start circling things, writing, yes, no, or, you know, whatever on it. Make sure you carefully follow the instructions. I am still worried about quite what’s going to come of the written in ballots.

Adam Stirling [00:06:15] Yes.

Michael T. Mulligan [00:06:15] Distributed for mail in, hopefully people, you know, read carefully the instructions and write in either the name of the candidate or the name of the party and not the leader or something else in there.

Adam Stirling [00:06:29] Yes.

Michael T. Mulligan [00:06:29] So, you know, this is an example of this Benevolent Society of where, you know, the instructions just require you to tick things off. And yet you see all of these sort of, you know, human derivations of, you know, decision making and trying to indicate various things. So hopefully people get it right and you both vote him vote in a way that gets your vote counted. So, the good news for the Benevolent Association is they’ve now got a board of directors and they can carry on with their good work doing cultural activities and raising money for the United Way. It also looks like, according to the website, they engage in things like provide a venue for table tennis and Chinese opera lion dancing, sounds like a lot of fu.

Adam Stirling [00:07:12] And everyone can benefit from their very lengthy experience in resolving this matter.

Michael T. Mulligan [00:07:16] That’s right. It’s a timely advice for everyone in terms of how to both fill out ballots and count them up in a way and try not to spill water.

Adam Stirling [00:07:24] Absolutely. Let’s take our first break, Michael Mulligan. We’ll continue offering us the benefit of his analysis and insight, Legally Speaking, continues right after this.

[00:07:32] COMMERCIAL.

Adam Stirling [00:07:32] Michael Mulligan with legally speaking, as we continue that process you’ve just described to us will likely be replicated hundreds of thousands of times, although hopefully with all the complications that accompany the scenario you described.

Michael T. Mulligan [00:07:44] That’s right. Let’s hope there’s a minimum of water spills and the use of numbers to indicate who you wish to vote for in the in the general election.

Adam Stirling [00:07:52] Absolutely.

Michael T. Mulligan [00:07:53] Given a large enough number and something’s going to come up, right.

Adam Stirling [00:07:57] an acquittal. I’m reading in our next story here on a charge of attempted murder involving a shooting of a transit police officer in the arm and the hand. What are the details of this matter?

Michael T. Mulligan [00:08:06] Yes, indeed. So, this was a very unfortunate case, although I must say ultimately everyone survived. So that was good news. The background here was that in Vancouver, a couple of transit police who were wearing sort of civilian clothing, but had their badges out were looking around for sort of suspicious people at a Skytrian, the Skytrain area. And they spotted a fellow, a Mr. Glasgow, who, when they saw him, seemed to walk away from them or try to get away from them. And so, they thought that suspicious and they wanted to find out why he was walking away from them. So, they began to pursue him, and he ran up into a Skytrain station, took off a sweatshirt that he was wearing and sat down on a bench, I guess, hoping to not be seen. The officers were walking towards the man, and when they got close to him without warning, he pulled a handgun out from his waistband and fired twice, hitting one of the officers in the arm and the hand. And the man then began to run away past the officers, the officer who had been hit, this could have been bad too, pulled out a handgun and began firing at the man as he was running away, explaining they thought that he might harm somebody else and they needed to try to immobilize him. The officer missed. The man was eventually arrested five days later. And as a result of DNA and video, there wasn’t really an issue that the man had done this. Now he was charged with a number of things, various offences involving causing danger by discharging a firearm, possessing a restricted firearm, discharging it in a reckless way, all various things. But he was also charged with attempted murder. And that was the issue at his trial. He didn’t take any issue with the other things, ignore alleged that he had done all of the other various things, but attempted murder is an interesting charge. Attempted murder requires the crown to prove beyond a reasonable doubt that the accused person intended to kill the person with whom he’s charged with attempted to be tempted to murder. And that’s a little different from what would be required to convict somebody of murder, right?

Adam Stirling [00:10:29] Yes.

Michael T. Mulligan [00:10:29] If somebody is actually killed. You can be convicted of murder if you intend to kill somebody, or you could also be convicted of murder if you mean to cause bodily harm to the person that you know is likely to cause their death. And you’re reckless about whether death ensues or not. And so, for example, had the officer died, who was hit, the assessment for usually a jury would be either did you intend to kill the police officer or did you mean to cause bodily harm you knew was likely to cause the person’s death and were reckless about whether they died or not. But that’s a little different. And so the other interesting element of this case is that the man chose to testify and he testified that he was on parole, that he had started living with his girlfriend rather than the halfway house he was supposed to be living at, that he didn’t intend to kill the police officer. He was just trying to escape. And the judge, when analyzing that, looked at a number of things, including the fact that the man had his gun out and ran past. The police officer didn’t shoot at him again, that he was that police officer was hit in the hand and arm rather than in the sort of center of mass, for example.

Adam Stirling [00:11:46] mmhmm.

Michael T. Mulligan [00:11:46] It took that to be perhaps an indication that he was not trying to hit him in a particular place or shooting him again as he ran past him. And on the basis of all of that, the judge concluded that there was a reasonable doubt about whether the shooter intended to, in fact, kill the police officer as opposed to, on his evidence, escape from the police officer by shooting in this fashion.

Adam Stirling [00:12:12] What is the standard for bodily harm, with respect to intent as opposed to just harm?

Michael T. Mulligan [00:12:18] Well, the language used is causing bodily harm that, you know, is likely to cause death or reckless as to whether death ensue.

Adam Stirling [00:12:26] Okay.

Michael T. Mulligan [00:12:26] And there’s actually some not surprisingly, I don’t think, case law surrounding what inference you might draw if somebody, you know, shoot somebody, let’s say, at close range with a handgun into some vital part of their body. And there is good authority, which I think most people would find to be common sense, which would say, you know, if there’s evidence that somebody fires a gun at close range into a vital part of somebody else’s body.

Adam Stirling [00:12:49] Yeah.

Michael T. Mulligan [00:12:50] In the absence of some explanation, the only rational inference you could draw would be that you were intending to kill the person.

Adam Stirling [00:12:56] Yeah.

Michael T. Mulligan [00:12:56] Right. If you’re right there and you shoot the person in the head or heart or something. Well, what else could you have intended by doing that, absent some other compelling explanation for it?

Adam Stirling [00:13:06] Yes, Okay.

Michael T. Mulligan [00:13:06] But here the differences were elements of, first of all, where the officer was shot, how the person did it. It was all on video in fact, you see what happened. And so, because of the particular elements, including the fact that the person, the accused didn’t shoot, the officer in the head or chest, didn’t when he ran past them, shoot him again. And his evidence about what he was trying to do, escape, rather than trying to kill a police officer. Based on all of those things, the judge had a reasonable doubt about whether the person actually had the intent to kill the police officer. And so, on that basis, while well, he was convicted of various other very serious firearms offences and will no doubt spend a very long period of time in jail. He was not convicted of the attempted murder case because that one requires the actual intent to kill, not something less than that. And here, based on both that person’s evidence and those that fact pattern, much of which was on video, the judge had to doubt about whether that’s what the person was actually trying to do.

Adam Stirling [00:14:17] Interesting.

Michael T. Mulligan [00:14:17] There it is. Attempted murder requires not just a very serious assault. You have to actually prove what the person meant to do.

Adam Stirling [00:14:25] You and I have discussed family law and these specific emotional stakes that can often be at play in litigation with respect to it, I would suspect that that is made even more of a potentially complicating factor when it involves inheritances and estates. I’m reading here, nothing brings out the worst in people like an estate dispute in our next story.

Michael T. Mulligan [00:14:46] I think that’s about true. Right you see just the most atrocious behaviour people engage in when they’re fighting over things like that? This particular case was an appeal, and the underlying issue was the, the daughter of the, her father passed away. The father had had a common law of spouse of many years and the common law spouse and the father of the person who was appealing lived in a house together. The house was registered as joint in a joint tenancy, which meant that when the appellant’s father passed away the value, the house was automatically transferred to his longtime common law spouse rather than becoming part of the estate. So, it meant that the daughter didn’t get to share in the value of her late father’s home. That was the underlying issue, and that proceeded off to trial, which had very many issues surrounding credibility, whether various claims being made could be believed. The claim of the daughter was that there was a what’s called a trust, or an implied trust imposed on the value of the home because of money allegedly given to the father to contribute to the cost of the home. That was the basics of the claim.

Adam Stirling [00:16:12] mhmm.

Michael T. Mulligan [00:16:12] The judge didn’t accept that and found that the longtime common law partner of the deceased father was entitled to the home. She was 83 at the time of the trial. So, she could keep living there. But the daughter was not satisfied with that outcome. And after the initial trial ended, the daughter wound up being given a computer which belonged to her father. The daughter plugged the computer in, attach it to the Internet, and it downloaded a bunch of e-mail. One of the emails the daughter pointed to saying aha. Look, this shows that on some collateral point, her father’s partner was not truthful. Right? That was it.

Adam Stirling [00:16:58] Yes.

Michael T. Mulligan [00:17:00] And so she went back to court trying to persuade the judge, hey, you should throw the case out or reopen it. This is really important, fresh evidence. The judge did not accept that, found that the email did not show that the person was dishonest, but the daughter was unprepared to accept that. Right. And that’s how the matter wound up off in the Court of Appeal. The daughter, however, started making representations both in her written argument to the Court of Appeal and what she said orally in court, although these days that would be by Zoom, I should say, her saying that this showed that the partner of her late father had perjured herself and that the lawyer had been involved with the perjury and knew about it, claims which just weren’t supported by the email that she had.

Adam Stirling [00:17:49] Yes.

Michael T. Mulligan [00:17:50] And so the Court of Appeal not only dismissed her appeal, saying that, no, the trial judge, it acted properly. This wasn’t something that showed what the daughter was claiming. But the Court of Appeal then went on to deal with the issue of costs, which we’ve talked about before.

Adam Stirling [00:18:10] Yes.

Michael T. Mulligan [00:18:10] And the general idea is that, you know, a party who is successful is going to have the party who’s unsuccessful pay part of their legal expenses. The purpose of that is to encourage people to settle their claims out of court. Right. Where possible.

Adam Stirling [00:18:24] Yes.

Michael T. Mulligan [00:18:25] Here, however, the Court of Appeal did more than simply award ordinary costs, which would be a relatively small portion of your actual expenses going to court. And they instead imposed special costs which are higher than that. And in so doing, they talked about what the daughter had done here in terms of making claims of perjury and intentional lying, which was just not supported by the evidence that she had. And the Court of Appeal pointed out that making those kind of claims like alleging somebody is dishonest and perjuring themselves is they described it as reprehensible conduct. Right. It’s just not right to go around without evidence to establish it, claiming that somebody is perjuring themself and lying and being intentionally dishonest. Those are claims that are well beyond, oh, you made a mistake here, your memory failed, or you were, you know, all of those human frailties.

Adam Stirling [00:19:28] Yes.

Michael T. Mulligan [00:19:29] And the Court of Appeal found that she persisted in making those unfounded claims, both in her written argument and in her oral argument. And those kind of claims when they are unsupported, is the kind of reprehensible conduct which is deserving of rebuke. And so, as a result of conducting yourself in that way, the Court of Appeal ordered special costs, which will be much higher than the ordinary costs that would flow if you sue somebody or appeal a decision and lose. And so, the message for people is this, don’t make those kind of serious allegations about other individuals unless you’ve got real evidence to support them. Right. Human make, human memory is fallible. People make mistakes. Right. People have different memories of whether things got written on whiteboards or where the ballot went when the water spilled. But those kind of things are not ordinarily an indication that people are perjuring themselves or intentionally lying. Those are just the normal human experience. Right.

Adam Stirling [00:20:40] Yes.

Michael T. Mulligan [00:20:40] And none of us are video cameras. We’re all doing our best and are, you know, fallible. And we ought not to without very good evidence to support it start alleging that other people are perjuring themselves and intentionally lying and engaged in that sort of really serious conduct. Unless you’ve got good evidence to support it. And if you do so, you can expect to get the kind of rebuke that the Court of Appeal handed out here and you’re going to pay for it.

Adam Stirling [00:21:06] Always a welcome guest during the second half of our second hour on a Thursday here at CFAX 1070 Michael Mulligan. Legally Speaking, thank you so much for your time, as always.

Michael T. Mulligan [00:21:14] Thank you. I’ll always enjoy it. Stay safe and have a great day.

Adam Stirling [00:21:17] Yeah, you too. Talk to you next week. Bye now.

Automatically Transcribed on October 22, 2020 – MULLIGAN DEFENCE LAWYERS