When Indigenous Identity Emerges After Sentencing
A guilty plea, a forgotten past, and a courtroom test of how identity meets justice. We open with a 2011 assault case resolved by a joint submission: an 18‑month conditional sentence after the accused conceded his force exceeded self‑defence. Years later, he discovered his father was Indigenous and obtained status, then sought an out‑of‑time appeal to revisit both plea and sentence. We walk through the legal gatekeeping for late appeals—intention, prejudice, merit, and the interests of justice—and unpack why section 718.2(e) and the Supreme Court’s Gladue jurisprudence require more than ancestry alone. Without a Gladue report or concrete evidence tying personal background to the offence and sentence, the Court of Appeal found no basis to disturb a non‑custodial disposition, underscoring the balance between individualized justice and finality.
Then the floor drops out on a modern confidence game. A Victoria woman was lured by “1% per day” crypto returns, saw early profits, re‑mortgaged her home, and pushed $671,000 through a cryptocurrency exchange to a third‑party wallet. Could the exchange be liable in negligence? We break down duty of care, standard of care, causation, and damages, and why the court concluded the platform did everything a reasonable exchange should: prominent written warnings, live calls from staff and a supervisor urging her to stop, risk scoring on the destination wallet, and documented customer pressure to proceed. The claim failed, and the case now stands as a sharp warning about irreversible blockchain transfers and the psychology of fraud.
If you care about Canadian criminal law, Indigenous sentencing principles, or investor protection in crypto, this story delivers practical takeaways: build a real record for Gladue considerations; treat “guaranteed” returns as a red flag; and know that platforms can warn you, but they can’t always save you. Like what you heard? Follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal analysis that cuts through the noise.
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 Oct 23, 2025
Adam Stirling [00:00:07] Join Michael Mulligan from Mulligan Defence Lawyers, it’s Legally Speaking on CFAX 1070. Afternoon Michael, how are we doing?
Michael T. Mulligan [00:00:07] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:09] Interesting stories on tap for today. It says an application for an extension of time to appeal a guilty plea in a sentence imposed back in 2011 after the appellant, it says here, or appellant, discovered he was Indigenous in 2022, was dismissed. What happened here?
Michael T. Mulligan [00:00:27] Well, it’s what the background of it is this. So back in 2011, this fellow was charged with assault causing bodily harm, or he pled guilty to assault causing bodily harm. The background of the particular offence, he was on a bus with somebody previously had some, I guess bad dealings within the past, they were arguing on the bus. The other bus passenger and he got off, the other person followed him, and the accused pulled out a jack knife from his pocket and stabbed the person four times in the chest, armpit, and forearm. Happily, he survived. But that was the basis of the original charge. And ultimately after some machinations in court, he agreed to plead guilty on the basis that the amount of force he used, if it was for self defence, was excessive. And that perhaps was no surprise given that during the course of a police interview he told the police that while he believed he was acting in self defence, he said he could have stopped after stabbing the person once, but he had to hold his ground. That was his explanation. Anyways, if you’re using force for self defence, it’s got to be reasonable.
Adam Stirling [00:01:40] Yeah.
Michael T. Mulligan [00:01:40] And that comment probably took it outside that realm. So he wound up pleading guilty back in 2011, and his lawyer who’s represented by counsel, came to an agreement with Crown and there was what’s referred to as a joint submission where the crown and the defence agreed in terms of what sentence should be imposed, and they agreed on an 18-month conditional sentence, like house arrest, basically, where somebody could be let out to go to work or things like that. And the man served his sentence back in 2011, starting in 2011, and then nothing more happened until recently, but in 2022 the man realized he found out for the very first time that his father was Indigenous.
Adam Stirling [00:02:27] Hmm.
Michael T. Mulligan [00:02:28] And he, after learning that information, he applied himself for status, and it looks like he got that. And that brings us to the interesting grounds of appeal here. The first part of which is an application for an extension of time to appeal. Because ordinarily if you want to appeal either a conviction or sentence, you need to do that within thirty days, right. You can’t just wait a decade and appeal later. And so here the man applied for an extension of time to appeal both his guilty plea and the sentence that was imposed, even though he had served all of it, and his argument for doing so was that he had discovered this fresh evidence in 2022 that he was in fact indigenous, and his argument was that as a result of some provision of the criminal code at 718.2, which says this, I’ll just read that to you so that’s aware of that.
Adam Stirling [00:03:31] Yeah, yeah.
Michael T. Mulligan [00:03:32] 718.2 (e) says this. “All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community, should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. ” So the criminal code has a specific provision dealing with the sentencing of Aboriginal offenders. And that provision has been considered and interpreted by various courts, including the Supreme Court of Canada in a famous case called Gladue.
Adam Stirling [00:04:03] Yeah.
Michael T. Mulligan [00:04:03] From 1999 that speaks about sort of why that is and how that should be interpreted. And the concept there is that there should be consideration given to things like unique systemic background and factors that might have brought an Indigenous person to court, and the underlying concern that Indigenous people are massively overrepresented in the prison population.
Adam Stirling [00:04:32] hmm.
Michael T. Mulligan [00:04:32] And so that’s the rationale for the that provision and why it is that indeed an Indigenous person might receive a different and lower sentence than somebody who was not Indigenous, taking into account their background. And so this man’s argument was, well, look, had I known that I was indigenous back in 2011, his argument was that he could have been treated in a completely different fashion. He suggested that he may not have chosen to plead guilty, and that the sentence that would have been imposed back in 2011 could have been different and less than what was indeed imposed when they did not know that he was Indigenous. And so it brings into rather sharp relief the issue of like, well, how you know, how should sentences work for somebody who’s Indigenous and not Indigenous, that interesting fact matter of somebody not knowing that they were Indigenous. And in fairness to him as well, in terms of the argument, there is also some authority for the proposition that you know, where you can have a circumstance where somebody, for example, is you know not aware of their indigenous background, if you know somebody thought you know, family thought they shouldn’t tell a child or for some reason thought it was better not letting them know that, that can be even a consideration in terms of sort of loss of cultural identity and a consideration as well as part of that sentencing process. And so that’s the fact pattern. And the case wound up in the Court of Appeal is actually the second layer of appeal. And the first thing that the judge had to consider, the Court of Appeal, was the test for an extension of time to appeal. Because as they mentioned earlier, if you want to appeal, you’re supposed to get on with that and give a notice of a you plan to appeal within thirty days. And the list of traditional things to be considered there include did the person have an actual intention to appeal before the thirty days ran out? You know, like sometimes that happens and a person’s like, well, they’re just in prison and they can’t get to the paper required to file the thing or don’t have a stamp or something. You wouldn’t want to deprive them of an appeal if they wanted to but couldn’t. Did they inform the crown of their intention to appeal? That could be a factor, right?
Adam Stirling [00:06:47] Yeah.
Michael T. Mulligan [00:06:47] Was there any prejudice to the crown as a result of not doing it in time? Importantly, is there any merit to the appeal, right. And then finally a broad consideration about whether it’s in the interest of justice to extend the time to file your notice of appeal. So that was the that’s sort of the intellectual legal framework in which this fellow’s application was being considered. And the Court of Appeal pointed out here, significantly, that while it is true that that provision of the criminal code does require specific attention to the circumstances of Aboriginal offenders when imposing a sentence. The Court of Appeal first of all pointed out that the man did, in fact, receive a non-custodial sentence. It was a house arrest, but he was not sentenced to an actual jail sentence at the time as in one that would have to be served in prison, based on this joint submission that his lawyer came to. He was represented by counsel at the time he entered the guilty plea. And as well the Court of Appeal pointed out that the man had not prepared what is referred to as a Gladue report, which is something named after that case that I mentioned, that sort of seminal Supreme Court of Canada case about sentencing of Indigenous offenders.
Adam Stirling [00:08:07] Yeah.
Michael T. Mulligan [00:08:08] And a Gladue report is something which would be prepared that would look at things like the person’s background or systemic factors that might have led to somebody’s offending, for example. Like some of the many of those things are genuinely tragic when you read them, right? You wind up with circumstances like, you know, somebody who had just deprivation as a child, or they may have had fetal alcohol syndrome, or they may have had disrupted home environment, all sorts of background, which unfortunately is too common for Indigenous people. But he had not provided that sort of information. His argument was look, I’m Indigenous, so I should have received I didn’t know that, and because that wasn’t known, it meant that I it wasn’t sentenced appropriately at the time. And the court pointed out that the mere fact of being Indigenous is not a basis for an adjustment in sentence. There has to be some tethering of that to those sort of legitimate considerations which are spoken about by the Supreme Court of Canada in that Gladue case, and he hadn’t had that sort of report prepared and there’s no information about that. And the court pointed out that, you know, while this fellow is they described as understandably angry that he wasn’t made aware of his indigenous status until his mid-thirties and he was upset that had he known that earlier he might have benefited from societal or financial supports or other things that could have made his life easier during that time period and he didn’t have those things because he didn’t know about his background. That there was no basis here to conclude that the sentence that was imposed was inappropriate or that the fact that neither he, nor his lawyer, nor the judge who imposed the conditional sentence, you know they didn’t know about his background. There’s no indication that the sentence is inappropriate or given the lack of any information about how his background impacted him that it would have had any impact at the time. And so as a result of all of that, the Court of Appeal, as the BC Supreme Court did, denied his application for an extension of time to appeal the sentence that was imposed. Pointed out that the man is pursuing other remedies including apparently a civil action against his parents and against vital statistics for some reason. It it’s unexplained in the decision why it was he didn’t know that his father was Indigenous until he was in his thirties.
Adam Stirling [00:10:36] hmm.
Michael T. Mulligan [00:10:36] But apparently the man is suing his parents and others trying to get some compensation for things that he might have missed out on as a result of not being aware of his Indigenous status at an earlier time. So a very interesting, very recent case from the BC Court of Appeal that covers a whole lot of ground there just in terms of sentencing of Indigenous offenders and how that can be different. And also that issue of, you know, can you come along many years later and ask that there be some change to what was imposed when you somebody finds out later, they’re Indigenous and that was unknown at the time. So that’s the latest from the Court of Appeal on Indigenous offenders and out of time sentence appeals and how those relate to that provision in the criminal code 718.2.
Adam Stirling [00:11:23] Legally speaking on CFAC1070 with Michael Mulligan will continue right after this.
[00:11:28] COMMERCIAL.
Adam Stirling [00:11:28] Back on the air here with CFAX1070, Michael Mulligan with Mulligan Defence Lawyers. Up next, Michael, it says a crypto trading platform not liable for over $670,000 lost due to a scam. What happened?
Michael T. Mulligan [00:11:42] Well, this is a Victoria case and it’s interesting both for the outcome and I think also important for listeners to be generally familiar with this particular scam, so they don’t wind up in a similar position. And the background here is that a woman, in Victoria, described in the judgement here as befriended someone she cannot, was befriended by someone she cannot name, probably online, if you have to guess that. And this new friend persuaded her to initially invest money in cryptocurrency. In this case it was a cryptocurrency called Ethereum, sort of competitor for Bitcoin.
Adam Stirling [00:12:21] Hmm.
Michael T. Mulligan [00:12:21] And originally, she provided to this friend relatively small amounts of money, but five hundred dollars and a thousand dollars, and the new mysterious friend returned the money, the cryptocurrency, along with generous returns, which caused her to have trust in this person. And she got returns that amounted to 1% per day, so a very substantial return when you add that up.
Adam Stirling [00:12:48] Wow.
Michael T. Mulligan [00:12:49] As the judge pointed out right at the beginning of her judgement, she said if an investment proposal sounds too good to be true, it probably is. And so the friend, having built up trust in that way, then the persuaded the woman to take out further money and deposit it into a cryptocurrency exchange, which is real, like a company that does cryptocurrency transfers and so on. And that’s the entity which ultimately is getting sued in this case. And that cryptocurrency sort of exchange company, the woman eventually deposited a total of $671,000 into that. Money which she raised by remortgaging her home and borrowing money from a friend and put all of this money into this cryptocurrency account, and then proceeded to try to transfer the money to this wallet of the mysterious friend she’d made who was giving these great returns on the smaller amounts of money. Now this then brings us to the issue of who can be responsible for what everyone can tell is coming in this case, right. Is there any obligation on the cryptocurrency exchange company, right, to stop this kind of fraud?
Adam Stirling [00:14:11] Yeah.
Michael T. Mulligan [00:14:12] And there is a legal test for that, and it’s born out of the general principle of the idea of negligence. And in order to succeed, if you’re suing something like a bank or a cryptocurrency exchange for negligence, you need to, the plaintiff needs to establish a number of things. They’ve got to show that that person that you’re suing, or entity owed you a duty of care. You have to show that the conduct of the person you’re suing fell below the standard, standard of care, for somebody who does owe you a duty of care, so is that concept of standard of care and duty of care. You then have to show that you sustained damages and that the damages were caused by the defendant’s breach of their duty. That’s the broad, those are the broad principles. And for financial institutions, that those things are and for example, if you’re suing a bank, the standard there would be did the banker exercise a standard of care of a reasonable banker. So it doesn’t require perfection, but there has to be sort of reasonable care taken by an entity like that. And there are cases that do stand for that proposition. Like a bank owes its customers a duty to exercise reasonable care and skill, discharging their obligations to their customers. And there’s also law, in BC, that suggests that where a bank or another financial institution would cover these kind of currency exchanges, where they have where they are aware of unusual circumstances, like money being transferred in a way that’s sort of out of accordance with the kind of account or purpose the person in an account for, or you know, the amount of money being transferred was the very large in some contexts, right, or there was something odd about the conduct of the transaction or the bank had knowledge of similar scams targeting similar demographics. There can be circumstances where a financial institution does owe a duty of care, and if they fell below the standard of a reasonable, you know, banker or cryptocurrency exchange, there could be liability there.
Adam Stirling [00:16:14] Yeah.
Michael T. Mulligan [00:16:15] So that’s what she was arguing, is well, this is the fault of this cryptocurrency exchange. They should not have allowed the allowed her to ultimately transfer the $671,000 to her new mysterious friend’s cryptocurrency account. But here was a very considerable amount of evidence about efforts the cryptocurrency exchange made, much to their credit, I’ve got to say, to try to stop her from doing this. First of all, the cryptocurrency exchange complied with all like the thin track requirements for you know financial tracking of proceeds of crime, that kind of thing.
Adam Stirling [00:16:53] Yes.
Michael T. Mulligan [00:16:53] And before they even allowed her to sign up, they sent a general warning to her and anyone else who’s signing up, telling them don’t send cryptocurrency to untrusted wallets, can result in permanent loss of funds, warning people in a general way about cryptocurrency scams and you know, don’t respond to unsolicited messages and so on. And she acknowledged she read all of that and clicked, I accept. Fair enough, I guess every agreement anything you sign up for these days will have a bunch of warnings.
Adam Stirling [00:17:21] Yeah.
Michael T. Mulligan [00:17:21] But not just that. When she went to do something, a secondary written warning was sent to her telling her that, you know, if you transfer funds in this way, it’s irreversible and the exchange is not liable for your losses, and she got that as well. Furthermore, when she tried to transfer all this money, a diligent employee at the cryptocurrency exchange took the time to call her and warned her that she is likely being scammed.
Adam Stirling [00:17:44] Wow.
Michael T. Mulligan [00:17:44] And she should not proceed with the transaction. So an actual human call telling her don’t do this, which was recorded. There’s then a follow-up call from a supervisor telling her again, don’t do this.
Adam Stirling [00:17:58] Wow.
Michael T. Mulligan [00:17:58] It looks like a scam. And that one was recorded. The woman said agreed that that was her voice but claimed somehow that it wasn’t a complete recording, although she couldn’t recall what was missing from it. Then the woman in response to this third, this extra call from the supervisor telling her don’t do this. She told the supervisor in the recording she knew what she was doing, no one could control her, and that she’d been trading for over twenty years, she understood the risks of trading cryptocurrency, and then she threatened to sue the cryptocurrency exchange if they didn’t complete the transaction promptly.
Adam Stirling [00:18:33] On tape.
Michael T. Mulligan [00:18:33] She did it in writing.
Adam Stirling [00:18:35] Okay.
Michael T. Mulligan [00:18:35] Yeah. Both in the call and then follow up multiple email messages threatening to sue if they didn’t hurry up and complete this transaction.
Adam Stirling [00:18:47] hmm.
[00:18:47] And so eventually, despite their various efforts to tell her don’t do this, she insisted. And upon being threatened and told repeatedly in writing and personally, they did it. The cryptocurrency exchange did what she demanded they do. And so the cryptocurrency exchange sent the six hundred and seventy, whatever it was, thousand dollars or mortgage money and money from the friend off to the cryptocurrency wallet of the unknown per friend that she’d met, and that was gone. And so as a result of all of that, you know, well, the judge said, yes, there is a duty of care owed here. Certainly, what the cryptocurrency exchange this in that did in this case met the standard of care of a reasonable cryptocurrency exchange, telling her repeatedly, stop, stop, stop, this is a likely scam, it’s a likely scam. She argued that they should have been even clearer telling you, telling her that they knew this was a scam, account was a scam. But again, the cryptocurrency exchange, they actually had in place some sort of technical program to try to determine whether the risk associated with different cryptocurrency accounts might be. So they’re obviously doing some things here.
Adam Stirling [00:19:57] Yeah.
Michael T. Mulligan [00:19:57] And the particular wallet she was trying to transfer the money to had a score that didn’t indicate it had previously been flagged for fraudulent activity. And that wasn’t challenged. And so the cryptocurrency exchange position at this trial and judge accepted was they just they didn’t know that this was a scam. They didn’t know that account is a scam account, but all signs were pointing to that, and that’s why they kept telling her stop, stop, stop, stop, stop, stop, and she wouldn’t listen. And so even though there was a duty of care, they met it here. It looks like in spades with all these efforts to tell her to stop. And so the claim was dismissed. Not surprisingly, I don’t think on that fact pattern, and now there’s been costs awarded against her for having unsuccessfully sued the cryptocurrency exchange. So there’s several important things wrapped up in all that. There can be a duty of care, obviously, this company was doing its best to try to stop her, but it’s also an example of somebody who, you know, you start getting dollar signs in your eyes, because you saw look at getting one percent every day, and look, they gave me this money back at the beginning. Somebody’d be just very, very tempting to try to continue with that. And as the judge said, if investment proposal sounds too good to be true, it probably is. And so this isn’t going to be an isolated thing. As they said, this is a Victoria case. And so if you’re contacted with this kind of an investment opportunity by somebody, even if you think, oh, look, they’ve come through with these amounts I’ve previously provided, that does not mean that eventually once they’ve hooked you. You’re going to get your money back with the big, promised returns. So very terrible stories. She’ll be left with a big mortgage on her home and money to her friend, but it’s not the cryptocurrency exchange’s fault. And so when you do these things, don’t assume there’s going to be somebody there to catch you. So that’s the latest on cryptocurrency scams right here in Victoria.
Adam Stirling [00:21:47] Michael Mulligan with Mulligan Defence Lawyers. Legally speaking, thank you so much, Michael. Pleasure as always.
Adam Stirling [00:21:52] Thanks so much. Always great to be here.
Adam Stirling [00:21:54] All right, quick break. News is next.
Automatically Transcribed on October 28, 2025 – MULLIGAN DEFENCE LAWYERS