When Does Someone Become an Agent of the State?
Where do your constitutional protections begin and end? The dividing line between private actions and state authority forms the heart of a fascinating BC Court of Appeal decision that clarifies when ordinary citizens become “agents of the police.”
The case centers on Loomis Courier employees who, at police direction, set aside suspicious packages for warrantless seizure during a drug investigation. Unlike previous cases involving independent security guards or school administrators, these employees were acting on specific police instructions. The Court established that the key test is whether individuals would have conducted themselves the same way “but for” police involvement—a crucial distinction that determines whether evidence can be excluded from criminal trials.
Privacy rights received further examination in a separate ruling that overturned a class action against the doctor rating website RateMDs.com. The Court determined that publicly available professional information—like a doctor’s office address or phone number—doesn’t carry a reasonable expectation of privacy protected under BC’s Privacy Act. This distinction between truly private information and professional details available through other sources highlights the contextual nature of privacy protections in the digital age.
The Court also addressed the tension between professional standards and constitutional freedoms in a case involving a lawyer disciplined for sharing inappropriate “locker room talk” about a judge with a client. While not condoning the behavior, the ruling emphasized that regulatory bodies must balance conduct requirements against fundamental rights like freedom of expression—even when regulating professionals whose speech carries special responsibilities.
These rulings collectively illustrate how courts navigate the complex intersection of individual rights, professional obligations, and state authority. They remind us that understanding these boundaries is essential in a world where the line between private and public actions continues to blur. What private actions in your life might unexpectedly cross into constitutional territory?
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Sep 25, 2025
Adam Striling [00:00:00] Time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, it’s Legally Speaking on CFAX 1070 with Michael Mulligan. Afternoon Michael how we doing?
Michael T. Mulligan [00:00:09] Hey, good afternoon I’m doing great always good to be here.
Adam Striling [00:00:12] Some interesting cases on the agenda this week I’m reading Loomis employees maybe “state agents “when setting aside packages for the police. What happened here ?
Michael T. Mulligan [00:00:23] well first of all here’s why that matters right this issue of whether somebody’s an agent of the police. It matters because you have constitutional protections for various things including privacy. most people are aware of that right the police can’t just come in and rummage around in your home and see what they find.
Adam Striling [00:00:40] Yeah.
Michael T. Mulligan [00:00:40] Without a warrant or some reason to do that but that is protection against actions of the state, like the police for example. It doesn’t protect you from other people. so let’s say for example, I don’t know, your nosy neighbour, on their own accord, decides to sneak into your house and spot some drugs in your bedroom and calls the police.
Adam Striling [00:01:06] mm hmm.
Michael T. Mulligan [00:01:07] Well it may be that the neighbour did something wrong, even illegal, but that doesn’t necessarily mean that you’re going to get any remedy for that in your eventual trial for possessing the drugs, because you’re protected against actions of the state, not action of other people.
Adam Striling [00:01:22] Interesting.
Michael T. Mulligan [00:01:22] And so the rub really comes when it’s sort of ambiguous about who’s doing what and why, okay. So this particular case involved the issue of whether these employees of the Loomis courier company were in fact agents of the RCMP when they were setting aside packages in the course of a drug investigation. And the whole thing started when some, I guess, sharp-eyed Canada border service agency employees over at the Vancouver Airport noticed some packages, which they investigated. They were being shipped to New Zealand, and they opened them, as I should say, by the way you’re permitted to do, right it’s a different thing when the border people are doing examinations of things.
Adam Striling [00:02:10] mmm hmm.
Michael T. Mulligan [00:02:11] And they found inside a whole bunch of methamphetamine and interestingly a fingerprint matching the accused. So that’s what they found, and the border people notified the RCMP. So the RCMP did investigations, as they were apt to do, and they determined that these two packages had been shipped via a Loomis Express location in Nanaimo and the RCMP went and made some inquiries and spoke to employees of the Loomis facility. Now, what they were told to do was a little ambiguous or at least there was a disagreement between what the police alleged and what the employees testified they were told to do. The employees testified that the police told them to sort of you know act natural if the person who came back in was another person, not the accused, who dropped the things off and was using the name of a, turned out to be a fictitious company. But they were told look if this person comes back in, according to the employees, they were told to you know act natural take the package as usual try to take some pictures of them, if you can do that without them noticing, and set the side the packages and let us know. The police claimed they didn’t quite provide all that instruction, but that’s what the employees at the Loomis place said and the judge accepted what the employees said in preference to what the police said. In any case this fellow who shipped the first package, not the accused, showed up again and the employees did what they said they were told to do. They took the package as usual. They made some discrete observations, including this person going and getting in a vehicle that was registered to the appellant. Okay so another connection to this person who was charged and then phoned the police and set aside the package. and the police showed up the next day, I think ,and seized the package without a warrant and so the issue was and then there were a couple of other packages, the same thing happened and they were determined eventually to contain all kinds of things, fentanyl, cocaine, this and that, I guess trying to ship these things over to New Zealand. And so the issue became is there a problem with the employees without a warrant taking these packages setting them aside and giving them to the police, the police taking them without a warrant. And at the trial the judge found that, oh no, there’s nothing wrong with that, that’s fine. You know that these people, you, the employees of the Loomis weren’t really agents and that’s the issue that went to the Court of Appeal. The Court of Appeal disagreed, and they looked at three previous cases, that are kind of the seminal cases on that issue of is somebody an agent for this sort of a purpose. And the first of those cases is a Supreme Court of Canada case from a few years ago and that case involved a private security guard at a bus station who smelled some, he thought to be marijuana from a locker and he decided, on his own, to open up the locker and see what was in there and he found indeed a package with marijuana in it. Back when it was illegal, I guess.
Adam Striling [00:05:15] hmm.
Michael T. Mulligan [00:05:15] Right but put it back in the locker and then phoned the police and the police eventually got authorization and seized the contents of the locker. The issue was that security guard sort of an agent and the answer from the Supreme Court of Canada was, no he wasn’t. He did those things completely on his own. And so the person didn’t have any basis to complain about his constitutional rights being violated by the security guard and the same answer came in another case that was a little closer to the line. A case involving a school principal, I think it was a junior high principal, and the junior high principal got a tip that one of the kids in his school was selling marijuana and at the school dance the vice principal called the kid into the office, phoned the police, told the police to come down here. The police, just before the police showed up the vice principle said I’m going to search you for the drugs, police showed up sat down didn’t say anything to the vice principal or the kid and the vice-principal searched the kid and lo and behold he had marijuana, and would up being charged with that and again the finding was that wasn’t an agent that’s just a vice principal doing something. Police didn’t direct him or ask him to do that. The other side of the equation came in an example or came in a case involving a man who the police suspected committing a crime but wanted DNA evidence to try to tie him to it. And he happened to be in custody for something else and the police found out that yeah, man needed to get dental work done while he was in jail and so the police contacted the dental people, he was the dentist of the dental assistant and said yeah we want his DNA and so when you’re treating him pretend just do it as normal but we want you setting aside, I guess you know, blood or things from saliva, whatever from the dental procedure, so we can come and get them. And the dentist and the assistant did that and so that came and got seized and eventually the conclusion was, yeah that is exactly what a state agent is, those people weren’t just doing that on their own accord. And the proper test as the Court of Appeal pointed out, is whether the people involved would have conducted themselves in the way they did, but for the involvement of the police. and in that example of the dentist the dental assistant, no they weren’t going to be setting aside carefully the, you know saliva samples or whatever from this man so the police to seize them, like in those the other case where the people acted independently. And so the Court of Appeal found that look the what the Loomis employees did was exactly that, the judge accepted what the employees said the police told them to do in preference to what the police alleged that they were told to act natural, set the things aside, take pictures if you could, and report it to the police and so on that basis on that proper test of whether the people would have done what they did, but for the invention the intervention of the police, that could amount to them being an agent of the police. and so on that basis a new trials been and a judge at the new trial will need to confirm that, yeah that’s the case, and then, if so, what remedy there would be. And so that’s the Loomis case involving agents and that’s why it very much matters whether somebody is doing something on their own or whether they’re doing it because the police asked them to or indeed even if they didn’t expressly ask them to would they have done it but for the police involvement and that’s latest from the Court of Appeal
Adam Striling [00:08:39] Michael Mulligan with Mulligan Defence Lawyers Legally Speaking will continue right after this.
[00:08:44] COMMERCIAL.
Adam Striling [00:08:44] Legally Speaking on CFAX 1070 as we continue our conversation with Michael Mulligan from Mulligan Defence Lawyers. Michael, up next on the list I’m reading, it says certification of a class action against a doctor rating site was overturned on appeal how did this happen?
Michael T. Mulligan [00:09:00] Well it’s an interesting case. It’s a BC case of course and it involves an attempt to sue a website that’s called RateMD.com and that site apparently contains A place where people can go and provide ratings for doctors and other medical professionals. In the site would have reviews and then rankings against other medical professionals in the same location, amusingly all of that assumes of course you have a choice of variety of medical professionals in the location you’re going to be in as opposed to i guess the BC reality, which is, you’re going to be absolutely thrilled to get any one you can possibly get to help you no matter what the rating is on RateMD.com. Leaving that aside, was brought alleging violations of the Privacy Act and as class actions do, there’s a representative plaintiff and then they would settle pleadings as to why they say they have a cause of action and you would need to get the thing certified as a class action if you wanted to operate on behalf of like a group of people rather than just that person. And so that’s what occurred in this case and the claim is brought by a doctor alleging that her privacy interests were breached by having these reviews up on the website. And she relied upon two different claims under the Privacy Act in British Columbia. One is that you have a there’s a tort without proof of damages, interesting, so it created this statutory tort or cause of action on the basis that Your privacy has been breached, but what does that mean, and of course we have to look at Some of the case law surrounding it. And it’s not an unlimited thing and previous case was a look that section of the privacy act you have to look at the nature and degree of privacy that is reasonable in the circumstances. And so there has to be some assessment of you know what kind of information is this. And the court of appeal pointed out, this wasn’t a claim being brought on the basis of some specific review like some reviews saying hey you posted my home address or a picture of me through my bedroom window with a telephoto lens or something as part of your comment on my medical skills.
Adam Striling [00:11:24] Yeah.
Michael T. Mulligan [00:11:24] Instead it was a claim based on, look is there generally anything on there, this information about me, I have a privacy interest in, and the information amounted to things like the telephone number for the doctor, a link to their website, or you know address of their office for example. And for that kind of information is the court of appeal pointed out, it’s all readily available. If you want to get information about a professional, professionals you know office address or contact information, you can easily use the internet and go to for example the you know professional regulatory body to determine what is the contact information for that person, even if they don’t have a website or phone number, which would be hard to imagine, but.
Adam Striling [00:12:09] Yeah.
Michael T. Mulligan [00:12:09] The court of appeal found that looking at this that kind of information in a broad sense it’s not analysis on particular thing yeah there could be some review that has something is out of bounds, but the one-off particular thing isn’t something you can have a class action about. You know what I mean like, if some particular doctor said hey some deranged patient took your picture of me through my bedroom window with a telephoto lens and posted it on some site. Yeah, that doctor might have a claim under the privacy act probably would.
Adam Striling [00:12:36] Yeah.
Michael T. Mulligan [00:12:36] But that doesn’t mean that every doctor for this kind of information has a claim of that kind and so the court of appeal found that, this is the test, that it’s plain and obvious That the plaintiff’s claim could not succeed and if it meets that plain and obvious test, and what they look at if they look at like the pleadings. When you’re suing somebody, you have to set out why are you suing them, what are you claiming happened and what’s your legal basis for saying you get anything for that. And when you analyze it in that way, you just assume all the things the person is saying are true, like in their claim. Okay you say that my phone number is on there, you say my address is on there, you say there’s a review of me on there, even assuming all that’s true, there just isn’t a privacy interest in that kind of information, information that was there. And then that brought the court of appeal to the next part of it, which is that there’s a second section of this privacy act that can also make it, makes it a statutory tort to use the names of people for commercial purposes. And so there had to be analysis of what exactly does that mean and so the court of appeal did their analysis interestingly looking at things including, you know, some charter juris prudence and also looking at A common law tort, like a tort that exists in places without even the privacy act . There is a common law tort referred to as the misappropriation of personality.
Adam Striling [00:14:03] hmm.
Michael T. Mulligan [00:14:03] And so that would be for example using a person’s name, likeness or voice for the purpose of advertising or promoting goods or services or otherwise for the user’s own gain without consent. So you know let’s say somebody takes AI and creates a copy of your voice and it’s you know, “hi I’m Adam Stirling and this is my absolute favourite … Hemorrhoid medication or something you should definitely load up on it, it’s a great deal” that would be prohibited. That would be a statutory tort in addition to potentially being actionable under the Privacy Act And so the court of appeal used that analysis, that analysis of what that common law tort is to inform what is meant by the language in the privacy act . And correctly pointed out you know the Rating site on the website wasn’t trying to sell a product They weren’t Sort of using the person’s likeness saying you know doctor so-and-so says this is a great product You should buy it and you know they did acknowledge that look here there may be some financial motivation for having the website, but just like it was closer to, i think for example, like the phone book when people use the phonebook. Be sort of, yeah, I’ve listed your name and address in the doctor section of the phone book and so yes i guess there is some financial incentive to have the phone book, but that’s a different thing from purporting to use your likeness to endorse something or to sell a product. And so just like that on that first basis The Court of appeal concluded no that’s just not what’s meant by utilizing somebody’s name or names of class members for a commercial purpose. and so The once again like on that first base of the claim the court of appeal found that it was plain and obvious that this could not succeed and so on that basis They overturned the trial or the original judge’s decision to certify the class action and So there will be no claim going forward to try to shut down the doctors Rating site, assuming people are using that rather than desperately findmeadoctor.com or something about which perhaps would be More popular these days. So that is the latest from the court of appeal on the doctor rating site and Privacy
Adam Striling [00:16:24] Up next it says here Law Society discipline for a lawyer for, and I want to make sure I read this correctly, telling a client about rumors of a judge’s sexual activity in university, was overturned it says on appeal for failing to consider charter right to free expression. There Is a lot there.
Michael T. Mulligan [00:16:43] There’s a whole lot bound up in that and so here’s the starting point of it. The Law Society, like most professional organizations, have rules surrounding the conduct of members of the profession. And so there are a variety of things in the rules that apply to lawyers. They would include things like not using abusive offensive or otherwise language that would be, to communicate with others, that would be unprofessional for example and there’ll be an obligation to, you know, treat Courts and members of the judiciary with candor and fairness things like that. The rub can come, I guess, a little bit when you have communication, that’s not directly in that forum but pretty close to it. And here you’ve got your circumstances, a lawyer was apparently sharing with a client rumors about sexual activity of a judicial official, while in university, and it made it sound like it may well have been just kind of gossip, even being completely untrue. The client of the lawyer felt uncomfortable that this kind of talk was going on. The lawyer was engaging in what was described as lawyer’s locker room talk and so the client complained to the Law Society about what they felt was inappropriate communication by their lawyer about the sexual activity alleged of the judge, I guess was involved in the case.
Adam Striling [00:18:17] interesting
Michael T. Mulligan [00:18:17] The court and the Law Society conducted a review of that, and they had a hearing panel where they sort out whether somebody’s engaged in professional misconduct. And the hearing panel, and in fact the lawyer, acknowledged he said those things, the lawyer acknowledges, this was locker room talk , it was ill-advised, and the panel of the law society determined that it amounted to professional misconduct and fined the lawyer $7,500 for doing that. Well, flash forward to just a few days ago when the case wound up in the Court of Appeal and that’s the avenue of appeal from a Law Society disciplinary decision is to the Court of Appeal in BC. The basis for the appeal and I should say the Law Society, upon having this pointed out to them, by counsel for the Lawyer, who had been fined, agreed that what the panel had done was wrong in that the panel had failed to consider, the freedom of expression constitutional rights of the lawyer. And that is not to say that that kind of communication would necessarily be permissible, it may not be right it may be in violation of the strictures about unprofessional communication by the lawyer.
Adam Striling [00:19:46] mm hmm.
Michael T. Mulligan [00:19:46] In order to make that determination, it’s necessary to weigh up that professional obligation in the context of lawyers, like everyone else, have a right to free expression. And so when determining whether that sort of commentary, locker room commentary, about sexual rumors about the judge, was a mark ,you have to determine whether it was a marked departure from the conduct expected of a lawyer and in so doing they need to bear in mind that the lawyer does, like everyone else, have a constitutional right to freedom of expression. And so the panel just didn’t do that. They just didn’t follow a previous decision that spoke about that very issue, in the context of a lawyer who wrote an inappropriate, vitriolic letter to a judge, following some case. And so back it goes. There will need to be a new decision by a new Tribunal at the Law Society, and they will need to consider freedom of expression in determining whether this kind of communication amounted to professional misconduct. So that’s the latest of the court of appeal and why lawyers really ought not to be spreading rumors of that sort, for I suppose a variety of reasons, quite apart from whatever they might be constitutionally permitted to do. So that’s latest in the court appeal and the Law Society in BC .
[00:21:08] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking during the second half of our second hour every Thursday. Thank you so much Michael. Pleasure as always.
Michael T. Mulligan [00:21:15] Thanks so much. Always great to be here.
Adam Striling [00:21:17] Alright we’ll take a quick break back after this
Automatically Transcribed on October 2, 2025 – MULLIGAN DEFENCE LAWYERS