Legally Speaking with Michael Mulligan – Détails, épisodes et analyse

Can changing bail laws solve the epidemic of drug addiction and mental illness plaguing British Columbia? Join us as Michael Mulligan challenges the status quo, making the case that the province's focus on bail reform is a misstep. Instead, Mulligan argues for a more holistic approach that prioritizes comprehensive treatment resources to tackle the roots of criminal behavior. Through a critical analysis of current policies, we uncover why simply altering the bail system won't lead to a significant reduction in crime or social disorder.

In our exploration, we examine a heartbreaking case from Surrey, shedding light on the daunting decisions judges face during bail hearings. The episode delves into the difficult balance between public safety and individual rights when dealing with offenders who have violent histories and mental health issues. We scrutinize the political ramifications of public outrage over repeat offenders and discuss the need for reform in drug treatment policies, stressing the inadequacies of the current system. This conversation is essential for understanding the broader social issues at play and the real challenges in addressing crime through the legal system alone.

Lastly, we turn our attention to the complexities of inheritance laws in British Columbia, focusing on a recent contested will case that underscores the importance of fair asset distribution. Highlighting Section 60 of the Wills Estates and Succession Act, we discuss how courts can intervene to ensure just support for spouses or children, even when traditional values clash with modern expectations. This segment offers valuable insights into careful estate planning, illustrating how to prevent legal disputes and ensure that your final wishes are respected and honored. Whether you're interested in legal reform, social justice, or family law, this episode promises to be both enlightening and thought-provoking.

Follow this link for a transcript of the show and links to the cases discussed.

Ever wondered how a simple oversight can cost thousands in the legal world? Join us in this episode of Legally Speaking as we examine a pivotal case in the Canadian criminal justice system where the Crown's failure to hand over essential police notes in an impaired driving case led to a hefty financial penalty. We delve into the consequences of this negligence, including a rare ruling for costs on appeal, highlighting the critical importance of complete and timely disclosure in ensuring justice. You'll also get an insider's perspective on the high stakes involved and the potential financial fallout when legal obligations are not met.

Shifting to family law, we navigate the complexities of a traditional Iranian marriage agreement contested in British Columbia courts. Learn how the judge balanced the maher, or marriage portion, with typical family law considerations to reach a fair decision. We'll also discuss a significant civil case against a well-known coffee chain, focusing on the Occupiers Liability Act. To wrap up, we welcome Michael Mulligan from Mulligan Defence Lawyers, who offers his expert insights on the stark differences in disclosure practices between civil and criminal cases. This episode is brimming with legal intrigue and detailed analysis that you won't want to miss.

Follow this link for a transcript of the show and links to the cases discussed. 

How does a jury decide the value of the emotional and physical toll from a medical misdiagnosis? Join us as we explore a poignant case where a woman was mistakenly diagnosed with breast cancer and underwent unnecessary surgery, leading to a $400,000 jury award. We'll unravel the stringent criteria needed to hold a doctor legally accountable and dissect the often-mysterious process by which juries calculate non-pecuniary damages such as pain and suffering. This segment promises to shed light on the profound impact these legal decisions have on both patients and the healthcare system.

Shifting our focus, we then offer a deep dive into a landmark Supreme Court of Canada decision involving the rape shield provision. This case, originating from British Columbia, addresses the complex balance between protecting a sexual assault complainant's privacy and ensuring a fair trial. Learn why the Supreme Court upheld a trial judge’s decision to exclude questioning about prior consensual sexual activity in a marital case, and what this means for the admissibility of evidence in sexual assault trials. We also tackle the nuanced debate over publication bans during appeals, exploring how the courts balance transparency with privacy. Don't miss this insightful discussion on two pivotal legal issues shaping the judicial landscape.

Follow this link for a transcript of the show and links to the cases discssed. 

This week on Legally Speaking with Michael Mulligan:

Equity is a body of law that was originally developed in the English Court of Chancery. It was distinct from the common law, prior to English reforms in the 1870s. Since then, in England, and other jurisdictions with an English legal tradition including Canada, Australia, and New Zealand, equity is the origin of legal principles including the law of trust, fiduciary law, subrogation, unjust enrichment, and equitable estoppel.

A case discussed on the show involved a couple who agreed to purchase a house together but then separated.

Despite claiming that she intended to do so, the ex-girlfriend paid nothing towards the down payment, mortgage payment or any other expenses relating to the home. She was, however, listed in the land title system as an owner and she claimed that she was entitled to half the value of the house. 

In British Columbia, a central tenant of the Land Title Act is the idea of indefeasible title. This means that whoever is listed as the owner of property in the land title registry is conclusively the owner of the property. The principle makes it easier to buy and sell real estate because you can unambiguously determine who owns it. You don’t need to be concerned about who might have owned the property previously and whether someone purporting to own property has proper title to it.

In the case of the house that was registered in the name of both the ex-boyfriend and ex-girlfriend, the trial judge, and the BC Court of Appeal, both concluded that while the ex-girlfriend was the registered owner of half the house, she did so only as a trustee for the ex-boyfriend.

When someone receives something for no consideration, they have the burden of proving that the intention was for the property to be given to them as a gift. Otherwise, there will be a resulting trust and the recipient of the property if only keeping the property for the benefit of the real owner.

In addition, both courts concluded that the equitable principle of unjust enrichment also applied to the facts of this case.

Also on the show, people charged with criminal contempt relating to efforts to block logging in Fairy Creek will be permitted to argue that charges should be stayed because of alleged police misconduct.

The decision discussed involved a screening hearing to determine if the argument had sufficient merit to permit it to proceed. The judge hearing the case concluded that the argument had "at least a toe-hold in the jurisprudence" and so should be permitted to proceed. People who were not charged would not be allowed to participate in order to “air their grievances”.

Finally, on the show, the British Columbia Liquor and Cannabis Regulation Branch has been ordered to turn over documents relating to the search and seizure of 242 bottles of whisky from a restaurant.

The whisky was seized on the premise that it was purchased from a private liquor store and not the Liquor Distribution Branch.

As with other regulatory schemes, the Liquor Control and Licensing Act allows for inspections without a warrant. The legislation does, however, permit prosecutions and even jail sentences for conduct that can also be dealt with as a regulatory matter. Where a search is related to potential prosecution, a warrant is required.

In the case discussed the search operation was even named: “Operation Malt Barley”.

The documents ordered produced will assist in determining if what occurred was a regulatory inspection that happened upon the whisky, or if it was a search for the whisky that could have resulted in a prosecution.

Follow this link for a transcript of the show and links to the cases discussed.

This week on Legally Speaking with Michael Mulligan:

Two men charged with criminal contempt for breaching an injunction prohibiting interference with the construction of the Trans Mountain Pipeline plead guilty and were sentenced.

Neither man had a previous criminal record.

The first man was a 69-yead old, retired university professor. He had climbed a tree and used a bicycle lock around his neck, and cables, to secure himself to the tree in order to slow construction of the pipeline. The police used a cherry picker to remote him.

The second man was 21 yeas old. He provided no details of his personal circumstances. He attempted to use a “sleeping dragon” that was buried beside him to secure himself to the ground. He failed to properly secure himself within the device and so the RCMP were able to easily remove his hands and arrest him.

Aggravating sentencing considerations included the fact that the injunction had been in place for some time, that the men had breached the injunction in a public way, including by the conduct of media interviews.  Mitigating factors included that they neither man had a previous record and both plead guilty.

The judge pointed out that sentences for criminal contempt generally increase over time until compliance is achieved.

The 69-year-old man was sentenced to 21 days in jail, while the 21-year-old received 14 days in jail. Distinguishing factors included the time and effort to remove them and the degree to which they had publicised their breached the court order. 

Also on the show, the BC Court of Appeal overturned an award of punitive damages against an insurance company that denied a travel insurance claim and then managed to pay the hospital involved less than ordinarily billed by not telling them that that the claim had, eventually, been allowed.

The incident involved a man who purchased travel insurance before a trip to Reno. He experienced a loss of consciousness (known as a “syncope”) while drinking at a bar and fell hitting his neck. He was hospitalized for 12 days and had a pacemaker installed. The hospital bill was $293,127.60.

For two years, and with little investigation, the insurance company denied the claim alleging that it was caused by drinking alcohol, despite medical evidence to the contrary. Eventually the insurance company relented, once a court case had been commenced, and agreed to cover the claim. Without telling the hospital that they had agreed to cover the claim, the insurance company got the hospital to agree to apply an “uninsured discount” and settled with them for $47,000.

This was upsetting to the man because of the excellent care he had received from the hospital.

Insurance contracts require the insurance company, and the insured, to act in good faith. This means, amongst other things, that the insurance company must act fairly and reasonably. They must give as much consideration to the interests of the insured as their own interested.

The trial judge concluded that the insurance company had not done this and awarded $100,000 in punitive damages against the insurance company.

The BC Court of Appeal overturned this award on the basis that the insurance company eventually agreed to pay the claim and because the duty to act in good faith applies only to the insured person and not, for example, the hospital which may have been misled when it agreed to reduce its bill.

Finally, on the show, the Crime Victim Assistance Act, and how it relates to civil claims for injuries caused by criminal activity, is also discussed.

Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

As a matter of public policy, courts will not recognize a benefit accruing to a criminal for his crime. As a result, a murderer cannot collect life insurance or a gift in a will from the person they murdered.

A recent BC Supreme Court case considered how the estate of a mother, who was murdered by one of her two adult sons, should be divided.

The son, who committed the murder, had a daughter who was born 11 days after the murder.

The mother’s will provided for her estate to be divided equally between her children, however, if one of them were to predecease her, their share was to be given to their children. Failing this, the residue of the estate was to be given to two charities. 

Section 86 (1) of the Trustee Act allows the executor of a will to seek advice from a judge with respect to the administration of an estate.

As the son who committed murder was not dead, it was unclear who his share of the estate should pass to: his brother, his infant daughter, or the two charities.

One of the executors of the estate provided the judge with an affidavit indicating that the deceased mother told her that that her relationships with her sons had eroded and that she was considering changing her Will to ensure her grandchildren were provided for.

When deciding how a will should be interpreted, the paramount concern for a court is the intent of the testator at the time the will was executed.

As a result, the judge hearing the application directed that the share of the estate that would have otherwise gone to the son who committed murder should go to his daughter.

Because the daughter was only five years old, the funds will be managed by the Public Guardian and Trustee of British Columbia.

The next case discussed on the show involved an appeal by an English to Arabic translator who was convicted of defrauding ICBC by helping clients cheat on the knowledge test for their learner’s licences.

The actus reus of the offence of fraud has two elements: 1) a dishonest act and 2) deprivation.

A central issue on the appeal was whether ICBC was deprived of anything.

Relying on a Supreme Court of Canada case that involved an unsuccessful effort to fix a horse race by injecting a horse with a performance-enhancing drug, where the injected horse still came in sixth, the BC Court of Appeal upheld the fraud conviction.

The risk that ICBC could face higher costs because of unqualified drivers getting into accidents was found to be sufficient to amount to a deprivation.

Finally, on the show, an evaluation of a prototype model to promote the early resolution and management of family law cases in Provincial Court is discussed.

The Early Resolution and Case Management Model was tried in Victoria. It required people wanting to make family court application to first engage in a needs assessment and dispute resolution though a Justice Access Centre.

The result was a significant reduction in adjournments, court appearances, and time in court.

Because of significant cuts to legal aid funding several years ago, many people with family court issues do not have a lawyer to assist them. This has resulted in more court time being used as judges have struggled to assist unrepresented people with complex family law issued.

The needs assessment and dispute resolution rules are an attempt to alleviate some of this.

Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

More than 400 people are being prosecuted for criminal contempt arising from alleged breaches of an order from the BC Supreme Court that prohibits people from obstructing logging at Fair Creek. 

This has resulted in some logistical issues with large numbers of accused people requiring legal advice prior to entering pleas and fixing dates for trial or sentencing.

Following the Stanley Cup riots, Legal Aid BC developed a mass arrest policy to facilitate the provision of legal advice to large numbers of accused people.

Both the initial court appearances and the provision of summary legal advice are occurring by phone or video connection because of COVID.

For accused people who qualify for legal aid, Legal Aid BC has suspended choice of counsel and is assigning cases to one of a team of lawyers who are defending groups of people, based on the day they were arrested.

The Rainforest Flying Squad has apparently been using donated money to pay for lawyers only for accused people who are black, indigenous, or people of colour. Other accused people, who can’t afford a lawyer, are being left to seek help from Legal Aid BC.

Trial dates are being set for 5 days each and will be comprised of all the people arrested on each day. This will permit common evidence concerning what occurred each day to be heard by the judge once for the relevant group of accused people.

In BC there are a substantial number of prior criminal contempt sentencing cases because of previous unlawful protest activity. Based on factors that influenced prior cases, Crown Counsel has developed a formula for what kind of sentences they will ask for if an accused person pleads guilty.

While the judge will ultimately decide what sentence to impose if someone pleads guilty, the Crown sentencing position is determined by factors including:

1)When the person engaged in criminal contempt. In this regard, previous cases have made clear that sentences are to increase over time until compliance is achieved.

2)When someone pleads guilty. In this regard, the Crown’s position on sentence increases as time passes to encourage people to plead guilty earlier. There may be some issue with the approach being taken by Crown in this regard because the rate at which their suggested sentence increases is more than what courts would ordinarily engage in.

3)Whether the person used a device to avoid being removed from the road and how complex the device was. Earlier cases have indicated this is a factor in sentencing.

While, in the past, protests that have constituted criminal contempt largely people standing passively on the road, 84% of the Fairy Creek accused were using devices of various kinds to make their removal more difficult for police. This has resulted in the Crown seeking jail sentences for many more accused.

Many of the accused people have been surprised to learn that they may be facing jail sentences as they were led to believe this wouldn’t be the case.

Also on the show, a defamation case, from Port Alberni, is discussed. The case involved the director of a non-profit literacy society defaming two employees of a non-profit society that assists homeless people.

After being served with notice of the civil claim, the defendant director only appeared in court briefly, once, and didn’t otherwise show up or hire a lawyer to defend the case. This resulted in a $345,000 judgment.

The defendant non-profit society was unsuccessful in its application to set aside the judgment.

Follow this link for a transcript of the show and links to the cases discussed.  

This week on Legally Speaking with Michael Mulligan:

The first case discussed on the show involved three First Nations Children who were brought to BC from Saskatchewan to live with their grandmother. The parents of the children were unable to care for them because of ongoing alcohol and substance abuse.

Shortly after they arrived the grandmother found marijuana in the effects of one of the children who was a nine-year-old girl. The girl clearly had a very challenging background. The judge found that she had “extensive knowledge about drugs (for a 9 year old girl) of multiple varieties, including how to consume them and disclosed seeing people do bumps and lines of cocaine and exchange money for drugs.”

While the grandmother had attended 16 court appearances concerning the children and made clear that she was willing to care for the children if their parents fell back into addictions, she was not applying to become a guardian for the children.

Because the grandmother wasn’t applying to become the children’s guardian, the Director of Child, Family and Community Service opposed her becoming a formal party to the court proceedings concerning the safety of the children.

Despite this opposition, the judge hearing the case relied upon 2021 changes to the Interpretation Act that require legislation to be interpreted in a way that is consistent with the Declaration on the Rights of Indigenous Peoples Act. This legislation is based on the United Nations Declaration on the Rights of Indigenous People.

Because of the principles in this legislation, the judge found that the grandmother should be able to participate in the court proceedings concerning her grandchildren even though she wasn’t asking to become their guardian.

Also on the show, the ongoing negotiations between the Crown Counsel Association and the Provincial Government are discussed. The Crown Counsel Association represents Crown Counsel who are responsible for the prosecution of criminal charges in BC.

The central issue in the negotiations involves the continuation of a salary agreement that linked the salary of Crown Counsel to the salary of Provincial Court Judges.

Provincial Court Judges have a process to set their salaries that is intended to be independent of government because the judges make decisions involving the government.

On multiple occasions, the Provincial Government has interfered with the independent process to set the salaries for Provincial Court Judges because salary increases for the judges would impact what Crown Counsel are paid.

In 2000, the Crown Counsel Association had a short strike during salary negotiations, which they called a “study session”. During this time several criminal cases were dismissed for want of prosecution. Some of these dismissed cases were later appealed and one of the appeals is discussed on the show. On appeal, the judge hearing the case concluded that a case can’t be dismissed for want of persecution unless the accused person is first asked if they wish to plead guilty or not guilty.

The Crown Counsel Association has been running radio ads raising the prospect of senior Crown Counsel leaving for private practice.

Finally, on the show, a case involving a father who quit his job due to a claim of stress, nine days after a child support order was made is discussed. This was not found to be a basis for reducing the father’s child support obligations or cancelling arrears that had accumulated. Both parents are required to support their children financially and the amount will be determined based on what they could earn, not what they do earn.

Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

The Provincial Court in British Columbia handles 95% of criminal cases, as well as many family law cases, youth, small claims, and ticket disputes.

The 2020 / 2021 annual report from the court is discussed on the show. Significant changes during this time include that 77% of all appearances in Provincial Court were technology-enabled: at least one party appeared remotely.

To facilitate the COVID-19 motivated increase remote appearances, the court spent an extra $442 thousand dollars on information technology systems. This was, however, more than offset by a $1.4 million savings on travel costs. Without the increased capacity to handle remote appearances, judges, court clerks, and others spent more time and money travelling.

An example of technology-enabled appearances that began prior to COVID, but has expanded in response if the Justice Centre which uses telephone and video conferencing to connections to permit judicial justices to conduct bail hearings and to review search warrant applications. In 2020 / 2021 the Justice Centre handled 17,682 bail hearings and 24,803 search warrant and production order applications.

Also on the show, the Supreme Court of Canada considered a case involving a warrantless strip search.

To arrest someone for a criminal office, without a warrant, a police officer must have reasonable grounds to believe they committed a criminal offence. An arrest on this basis also permits the officer to search the person, and their surroundings, for weapons, means of escape, and evidence of the offence for which the person is being arrested. Typically this will take the form of a pat-down search.

To conduct a more intrusive strip search, the police officer would also need to have reasonable and probable grounds to believe that such a search would reveal a weapon, means of escape or evidence of the office for which the person is being arrested. The strip search must also be conducted in a reasonable way. This would ordinarily mean in a location that can afford privacy.

In the case discussed, the search was found to be reasonable because when the accused person was being arrested for drug trafficking their pants were partially down and the officer saw the accused reaching towards the back of his pants. A strip search revealed drugs concealed in and around the accused person’s buttocks.

Finally, on the show, a 6-year sentence for a man convicted of possessing fentanyl and carfentanil, in Nanaimo, for the purpose of trafficking, is discussed.

While the man plead guilty, the case involved a “Gardiner” hearing, which takes its name from a Supreme Court of Canada Case: R. v. Gardiner. This is a hearing, as part of a sentencing hearing, where there is a dispute about an aggravating or mitigating fact.

In this case, the accused was found with a bag containing more than $20,000 and a large quantity of drugs. The accused man was homeless: sleeping in parks and eating at soup kitchens. His evidence on the Gardiner hearing was that he was not the owner of the cash and drugs but was rather holding the bag for a higher-level drug dealer in anticipation of receiving some drugs in return.

The judge found that the Crown had not proven that the homeless man was the owner of the money and drugs but that, despite this, his moral culpability was high because the drugs were so dangerous. The homeless accused man testified that he had known many people who died of drug overdoses.  As a result, a six-year jail sentence was imposed.

Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan: 

The BC Court of Appeal allowed an appeal by Teal Cedar extending an injection against people attempting to physically prevent the company from logging.

The original interim injunction was not renewed by a judge because of concerns with respect to how the RCMP was enforcing the injunction and the fact that the conduct of the people attempting to physically prevent logging also constituted criminal offences that could be prosecuted without an injunction. 

In allowing the appeal, the BC Court of Appeal held that the fact conduct may also constitute a criminal offence is not a reason to deny an injunction application. The reason for this conclusion was that someone who is applying for an injunction to prevent unlawful conduct does not have control over whether the police or provincial Attorney General will exercise their discretion to arrest and prosecute.

The court pointed out that, in the past, the BC Attorney General adopted a policy not to prosecute people who were unlawfully obstructing logging. The availability of an injunction permits a remedy that is not subject to political or other considerations. 

Injunctions also permit more specific prohibitions, such as exclusion zones, that are not available pursuant to the criminal law except in the form of release conditions for people already charged with a criminal offence.

With respect to concern over the conduct of the RCMP when enforcing the injunction, the decision makes clear that the RCMP and the court are separate entities. Issues with respect to RCMP conduct can be raised while defending a charge of criminal contempt and are not a basis for denying an injunction. 

Finally, the BC Court of Appeal made clear that courts do not determine if the public policy with respect to logging is appropriate and that the protesters who were attempting to impose their will by force were abandoning the democratic process:

• [76]         It is not tenable in a democracy for a group to abandon the democratic process and impose their will on others by force. In a complex, pluralistic society, the democratically-elected government makes laws, and the courts interpret and uphold them. Barring constitutional overreach, the laws and decisions flowing from them are to be respected and enforced.

Also, on the show, a dispute between a strata corporation and a property developer concerning payment for a shared electric car is discussed.

As a proposed amenity for the building, a shared electric BMW was offered. To facilitate this the property developer leased the car and had the strata corporation take over responsibility for the lease.

At the time this was arranged the developer also controlled the strata corporation as the units in the building hadn’t been sold yet.

Once the new owners of the units took over management of the strata corporation they objected to having to pay for the car. They raised various unsuccessful arguments about not having been told about the arrangement, and not having voted on it.

Ultimately, the strata corporation was ordered to pay the developer for the costs associated with terminating the lease for the BMW.

Follow this link for a transcript of the show and links to the cases discussed.