Courtrooms, campus corridors, mountain slopes, and border tarmacs: we connect them through three rulings that change how you navigate rights, rules, and risk. We start with a Vancouver Island University protest case where banners, ladders, and megaphones escalated into disruptions of exams. The student fought a two‑year suspension, arguing misidentification, unfair process, and—most ambitiously—freedom of expression under the Charter. We walk through why the court said no, revisiting Dolphin Delivery and the baseline that the Charter restrains government, not institutions acting independently. In BC, universities aren’t automatically treated as government actors, so Charter arguments usually fail unless legislation compels the action. The practical takeaway is clear: campus discipline lives under university policy and administrative law, not constitutional guarantees.

Then we climb into the backcountry with a Wildlife Act prosecution that turned on what “full curl thinhorn ram” actually means. Is it age, horn length, or both? At trial, experts wrangled over true versus false annuli, and the hunter was convicted. On appeal, the court read the regulation’s “or” as a real alternative: either eight years as proven by annuli or a horn tip that extends beyond the nose bridge plane when viewed squarely from the side. That interpretation aligns with field reality, where counting ridges through binoculars is guesswork. For hunters, this sets a safer path: document the side view and horn tip position to meet the length criterion without winning a lab fight over annuli.

We land with a hard deadline at the border. A sniffer dog allegedly damaged a multi‑million‑dollar helicopter during a customs search. The owner complained immediately and filed a claim, but the later lawsuit missed a little‑known limit: the Customs Act requires claims within three months. The court enforced the clock and dismissed the case, even while acknowledging the fairness concerns. If border searches damage your property, act fast—document everything, get estimates, and file in the correct court before the window slams shut.

Want practical law without the jargon? Press play for a grounded guide to: when free expression stops at the campus gate, how one word in a regulation can flip a conviction, and why a hidden limitation period can decide your whole case. If this helped you spot risks early, follow the show, share it with a friend, and leave a quick review telling us which case hit home.

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

A 76-page justice overhaul just landed, and we’re diving into what actually changes for victims, accused persons, and the people who keep our courts running. We break down how Bill C-16 reframes parts of criminal law—naming femicide as a route to first-degree murder, tackling AI-generated intimate images and deepfakes, and defining coercive control—while asking the hard question: can an already stretched system carry the weight?

We walk through the new femicide framework and why proving patterns of coercive or controlling behaviour will demand careful evidence and clear jury instructions. Then we turn to the digital front: offences targeting realistic AI fabrications, “nudify” apps, and the spread of synthetic sexual content. You’ll hear how the “likely to be mistaken” standard may hinge on context, labelling, and expert testimony, and why enforcement will test both legal doctrines and tech literacy.

Delay is the thread that ties it all together. We explore how pretrial screening in sexual offence cases—lawyers for complainants, notice periods, and multiple hearings—slows trials, and how C-16’s timing tweaks may help at the margins but won’t replace the need for more judges, Crown, defence, and courtrooms. On sentencing, we unpack the shift that lets courts set aside mandatory minimums when they would be grossly disproportionate for the individual—fairer outcomes, but likely more litigation. We also highlight humane changes that support witnesses, including broader remote testimony and support animals.

To ground the legal theory in real life, we close with a BC case on who qualifies as a spouse under the Family Law Act. The two-year marriage-like rule sounds simple—until on-and-off relationships, shared business ties, and disputed “gifts” like a six-figure SUV enter the picture. The result is a cautionary tale about continuity, documentation, and the legal weight of domestic arrangements.

If you care about safer communities, fair process, and workable courts, this conversation maps what’s coming—and what still needs funding and focus. If the analysis helped, follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal content.

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

A seven‑month marriage sparked on a sugar‑arrangement site, a $12,000/month support bid, and a dog named Frankie—this one has layers. We open with a candid walk‑through of interim spousal support: what it’s for, how courts weigh “capacity to pay,” and why selling capital assets to fund an opulent lifestyle isn’t the same as earning income. The applicant’s luxury‑level budget meets judicial scrutiny, while the respondent’s push to impute escort income and point to family wealth hits legal limits. The end result—$4,000/month plus a retroactive lump—shows how judges balance short marriages, realistic needs, and the difference between lifestyle and income.

Then the plot thickens. A same‑day, ex parte protection order leads to disputed removals from the home and a tussle over Frankie. We unpack how BC’s Family Law Act treats companion animals: not as handbags, but through factors like who provided care, safety concerns, and well‑being. On an interim basis, Frankie stays put—illustrating how courts separate urgent stability from final outcomes and insist on full candour when seeking protective relief.

The second half pivots to evidence law and a rare rebuke: the province sought a lifetime ban on a man from a welfare office, relying on an internal incident report as a “business record.” Both the trial court and the Court of Appeal said no. We explain why “ordinary course of business” demands reliability—think automated receipts and bank statements—not a narrative drafted post‑incident for litigation. Even beyond admissibility, the appellate court flags proportionality: a permanent injunction is an extraordinary remedy, not a default response.

If you care about how courts actually draw the line between income and spending, how interim orders stabilize without deciding the future, how pet custody really works, and when business records are admissible, this conversation is your blueprint. Listen, share with a friend who loves law done plainly, and leave a quick review to help others find the show.

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

Ever wondered about the potential pitfalls of inadequate paperwork and the enforceability of oral agreements? Well, buckle up! We've got Michael Mulligan, a seasoned Barrister and Solicitor, guiding us through some intriguing legal scenarios that just might make you rethink your decisions. We unpack a fiery dispute between two brothers over their mother's estate, a testament to the importance of arranging your affairs properly. The concept of consideration, joint tenancy and how your decisions could impact your family after you're gone are just a few things we'll be dissecting.

But that's not all. We're also diving into the complex world of conservation law, examining a case where UBC's housing development plans hit a snag due to an unanticipated obstacle - an eagle's nest! As we delve into the case, we highlight the intricacies of conservation efforts. Also on the menu is a discussion on the power and responsibility of the provincial legislature in maintaining smooth local governance. We're putting the spotlight on a recent case in Alberta, where a dysfunctional city council had to be ousted by the provincial government. So, join us as we navigate these riveting legal landscapes with our expert guide, Michael Mulligan.

Follow this link for a full summary of the episode, a transcript and links to the cases discussed. 

We start the episode by discussing the federal government's attempt to ban various plastic items. The ban was met with constitutional challenges from the Responsible Plastic Use Coalition and two provinces, Alberta and Saskatchewan. The federal government tried to classify plastic as 'toxic', a categorization that was deemed unreasonable by the judge due to lack of evidence. Furthermore, the government's jurisdiction to regulate garbage and related matters was questioned, as it falls under provincial jurisdiction. This situation offers an insightful glimpse into the power struggle between federal and provincial governments and the limitations of criminal law power.

The episode then moves on to the government's mounting attempts to gain more control over the legal profession. We spotlight a recent case where the federal government tried to compel lawyers to report their clients' transactions to the tax department. This move raises alarming questions about the independence of the legal profession and the sanctity of client-lawyer confidentiality. The episode highlights the efforts of law societies across the country to push back against such government intrusions.

This attempt to force lawyers to turn information over to the government about their clients is an example of why the BC government's proposal to take further control over their regulation of lawyers as part of a "Single Regulator" system is so problematic. 

The last segment of the episode dives into the intricacies of wills and estates, spotlighting a case where a woman passed away without completing her will. The case underlines the importance of having a will in place and the legal repercussions that follow when one isn't. A related case, where a judge validated a woman's wishes for her estate as expressed in a letter, underscores the importance of intent and reasonable action in such scenarios.

Overall, this episode provides a fascinating journey through the legal world's crossroads with societal issues. With expert insights from Michael Mulligan, it serves as an invaluable guide to understanding some of the most complex and contemporary legal challenges of our time.

From understanding the legal and constitutional implications of a plastic ban to the complexities of estate planning and government intrusion into the legal profession, this episode offers an enlightening deep dive into the labyrinth of the law. Whether you are a law enthusiast, a practicing lawyer, or a curious listener, this episode is sure to broaden your understanding of the intricate dynamics of the legal world.

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

In our recent podcast episode, we delved deep into the complexities of the British Columbia (BC) Constitution Act, focusing on the potential reasons a member of the legislative assembly (MLA) could forfeit their seat. These reasons can range from absenteeism and allegiance to foreign powers to dual citizenship and serious criminal convictions.

The subject has become a hot topic following recent upheaval over a Victoria city councillor's controversial letter. However, the BC Constitution Act goes beyond merely providing a framework for government operation; it also lays the groundwork for political accountability. Understanding the Act's intricacies allows us to better comprehend the checks and balances in place to ensure public officeholders adhere to expected conduct.

We also explored two notable legal cases that have recently made the news. The first case involved an injury-at-work incident that resulted in a $10,000 award under the human rights code. Despite the employer's best efforts to appeal, the decision was upheld, shedding light on the complexities of the human rights code in workplace situations.

The second case revolved around a property tax predicament. A couple faced a heavy 20% tax on their house purchase because one of them was not a permanent resident or citizen. This case highlighted the government's role in court cases and the importance of judicial independence.

Overall, these discussions underscore the government's significant role in court cases and the judicial system's critical independence. As citizens, it's essential to understand how these legal mechanisms work, not only to protect our rights but also to ensure we remain informed and active participants in our democracy.

The BC Constitution Act and the various legal cases we discussed underscore the vital interplay between politics and law. Whether it's the forfeiture of a political seat or the interpretation of human rights in a workplace injury case, these legal provisions and judgments shape our society's functioning. As such, understanding them is not just a matter of academic interest but of practical significance to every citizen.

Ultimately, this episode left us pondering the government's role in court cases and the critical significance of judicial independence. By dissecting these legal intricacies, we hope to provide our listeners with a deeper understanding of the BC Constitution Act and its impacts on both political careers and broader societal issues.

Follow this link for links to the cases discussed. 

In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel.

In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends.

Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can "preside over" the Ministry of the Attorney General. 

The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn't have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work.

Rather than negotiating, the government appealed the Arbitrator's decision through a judicial review.

The judge on the judicial review found that the arbitrator's decision was transparent, intelligible, justified and reasonable and so upheld it and ordered the government to pay costs to the Crown Counsel Association. 

In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to.

A neighbour dispute over a fence and access to repair it is also discussed on the show.

After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour's property for the purpose of maintaining the fence.

 This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained.

The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.

Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box.

Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has "seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord's property at significant risk."

The Court of Appeal rejected the tenant's argument that they had a right to time to fix the problem. 

Follow this link for links to the cases discussed. 

Many professions such as doctors, engineers, and architects are regulated to ensure that people providing services to the public are properly trained and competent to practice. The need for this is clear: you want to ensure people receive good medical care and the buildings and bridges don't fall down.

The regulation of lawyers has this objective as well: you want to know that you're getting competent legal advice when you hire a lawyer.

Because lawyers are often engaged in work that is in opposition to the wishes of the government it is also important that the regulation of lawyers is independent of the government.

If you hire a lawyer to defend a criminal case,  prevent the government from apprehending your children, challenging the validity of a law, or pursue indigenous rights, you do not want the lawyer to be concerned about the professional consequences of acting in opposition to the government's wishes.

This independence is under threat in British Columbia as a result of a proposal to "modernize" the Legal Profession Act in such a way that the provincial government would be able to appoint an increased number of the benchers (directors) that govern the Law Society.

As discussed on the show, the government's immediate motivations to take greater control include a wish to avoid providing adequate funding for legal aid services by creating a system of paralegals with less training than lawyers to provide legal services for the poor.

The issue of adequate legal aid funding has been pursued by the Law Society for many years.

BC is the only province in Canada that imposes a special tax on legal services. The tax was introduced by an NDP government in 1992.

When the tax was introduced it was done for the express purpose of funding legal aid.

Quickly, however, the tax started collecting more money than the government was providing for legal aid and the extra funds were diverted to general revenue.

The government now diverts more than half of the funds collected pursuant to the special tax while dramatically underfunding legal aid services.

The diversion of tax revenue from legal aid has resulted in various challenges by the Law Society including a vote to censure a past Attorney General.

A history of the funding of legal aid in BC, the special tax, and the disproportionate impact the diversion of revenue from the special tax has had on women can be found here.

The government proposal has met with opposition from the Canadian Bar Association, the Victoria Bar Association,  the Law Society, and others.

As discussed on the show, one of the elected benchers from Victoria, Paul Pearson gave up his position because he works as Crown Counsel and concluded he couldn't effectively oppose the government initiative while also working for the provincial government.

His statement outlining the import of what has been proposed can be found here.

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

Get ready to plunge into the riveting world of legal complexities as we welcome Michael Mulligan, a seasoned barrister and Solicitor, to our podcast. Packed with insights and thought-provoking perspectives, we'll unravel the collateral consequences of committing an offence and the intricate aspects of third-party records in criminal cases. Mulligan guides us through the maze of evidence collection, especially in scenarios where the police don't possess the evidence, as in the case of a prison assault video. We also delve into the privacy concerns surrounding the people featured in such videos.

Moving on, we dive headfirst into the challenging terrain of the prison disciplinary process. Mulligan sheds light on the current system where a standard of "probably" is adopted while punishing inmates, a practice that could be at odds with the constitutional right of presumption of innocence until proven guilty. We debate the fairness of this system, especially for inmates awaiting trial while presumed innocent. To add to the mix, Mulligan paints a vivid picture of the realities of prison life, underscoring how this environment influences legal proceedings. Buckle up for this intense exploration of the legal intricacies within the prison system!

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

Who says law and property rights can't be riveting? Brace for a legal deep dive unravelling the complexities of the Short Term Rental Accommodations Act in British Columbia. It's not every day you get to compare it to governmental property seizure, but we dare to tread those intriguing waters. We pick apart the legal precedents for compensation in cases where the government appropriates property and delve into the Supreme Court of Canada's ruling in the Annapolis Grouping v. Halifax Regional Municipality case. And that's just the tip of the iceberg!

 We also discuss building permits, how court decisions are interpreted, and even explore the Canlii website for a dose of free case law knowledge. This episode is a must-listen for anyone keen on property rights and the intricacies of the law!

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

Join us this week where we'll be opening the vault of Canada's legislative past with legal expert Michael Mulligan. Trust us, you won't want to miss this deep dive into the controversial British Columbia Heroin Treatment Act of 1979. Together, we'll unravel the context of the Opioid Crisis of the late 70s and today, investigating the eerily similar circumstances and sobering statistics of both times.

In the episode, we'll have a healthy debate about the implications of the Heroin Treatment Act. By dissecting the act, we'll see the jurisdictional challenges it presented and the public's resistance against mandatory treatment.  Not to mention the fascinating parallels between the current Mental Health Act and the Heroin Treatment Act.

But hold your horses; we won't stop there! We'll be shifting gears to discuss the impact of prolonged delays in civil cases, specifically centred around employment disputes. We'll examine two unique cases, both revolving around dismissed employees. You'll hear about their fight for severance pay under the Employment Standards Act and the repercussions of these extended delays on their case outcomes. Whether you're a history aficionado or a legal enthusiast, you're in for an insightful ride as we navigate through Canadian legal history and today's legal hurdles.

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

Do you feel like you’re reading a different language when you look at legal documents? You’re not alone. We’ve brought in legal expert Michael Mulligan to decipher Bill 34, the Restricting Public Consumption of the Legal Substances Act, and it’s not what you’d expect. This piece of legislation doesn't public drug use anywhere unless someone is first asked to stop by a police officer. Mulligan also sheds light on the process and consequences of seizing substances discovered during these encounters.

But we're not just decoding legal jargon today. We’re also unwrapping the little-known tort of misfeasants in public office and how it’s interpreted by the Supreme Court of Canada. Mulligan walks us through a real-life case of a man hindered by political interference despite crossing all the T’s and dotting the I’s for his run-of-the-river hydro project. This incident serves as a vital reminder that the law should always be upheld, and decisions should be made with fairness and objectivity. This isn't your everyday legal discussion, so get ready to dive into the fine print!

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

Strap in for a thrilling conversation with Barrister and Solicitor, Michael Mulligan, as we navigate the tricky terrain of family law and indigenous governance. Curious about how the court defines a 'spouse' and how that affects child support? We dissect a case of a former stepfather, compelled to shoulder significant monetary responsibilities for three children, despite the fluctuating nature of his relationship with their mother. Listen as Michael enlightens us about how the BC Family Law Act interprets 'spouse', a definition that might surprise you.

Ever wondered how adoption laws work in British Columbia? We delve into a unique case of a teenager yearning for adoption by his stepmother, and the hurdles he faces due to his biological mother's refusal. To top it all, we also scrutinize a controversial case involving a Canadian First Nations band council charged with misconduct. We discuss allegations of breach of fiduciary obligations, the band's counter-argument, and the broader implications of this case for indigenous communities. This is a rollercoaster ride through some high-stakes legal cases and their wider impacts. So, tune in for some thought-provoking discussions on family, identity, and justice.

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

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?

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

This week on Legally Speaking with Michael Mulligan:

Before the introduction of mandatory no-fault ICBC insurance in May of 2021, if someone was killed in a motor vehicle accident, the deceased's family could sue the person responsible for the accident to receive compensation for at least the financial loss of a loved one.

This typically occurred when the person killed had financially supported their children or partner.

In the first case discussed, the parents of a 17-year-old Korean boy who was killed in a car accident were awarded $327,000 based, in part, on expert evidence of the Korean tradition of hyodo duty.

This tradition, which is particularly applicable to the eldest son, was a legal obligation in Korea until the 1990s. It contemplates reciprocity and repayment to parents for the sacrifices they have made and meeting the expectations of parents’ wishes concerning care and old age.

The boy was killed three months before he graduated from high school. While going to school, he worked long hours in his parent's restaurant without a salary and broadly assisted his parents, who spoke limited English.

The judge who decided the case permitted hearsay evidence concerning the boy’s specific statements concerning his concern and care for his parents.

Because the boy’s parents weren’t financially dependent on their son at the time he was killed, the ICBC no-fault insurance system would only have paid for a funeral, grief counselling, and $16,256 in compensation.

One of the profoundly unfair parts of the ICBC no-fault system is that any compensation for lost earning capacity when someone is injured or killed is based on what the person earned at the time of the accident. If, for example, someone is a student when they are injured or killed, any compensation for their inability to work is based on how much they were earning as a student and not what they would have earned once they graduated and started working.

Also, on the show, a case involving First Nations challenging the mineral exploration legislation in BC is discussed.

The Mineral Tenure Act in BC permits people to file a mineral claim over unclaimed Crown land and search for minerals there.

If minerals are found before there could be any commercial mining occurs, further government approval is required.

 The First Nations argued that they should be consulted before allowing people to search for minerals.

The First Nations argued that their constitutional rights were violated and that the BC Declaration on the Rights of Indigenous Peoples Act, which attaches a copy of the United Nations Declaration on the Rights of Indigenous People, required additional consultation.

The judge hearing the case concluded that the BC Declaration on the Rights of Indigenous Peoples Act did not create any new legal rights that could be enforced in court but instead set out a government commitment to reconciliation.

Despite this, the judge determined that while the Mineral Tenure Act was not unconstitutional, the government is required to set up a system to consult with First Nations before issuing a mineral claim. The judge allowed the provincial government 18 months to set up a system to facilitate this.

Finally, a case involving an unsuccessful attempt by the BC Legislative Assembly to prevent special constables at the legislature from forming a union based on a claim of parliamentary privilege is discussed.

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

Buckle up for a wild ride as we navigate the intricacies of some fascinating legal cases on Legally Speaking with Michael Mulligan. He's a barrister and solicitor at Mulligan Defence Lawyers.

First up,  a woman, her guinea fowl, and a bylaw that isn’t as black and white as it seems. Discover how this fascinating case hinged on the interpretation of the bylaw and whether guinea fowls are considered poultry, fowl, or exotic birds. Spoiler alert: they're not what you think!

With no time to waste, we discuss two cases involving cannabis retailers on First Nations Reserves. Listen as Michael breaks down the lawsuit where retailers accuse the province of negligence and misrepresentation. Can the province be held responsible for the retailers' losses, or is the relationship too tenuous for a negligence claim to stick? Finally, we discuss an indigenous man who was evicted from his home on the Squamish Nation Reserve without compensation for establishing a marijuana dispensary and other violations of housing policy.

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

This week on Legally Speaking with Michael Mulligan:

An analysis of various policy proposals the BC United Party issued concerning the criminal justice system.

The proposals include hiring additional police and Crown, ending the decriminalization of drugs, funding body cameras for all police, opening more courts, and pursuing civil claims against people who traffic drugs that cause death. 

Follow this link for a transcript of the show and link to full policy details. 

An application to find a union in civil contempt for breaching an injunction against making noise while picketing at three Vancouver Airport Hotels failed because of the wording of the injunction, which only prohibited noise above 75bBA if made by various specified devices.

The evidence demonstrated that the noise was above the prohibited threshold but not if it was produced by specifically prohibited items: drums,  microphones, speakers or megaphones.

Also on the show, costs were awarded against a strata corporation that embarked on ill-conceived litigation without a 3/4 majority vote to replace a building roof.

The case confirms that even though one of the owners who were taken to court had a lawyer assist them pro bono, and others were self-represented, this is not a reason to deny costs being awarded.

The reason for this is that costs are not only intended to help pay the legal expenses of a successful party, but they also serve other purposes: deterring frivolous actions or defences, encouraging conduct that saves time, encouraging settlement and the careful assessment of the strengths or weakness of cases.

The judge dealing with the costs award further concluded that the strata corporation's lack of budget to pay costs also had no relevance.  If a court order is made to pay costs, and they are not paid, an order could be obtained to remove the funds from the strata corporation's bank account regardless of any budgetary considerations.

Finally, the judge concluded that the owners who were awarded costs would not be required to contribute to the expense incurred by the strata corporation.

Finally, on the show, the BC Court of Appeal has determined that the definition of a "person with a mental disorder" in the Mental Health Act includes someone who isn't displaying symptoms of the mental disorder when their involuntary detention is being reviewed.

The Mental Health Act permits the involuntary treatment of people who have a mental disorder and who are a threat to themselves or others.

The case involved a man with an extended history of paranoid psychosis and self-harming behaviours for which he had been repeatedly hospitalized and certified for involuntary treatment. The behaviours would include cutting and burning himself.

The police had repeatedly taken the man to the hospital for treatment. He would receive antipsychotic medication that successfully prevented self-harm, but once released, the man would stop taking the medication and harm himself again.

The Court of Appeal concluded that the definition of a "person with a mental disorder" should be interpreted in accordance with the purpose of the act and the fact that the symptoms of a mental disorder were being controlled by medication at the time of a review didn't mean that the person no longer met the definition.

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

Most criminal offences in Canada involve prohibitions on doing things that would harm others.  It is rare that the criminal law will require someone to do something.

An exception to this is the offence of failing to provide the necessities of life.

It is a criminal offence for a list of people, including parents, foster parents, and spouses to not provide the necessities of life.

It also requires anyone who is in charge of someone who cannot withdraw from that situation "by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge" to provide them with the necessities of life.

In the tragic case discussed the Court of Appeal allowed a sentence appeal by the Crown to increase a sentence imposed on a woman who worked as a caregiver for a 55-year-old woman who had Down Syndrome.

The woman with Down Syndrome stopped eating and slowly starved to death. The caregiver, relying on advice from the woman's mother, didn't arrange for medical assistance.

The case was unusual in that the caregiver had no animosity towards the woman she was caring for: they had a good relationship for more than 18 years and she mistakenly thought she was doing the right thing in not arranging for medical assistance.

While the Court of Appeal increased the sentence from a 12-month conditional sentence (house arrest) to a 15-month jail sentence, because the conditional sentence had already been served, the caregiver would not actually be required to go to jail.

Also on the show, a prosecution for criminal contempt for blocking a logging road by sitting on a tall tripod is discussed.

The issue in the case was whether the person sitting on the tripod had been properly served with a copy of the injunction not to block the road.

The police officer involved read a summary of the injunction to the person on the tripod and then left a copy of the injunction on the ground underneath the tripod, where it remained for an hour and a half until the police returned and arrested the man.

The court concluded that the man on the tripod had been properly notified of the injunction as it was drawn to his attention and he could have climbed down from his perch to read it but chose not to.

Finally, on the show, the war crimes prosecutions that took place in Nuremberg Germany following WWII are discussed.

The trial represented an alternative to summarily executing the prisoners as Stalin wanted to.

The trials involved four judges. One each from the USA, the UK, France and Russia.

The opening statement by the lead US Prosecution, Robert Jackson, began with this:

"The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason."

While most of the accused were convicted, and many of them were sentenced to death by hanging, three of the accused were found not guilty.

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

What if you found yourself at the receiving end of a judicial system, prosecuted for a fatal accident with no evidence of intoxication, excessive speeding, or aggressive driving? This is the tragic reality for a 21-year-old driver with no history of bad driving or criminal record, facing a heart-wrenching sentencing decision. Join us as we unravel this case with Michael Mulligan,  with Mulligan Defense Lawyers. Michael helps us explore the implications of prosecuting cases where there are no apparent signs of bad driving, the delicate balance between law and justice, and the societal impact of such sentencing decisions.

Delving further into the world of complicated legal concepts, we navigate the labyrinth of vicarious liability in the context of a class action against ICBC.

The case involved an employee of ICBC selling personal contact information associated with the license plates of cars parked at the British Columbia Justice Institute where police and other public safety employees are trained.

The information was used to target the houses of the vehicle owners including with arsons and shootings. 

Mulligan unravels the factors courts consider in these instances and the implications of ICBC's appeal and whether is was wise for ICBC to attempt to avoid liability in the circumstances of this troubling case.

We also shed light on an intriguing case of a man appealing his sentence, dissecting the elements that come into play when a person asks for bail pending the hearing of a sentence appeal.

Unlike a person seeking bail prior to trial, someone who has been plead guilty and been sentenced no longer enjoys the presumption of innocence.

This episode promises to leave you with a fresh perspective on the intricacies of the law and the delicate balance between justice, liability, and compensation.

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

The Supreme Court of Canada has upheld the double murder conviction for a  man who insisted on representing himself at trial. He was so disruptive that the trial judge removed him from the courtroom multiple times and then shut off his microphone on the closed video connection he had to the courtroom.

The accused in the case would not ask questions of witnesses or make submissions and would, instead, express various conspiracy theories about the FBU, the U.S. Army, and mind control.

The trial judge eventually appointed an amicus to ensure a fair trial for the man.  An amicus is a lawyer a judge appoints to assist with a trial. Importantly, they are not a lawyer for the accused person.

The Supreme Court of Canada confirmed that trial judges have broad discretion to appoint an amicus, and the judge can determine their role.

In this case, the amicus was appointed to ask questions of the Crown witnesses so that the jury could hear an alternative to the prosecution's version of the case.

The Supreme Court of Canada concluded that there wasn't a miscarriage of justice when the judge didn't ask the amicus to make a closing submission to the jury after the accused would only talk to the jury about various conspiracy theories, telling the jury that "the FBI understands and believes [his] testimony, understands the situation at hand, the breached of national security."   

Also, on the show, a case involving a sailboat that broke away from its morning, sunk, and was subsequently recovered and disposed of by the Bowen Island Municipality is discussed.

The man who owned the boat successfully sued the municipality for disposing of the wrecked boat because the municipality didn't get permission from the Receiver of Wreck.

Pursuant to the Canada Shipping Act,  someone who takes possession of wreck must report it to the Reciever of Wreck and then do what the Receiver of Wreck directs.

In this case, the sailboat wreck was disposed of without permission.

The boat owner had claimed $95,000 but only received $5,000. There were two reasons for this. First, the owner's only evidence about the value was based on his estimate, which included the value of his labour working on the boat. Second, many of the lost things, such as upholstery, clothing and bedding, were lost because the boat sank and not because the municipality disposed of the wreck pulled up from the seafloor.

The trial judge also took some issue with the boat owner's credibility because, in a previous case involving the same boat, he claimed that he did not own the boat and that it belonged to his sister.

Finally, a case involving the administration of an estate is discussed on the show.

Someone administering an estate has a fiduciary obligation to the estate's beneficiaries: this means that decisions need to be made in their best interests.

In this case, the administrator was denied permission to purchase a property owned by the estate for less than its appraised value.  This kind of self-dealing is prohibited, except in rare circumstances, unless all of the beneficiaries provide fully informed consent.

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

Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean.

At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion.

The Island Trust didn't like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge's order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion.

Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order.

During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple's adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue.

The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall.

Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed.

The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn't adequate for the job.

The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was "about as strong as the Great Pyramid of Giza."

As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn't removed by the end of October there could be another $7,500 fine imposed.

How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him.

Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed.

The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million.

The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017.

Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate.

The legislation that imposes the tax requires it to be applied to anyone who isn't a Canadian citizen or Prominent Resident.

While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years.

The case demonstrated the need to amend the legislation.

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

The episode begins by discussing the decision to discontinue a prosecution arising from a  Nanaimo business owner who gets shot after trying to retrieve his stolen property from a homeless camp.

Crown Counsel has a duty to only approve and proceed with criminal charges where there is a substantial likelihood of conviction.

 In the case involving the business owner who was shot while attempting to recover property from a homeless camp in Nanaimo, further police investigation revealed that the initial allegations made by the business owner were not accurate.

The business owner initially claimed the is attended the homeless camp unarmed, with three other men, to look for stolen property.

Further police investigation revealed that the business owner attended with six or seven other men and that he and others in the group were armed with batons, a 2x4, and bats of broomsticks. They were also wearing protective gear and gloves with hardened knuckles.

The police investigation also uncovered a video of the business owner hitting a camper in the head with a baton. The business owner had also thrown a camper and his girlfriend down an embankment.

The business owner stopped operating with the police.

The new information uncovered by the police made it clear that self-defence would be a real issue at trial. Where self-defence is an issue, the Crown would need to prove, beyond a reasonable doubt, that it was not applicable.

Given the inaccurate report made by the business owner and the evidence uncovered by the police that the business owner was armed and had hit a camper on the head with a baton and thrown two people down an embankment, the Crown concluded there was no longer and substantial likelihood of a conviction for an offence relating to shooting him.

Also, on the show, two separate pieces of litigation between the BC Government and virtually all of the lawyers who work for the government are discussed.

The first case arises from a dispute between the BC Government and the Crown Counsel Association. This case involves the obligation of the government to negotiate with the Crown Counsel Association over the terms of employment for Crown Counsel,  assigned to conduct bail hearings on weekends and holidays. 

Following the expiry of an agreement with the Crown Counsel Association, the BC Government took the position that it could unilaterally dictate the terms of employment. The Crown Counsel Association took this issue to arbitration and won: the Arbitrator ordered the government to negotiate.

Not liking this result, the BC Government is attempting to get a judge to overturn the arbitrator's decision rather than engaging in negotiations.

The second case discussed involves virtually all lawyers working for the BC Government who are not Crown Counsel. These lawyers voted overwhelmingly to join a union called the British Columbia Government Lawyers Association.

The government didn't like the idea of these lawyers having their own union, so it passed legislation forcing them to join a  union called the Professional Employees Association.

The lawyers involved didn't want to be a  part of this union, and the union, for its part, didn't want to represent a group of people who didn't want to join it.   

This has resulted in the British Columbia Government Lawyers Association suing the BC Government on behalf of the government lawyers alleging that forcing membership in the unwanted union violates the constitutional right to freedom of association guaranteed by section 2 (d) of the Charter.

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

In British Columbia, it's illegal to produce milk and sell it to anyone other than the Milk Marketing Board.

The Milk Marketing Board sets wholesale prices, intended to guarantee a profit for milk farmers, and sets quotas for how much milk a farmer can sell.

Farmers who produce more milk than their quota can be required to dump it down the drain.

As a result of this system, consumers in British Columbia pay 25 - 30 % more for milk than it costs in the United States.

Since 2022, milk prices have been increased three times and retail prices have risen by 15%.

To preserve this system the Milk Marketing Board conducts surveillance of farmers to ensure they don't try to sell any extra milk.

In the case discussed the Milk Marketing Board conducted 19 days of surveillance on a single farmer and determined that he had been selling extra milk to someone else. 

 The Milk Marketing Board imposed a $195,184 fine on the farmer and then tried to cancel his quota three days after he filed an appeal of the decision.

On appeal to the BC Farm and Industry Review Board, the fine was reduced to $3,000 and the application to cancel the farmer's milk quota was denied. The farmer was ordered to pay $33,000 to cover the cost of the investigation and surveillance.

Unhappy with this outcome, the Milk Marketing Board appealed again and was successful in having the case sent back to the Review Board to consider a higher fine.

Also on the show,  a lawsuit alleging that Roundup caused a man's cancer is discussed.

The man's legal argument is a novel one: he has sued three retailers who sold him Roundup over a 30-year time period based on an alleged breach of the Sale of Goods Act.

The Sale of Goods Act requires goods to be fit for their intended purpose and the man is alleging that if the herbicide caused his cancer it didn't meet this requirement.

The man suing the retailers filed a request to have the case decided by a jury. This was opposed by the defendant retailers, who alleged that the case involved a complicated legal question and that the scientific and medical evidence would be too complicated for a jury. The judge hearing the case agreed with this argument so the issues will be decided by the judge alone, without a jury.

Finally, human rights case involving a teacher from Ontario who applied for a licence to work in BC is discussed.

Following the teacher's application, concerns arose with respect to his ability to communicate in English arose and he was asked to take an English exam. He refused to take the test, alleging that it amounted to discrimination based on his ethnic origin.

The human rights complaint and now two appeals have rejected the teacher's claims on the basis that there was no evidence the requirement to take the English exam was motivated by his ethnic origin rather than a concern about his language proficiency.

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

What happens when the line between victim and perpetrator blurs in the eyes of the law? When a homeowner confronts a crossbow-wielding intruder or store employees stop a car theft, should they face criminal charges or civil lawsuits for defending themselves and their property?

Barrister Michael Mulligan unpacks the controversial legal landscape of self-defense in Canada, explaining how the 2012 amendments to the Criminal Code created a complex "reasonableness" requirement for those protecting themselves or others. This means that even when facing deadly threats in your own home, the law expects you to consider factors like the relative size, age, and gender of your attacker before responding. As Mulligan notes, "When you're fighting for your life or to save your children, you don't need to worry about weighing up how old this person is and what their gender is."

The discussion extends beyond criminal liability to civil lawsuits, highlighting a case where a self-described "career criminal" is suing grocery store employees who prevented him from stealing a car, claiming they damaged his self-esteem. This mirrors Alberta's experience, where a rancher faced legal action from a thief after firing a warning shot. The provincial response—legislation preventing "criminal trespassers" from suing unless force was "grossly disproportionate"—offers a potential model for other provinces.

The episode also examines a revealing case about Uber's wheelchair accessibility requirements in BC. Instead of mandating accessible vehicles, the government collects a 90-cent fee per non-accessible trip—money that disappears into general revenue while wheelchair users remain unable to use the service. When one wheelchair user won a $35,000 human rights award, the BC Supreme Court overturned it, revealing the tension between regulation and actual solutions.

These cases raise fundamental questions about our legal priorities: Should we better protect those defending themselves and their property? And when regulations like Uber's accessibility fee don't solve the actual problem, what's their real purpose? Listen for an eye-opening look at where our laws might be failing those they're meant to protect.

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

Do you ever wonder what happens when a small claims lawsuit is baseless?

Unlike in Supreme Court, judges cannot award costs to the successful party in Small Claims Court.

Costs are intended to both cover some of the legal and other expenses related to a court case. They can also encourage the settlement of meritorious claims and discourage needless litigation. 

There is, however, a Small Claims Court rule that permits a judge to award a penalty of up to 10% of the amount claimed if someone proceeds to trial with a claim that has no prospect of success. This 10% penalty can be applied to each party that has a baseless claim brought against them.

On the show, a baseless claim made by the purchasers of a home against the couple who sold it is discussed, along with the resulting penalty imposed by the trial judge who concluded the plaintiffs were simply trying to get someone else to pay for renovations they decided to do.

Also, on the show, a claim against Google and Apple is discussed. The small British Columbia company was unable to pursue a claim against the large tech companies alleging an overcharge for advertising because of an arbitration clause included in the online agreement to purchase the online ads.

Large companies often insert arbitration clauses into user agreements to avoid being sued.

Because arbitration can be expensive and requires claims to be made individually, rather than as a class action, these provisions can stop claims completely because they become too expensive to pursue individually.

Lastly, we step into the world of murder cases, and autopsy photos.

Because judges have an obligation to determine if a piece of evidence would be more prejudicial than probative of an issue in a case, they need to determine if gruesome autopsy photos should be shown to a jury.

If, for example, the only issue in a murder case was whether the accused was the person who committed a murder, showing jurors disturbing photos of a dissected body would likely serve no purpose.

If, however, the issue was whether the amount of force used in self-defence was excessive, it might be very important for jurors to see images of a fatal injury.

In the case discussed, the number of photos was reduced by agreement, and the judge ordered that a particularly disturbing photograph that included late stages of the autopsy dissection be cropped to only show the injury at issue in the case.

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

For most of Canada's history, vagrancy was a criminal offence.

While the wording of the vagrancy laws changed from time to time. As of 1972, there were two different forms of vagrancy.

The first form of vagrancy made it a criminal offence to beg or be found in a public place without apparent means of support.

The second form of vagrancy prohibited people convicted of sexual offences from loitering near parks, playgrounds, school yards or public parks. 

The case that ultimately determined the second type of vagrancy was unconstitutional arose from Beacon Hill Park in Victoria. It involved a man previously convicted of sexual offences involving children being found twice near a playground in the park. The man had a camera with a telephoto lens. When he was arrested for vagrancy, the camera was seized. When the film was developed, it included pictures focusing on the "crotch area of young girls playing in the park with their clothing in disarray."

A five-four majority of the Supreme Court of Canada found the second form of vagrancy unconstitutional because it was overly broad.

Vagrancy was subsequently removed from the Criminal Code.

Also on the show: a report from the Judicial Council of BC indicated a dwindling number of applications for jobs as a Provincial Court Judge in British Columbia.

From an average of 37 applications per year, in 2022, only 23 people applied. 

Why are potential candidates shying away? Is it because of the less than satisfactory remuneration? For over a decade, the BC provincial government has repeatedly overruled decisions of an independent commission that is supposed to set the salaries for judges.     

We draw parallels between the earnings of these judges and those of family doctors and other government officials.

Also on the show is an exploration of the duty-to-defend clause in insurance contracts.

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

Do you know the ins and outs of the Residential Tenancy Act? Join us for an enlightening conversation with Barrister and Solicitor Michael Mulligan as we uncover a recent court decision involving changes to BC's residential tenancy legislation and how an elderly landlord diagnosed with cancer almost found himself responsible for paying former tenants $34,180.

The elderly landlord had his son helping rent the top part of the home he shared with his wife. When he was diagnosed with cancer, the son provided the tenants with two months' notice to end the rental so that his parents utilize both the upstairs and downstairs of the home to accommodate relatives staying over to assist with caregiving.

The Residential Tenancy Act was amended to permit former tenants to obtain 12 months' rent if they are required to move out and the "landlord" doesn't occupy the property.

The adjudicator who awarded the former tenants the money confused two definitions of who a "landlord" can be. For most purposes, a "landlord" can include someone helping a property owner rent a property. To determine who must move into a property to avoid paying 12 months' rent to a former tenant, however, this term has a different definition.

Most contracts don't end up with disputes in court because both parties to an agreement want to enter into them. As the government has imposed increasing conditions on residential tenancy agreements to assist existing tenants, disputes have increased.

Provisions that can result in large financial awards to tenants, like the one discussed on the show, will likely deter property owners from renting a part of their home in the first place.

But that's not all — we also discuss a court of appeal case where a couple blamed their real estate agent for not providing sufficient warning about the potential consequences of not completing a deal.

If, as in this case, someone enters into a contract to purchase a property and then changes their mind and doesn't complete the deal, they can be liable to pay the seller and difference between what they agreed to pay and what another buyer eventually pays. In the case discussed, that was $100,000.

The effort to shift blame to the real estate agent for not providing a clearer warning about failing to complete the deal was unsuccessful because the would-be buyers made it clear that there was no circumstance in which they would have followed through and completed the deal. As a result, no warning from the real estate agent would have made any difference.

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

A man who denied being a human being or being subject to laws turned a wrestling match with RCMP officers into a year in jail for contempt of court following days of nonsense arguments, interruptions, and refusals to behave in court.

Find out more as I tackle the case of Rex vs. A Man Known as Cameron Hardy, and explore the bizarre "Free Man on the Land" theory, which suggests that one is not subject to the laws of Canada. I'll also detail the legal basis for the provincial court's authority to punish someone for contempt in the face of the court.

Also, on the show, the reasons a man was found not guilty of being the person who stabbed and threatened security employees in a Campbell River Walmart are reviewed. 

Learn how media coverage and social media impacted the case, leading to the security guard's wife giving conflicting statements to the police.

Ultimately, find out why the judge determined that the remaining evidence was not enough to prove beyond a reasonable doubt that a man found near where the property stolen from Walmart was the same person who stole it and stabbed the security employee.

Finally, the unprecedented resignation of Justice Russell Brown from the Supreme Court of Canada is discussed along with the desirability of permitting investigations into allegations of judicial misconduct to continue even if the judge being investigated resigns.

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

Can you really sue a judge if you're wrongfully convicted? This episode unpacks the intriguing case of a man who attempted to do just that after his conviction was overturned. We dive into the legal constraints surrounding this scenario and examine Lord Denning's view that judges should be able to make decisions without fear of personal liability. Join our analysis of the limits of a judge's editing power on a court-ordered transcript and the accusations levelled against the judge at the second trial.

Switching gears, we explore intoxication's role in criminal law and the complexities of specific and general intent offences. Through the lens of a case involving a man charged with breaking and entering, we discuss the implications of changing the charge after the accused has testified and the fairness of such an approach.

We also tackle the idea of a decision being 'final' and how it can be revisited, delving into a case involving immediate roadside driving prohibition.

Don't miss this captivating exploration of justice, liability, and the intricacies of criminal law.

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

This week on Legally Speaking with Michael Mulligan:

What does Canada's Bill C-48 mean for the future of the bail system, and does it truly address the issue of crime and social disorder? Join us for an eye-opening conversation with Michael Mulligan of Mulligan Defense Lawyers as we dissect the implications of this controversial bill and the reverse onus provision it introduces.

We'll examine the cases where the burden of proof shifts from the Crown to the accused, and how this has existed for years in certain scenarios. You'll also gain insight into the politics surrounding Bill C-48 and why it faces backlash from indigenous communities, hunters, and sports shooters. Most importantly, we'll consider whether the bill is genuinely capable of reducing crime or just another misguided policy.

Our discussion wouldn't be complete without touching on the connection between the bail system, deinstitutionalization, and the tragic reality of untreated mental illness and addiction. Let's remember that anger isn't the solution, and it's crucial to look past the surface and understand the root of the problem. Tune in for this thought-provoking episode and make sure to read Bill C-48 for yourself to decide if it's the answer we need.

This week on Legally Speaking with Michael Mulligan:

What's the secret to unlocking more housing supply in municipalities like Oak Bay, Victoria, and Sanich? Today, we uncover the implications of BC Government's Housing Supply Act and what it means for these targeted municipalities. We discuss the process that the government will undergo to set housing targets, including the appointment of an advisor who will act as a "mole" within the municipality, gathering vital information on housing development progress.

As we navigate through the challenges and delays in this process, we also tackle the implications of the Housing Supply Act on the power of municipalities to regulate the building of houses. We weigh the pros and cons of setting legislative time limits on processes such as rezoning and construction project approvals. Don't miss our reflections on the image of provincial officials entering municipalities to write a report on why they are too slow in building houses, and what the next steps ahead may be for the Minister in terms of appointing an advisor and setting a housing target. Join us on this eye-opening journey into the world of housing development.

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

This week on Legally Speaking with Michael Mulligan:

Only a tiny percentage of contracts ever end up in court. This is because contracts are intended to be agreements both parties wish to enter.

If, for example, you agree to purchase a home from someone, both you and the seller presumably want to buy and sell the home for an agreed price. Nobody is required to force the home sale to complete as agreed. 

For understandable political reasons, contracts to rent homes are often no longer the result of both parties wanting to continue with the agreement.

As renters outnumber landlords, it’s been politically popular to legislate terms of home rental agreements to do such things as limit or prevent rent increases, prevent rental agreements from having an end date or restrict the circumstances in which a landlord can end a rental agreement.

The result of this, combined with high inflation and rising interest rates, is that many renters are not paying the market value of their homes.

This has resulted in a strong financial incentive for landlords to evict tenants, sell properties, or otherwise get out of agreements to which they do not want to be a party.

The BC Government has responded by attempting to impose penalties to force landlords to continue subsidizing rents for existing tenants.

One of the few circumstances in which a landlord can end a contract to rent a home is if they, or a close family member, wish to move into it themselves.

To prevent this exception from being misused, the BC Government has required landlords who end a contract to rent a home for this reason and who do not move into the home “within a reasonable period of time”, to pay the former tenant 12 months of rent.

The substantial amount of money a former tenant might get has resulted in many applications. Between January 1, 2021, and April 30, 2023, there were 2,200 applications.

In the case discussed on the show, the landlord couldn’t move into their home for four months because he received a stop work order from Saanich for some renovations he was doing before moving in. He was required to provide architectural drawings and asbestos testing before completing the renovations.

At an arbitration, an adjudicator awarded the former tenant $22,001.04. This was overturned on appeal to the BC Supreme Court and, eventually, the BC Court of Appeal.

Also, on the show, the BCCA upholds a decision by the BC Review Board to keep a woman who was found not criminally responsible because of a mental disorder in a secure hospital. The woman suffered from treatment-resistant Schizoaffective Disorder, Bipolar Type, complicated by substance abuse.

She had attempted to abduct a 4-year-old child from a bus believing the child was her own. That was not the first time she had done something similar.

She has no insight into her mental disorder and continues to believe that she is the mother of “angel babies” that she needs to get back.

Finally, on the show, the BC Court of Appeal found that a 4-year minimum sentence for manslaughter with a firearm was not “grossly disproportionate” to the appropriate sentence in the case being considered and, as a result, not unconstitutional.

Because the case did not consider other reasonably hypothetical circumstances where someone could be subject to the mandatory minimum sentence, the provisions may need to be revised in a future case.

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

This week on Legally Speaking with Michael Mulligan:

The Supreme Court of Canada has created a new, very high hurdle for a judge to dismiss applications in criminal cases summarily without allowing the party making the application to call evidence.

The case that gave rise to the issue involved an application for a stay of proceedings brought by two men found guilty of six murder charges. The trial judge refused to hear an application for the stay of proceedings based on several allegations, including sexual activity between police and witnesses, long-term solitary confinement waiting for trial, and the handling of informant information.

The Supreme Court of Canada found that the judge should have permitted the accused to make the application and that judges can only refuse to hear such applications when they are “manifestly frivolous.”

The term “frivolous” is intended to allow applications that will necessarily fail to be dismissed without hearing them, and that “manifestly” captures the idea that the frivolous nature of the application must be obvious.

The Supreme Court of Canada recognized that an undue amount of court time is often spent determining whether an application should be permitted and that this isn’t appropriate. When determining if an application is manifestly frivolous, a judge must assume that everything alleged occurred and that the most favourable inference from the alleged circumstances would be drawn.

Also, on the show, a claim for wrongful dismissal brought by a manager of a used car dealership is dismissed.

The manager, who was paid more than $25,000 per month, submitted two meal receipts for a total of approximately $250, claiming that they were for meals with other employees when they were, in fact, personal expenses. Despite being given two opportunities to come clean about what he had done, the manager did not. The business owner fired him, indicating that she had lost trust in the manager.

While an employer can fire a non-unionized employee at any time, for any reason, if they do not have cause to do so, they can be required to provide either notice of the dismissal or payment instead of notice.

In this case, the fired manager sued, claiming he was fired without sufficient cause.

The judge hearing the case disagreed. They concluded that lying about the meal receipts and then refusing to acknowledge what he had done when confronted about them did constitute grounds for being fired.

Finally, on the show, the BC Court of Appeal has ruled that the provisions of the Child, Family and Community Service Act that permit social workers unlimited access to private medical records, without a warrant, when dealing with child protection cases are unconstitutional.

The BCCA found that there is a high expectation of privacy in medical records and that allowing social workers to access them to look for things such as treatment a parent might have received for mental health or substance abuse issues was not constitutionally permissible.

The BCCA has allowed the government one year to amend the provisions in question to add adequate procedural safeguards to the provisions in question.

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

This week on Legally Speaking with Michael Mulligan:

In 2013, a 28-year-old babysitter, and mother of four, was charged with murder when a 19-month-old drowned in a bathtub.

The case against her was based on the opinion of a pathologist who alleged that “there is no benign explanation” for injuries sustained by the child and that the child had “extensive bruising” that is “typical of abused children.”

The babysitter, who had “Borderline Intellectual Functioning,” agreed to plead guilty to criminal negligence causing death to avoid the possibility of life in prison if she was convicted of murder. She served a year in jail, lost custody of her four children, and became homeless.

The BC Court of Appeal overturned her conviction. It directed a judicial stay of proceedings because it was recently determined that Crown Counsel who prosecuted the case failed to disclose to the babysitter of her lawyer that an investigation into the pathologist conducted by Alberta Justice concluded that there were serious concerns concerning the pathologist’s opinions.

Crown Counsel in BC received the 140-page report from Alberta Justice concerning the pathologist but failed to disclose it to the babysitter of her lawyer as they were required to do.

In addition, it was revealed that the RCMP had received documentation concerning the 19-month-old having been hospitalized a few weeks before the death with a suspected brain infection that resulted in the sudden loss of balance and hypertonia (abnormally increased muscle tone resulting in rigidity). The RCMP did not disclose this material to either Crown Counsel or the defence. 

In criminal cases, the police, and Crown Counsel, have a legal obligation to provide disclosure of all evidence in their possession to the defence. Their failure to comply with this obligation resulted in a misarrange of justice and irreparable harm to the babysitter and her children.

Also, on the show, a plan to create twelve “hubs” across BC to address repeat violent offending is discussed.

As described, there are some positive elements to the proposal, including increased funding and plans to improve information sharing.

The news release with respect to the plan does raise concerns because it suggests that the hubs will be comprised of not only police and probation officers but also “dedicated Crown Counsel.”

Depending on how this is implemented, it is a concern. In Canada, Crown Counsel is independent of the police. Police conduct an investigation and then provide a report to Crown Counsel, along with whatever evidence they have collected. Crown Counsel then determines if criminal charges should be pursued.

This system helps guard against tunnel vision and allows for independent decision-making.

It would be undesirable to have Crown Counsel embedded in hubs with the police and probation officers as they would then be called on to make prosecutorial decisions concerning cases where they were part of the investigation.

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

What happens when a legal system designed for small claims is used to tackle complex issues involving international companies and constitutional requirements? Barrister and Solicitor Michael Mulligan takes us inside a fascinating recent case that exposes serious flaws in British Columbia's Civil Resolution Tribunal system.

Originally created to efficiently handle disputes under $5,000 and minor strata disagreements, the CRT has been expanded into areas far beyond its capabilities. The recent decision involving Twitter/X reveals a troubling reality: secret decisions and unenforceable orders against international companies, with no authority to address constitutional challenges, and vulnerability to exploitation through AI-generated submissions. The tribunal found itself ordering a Texas company to mail a $100,000 penalty to a Victoria PO box - an exercise in futility that undermines confidence in our justice system.

The conversation then shifts to a cautionary tale about insurance coverage that every homeowner needs to hear. A family lost hundreds of thousands in coverage when their house burned down from a prayer candle fire - not because of any wrongdoing related to the fire, but because they failed to disclose an abandoned marijuana grow operation in a distant outbuilding. This case demonstrates the critical "utmost good faith" principle in insurance: failing to notify your insurer in writing about any material change in risk can void your coverage completely, even when that change has nothing to do with your claim. Consider all the renovations, changes, or activities on your property that might constitute "material changes in risk" - your financial security may depend on proper disclosure.

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

This week on Legally Speaking with Michael Mulligan:

For many years, the BC government has paid all lawyers working for it on the same basis as contracts negotiated by the union representing Crown Counsel. Recently the government decided to stop doing this. That decision likely increased support for the rest of the lawyers to sign up to join the BC Government Lawyers Association: 75% did so.

The BC NDP government, whose core support is organized labour, recently introduced legislation entitled the Public Service Labour Relations Amendment Act, 2023. This act is also referred to as Bill-5.

Bill-5 is only half a page long. On the face of it, the bill appears to make some changes to the definition of “employee” in an act called the Public Service Labour Relations Act but it’s entirely unclear what impact this change would have. The Explanatory Note, which is included with Bill-5, is equally opaque.

Without reading and carefully analyzing the Public Service Labour Relations Act, it’s impossible to determine what impact the definition change would have.

The explanation provided by Minister Katrine Conroy when she introduced the bill and when she answered questions about it indicated she did not know or was misinformed about the effect of Bill-5.

When she spoke about it in the legislature Minister Katrine Conroy indicated that Bill-5 would permit the lawyers to have the BC Government Lawyers Association represent them as they wished. This is a position completely consistent with the position you’d expect from an NDP government.

If enacted, Bill-5 would force the lawyers to join a union they don’t want to: the Professional Employees Association.

That union has also said they don’t want a group of people who don’t want to join them being forced to do so.

The foregoing circumstance resulted in a most unusual spectacle of government lawyers protesting on the lawn of the legislature.

Without the benefit of advice from the flock of lawyers on the lawn of the legislature, the BC NDP government seems to have been misled about the effect of the legislation it introduced.

Also, on the show, the BCCA finds youth bail conditions improperly imposed on the show. The trial judge in the case ordered the young person to follow all rules of the house they were living at and to accept medical treatment.

The BCCA concluded that the judge didn’t have details of the house rules, the rules could change, and a failure to comply could result in the young person going to jail. In these circumstances, the condition wasn’t permissible.

The condition requiring medical treatment was also impermissible because, as with adults, a mature youth had a constitutional right not to be ordered to undergo medical treatment without their consent.

Finally, on the show, a class action on behalf of 13 women secretly video recorded in the bathroom at a grocery store is certified against both the manager who did the recording and the corporation that owned the store.  Some of the resulting pictures and videos were posted on pornographic websites.  

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

This week on Legally Speaking with Michael Mulligan:

A third charge approval review, ordered by David Eby, comes to the same conclusion as the first two: there is no basis for money laundering charges arising from a large RCMP investigation into cash or casino chips being provided to high-stakes Chinese gamblers.

A long-running public inquiry, also ordered by Mr. Eby, revealed that high-stakes gamblers from China were bypassing Chinese limits on how much money they were permitted to take out of China.

The high-stakes gamblers would transfer money from their Chinese bank account into the Chinese bank account of someone in Vancouver before flying over to gamble. The person in Vancouver would then provide the gambler with casino chips or cash to spend in the casino.

The individuals in Vancouver would charge a fee for this service and end up with money in a Chinese bank account.

As is often the case, the gambler would typically lose the money in the BC casino.

The concern was that the cash or casino chips might have been the proceeds of drug sales or other criminal activity. Permitting cash obtained in this way to be this to be deposited into a bank would be undesirable as it would encourage more criminal activity.

A large RCMP investigation, called E-Nationalize investigated this but found no evidence that the cash being provided to the gamblers was from illegal activity.

Nonetheless, the RCMP sent a report to Crown Counsel suggesting that there could still be proceeds of crime charges on the theory that the people supplying the cash or casino chips in Vancouver didn’t have the correct kind of business licence.

Crown Counsel declined to approve proceeds of crime charges premised on not having a business licence as they concluded there was no substantial likelihood of conviction and no public interest in conducting a long and complicated trial over such a trivial allegation.

Mr.  Eby, as Attorney General, directed Peter Juk, the Assistant Deputy Attorney General, to review the charge approval decision as he wanted the charges to be approved.

When this kind of direction is given by the Attorney General, it must be published in the Gazette, as it is direct political interference with a prosecutorial decision. Mr. Eby used a section of the Crown Counsel Act that permitted the publication of his order to be delayed.

Mr. Juk reviewed the charge approval decision made by Crown Counsel in the ordinary way and came to the same conclusion: no charges should be approved.

Again, Mr. Eby was unhappy with this conclusion, likely because he had made money laundering a political issue and had ordered a lengthy and expensive public hearing into it.

Having been told no on a second occasion, Mr. Eby ordered Mr. Juk to hire a lawyer in private practice as a special prosecutor to review the charge approval decision for a third time.

Mr. Eby directed that the special prosecutor should consider a lower charge approval standard of “reasonable prospect of conviction” rather than “substantial likelihood of conviction” and wrote that he believed there was a “strong public interest in conducting a prosecution” on the theory of not having a business licence.

Despite these directions, Chris Considine, the senior lawyer appointed as a special prosecutor, also concluded that charges should not be approved. He released an 11-page explanation of his decision.

Also, on the show, a case involving medical negligence in the context of eye surgery is discussed. The plaintiff ended up with permanent disfigurement and significantly obstructed vision. He was awarded $180,000.

Follow this link for links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

Unlike in the United States, where property rights are constitutionally protected, there is no similar protection in the Canadian Charter.

Various provinces, including British Columbia, have set up civil forfeiture regimes that permit property to be seized absent any criminal conviction.

Civil forfeiture can occur based on a civil standard of a balance of probabilities, rather than proof beyond a reasonable doubt.

In British Columbia property can be seized if the government can prove that it’s probably the “proceeds of unlawful activity” or an “instrument of unlawful activity”.

In a recent decision, the BC Court of Appeal found that it was permissible for the provincial government to seize property on the basis that it would probably be used, in the future, for unlawful purposes even if there was no evidence that it had been used for unlawful purposes in the past.

While seizing property on the basis that it is “likely to be used to engage in unlawful activity” in the future, on a civil standard of probably, may be constitutionally permissible, the public policy question that should be asked is whether this is fair or appropriate.

When courts review legislation, they are not deciding if a law is fair or a good idea. The standard of review is whether the legislation is constitutionally permissible.

Also, on the show, a case involving a sentence imposed by a judge for manslaughter, after a jury acquitted an accused of murder, but convicted of this lesser included offence is discussed.

The case involved a 74-year-old man, with no criminal record, who shot a roommate who had engaged in frequent violent, threatening and unpredictable behaviour. On the evening in question the roommate had a dispute over rent and said that he would be dealing with the accused at midnight. When, at midnight, the roommate announced that the accused’s time had come, and did not stop, the accused shot and killed him with a revolver.

When a jury renders a verdict, the judge hearing the case needs to make findings of fact consistent with the verdict and sentence the accused accordingly.

In the case discussed, the Crown asked the judge to find that the case was a “near murder” while the defence urged the judge to conclude it was “near self-defence”. The trial judge took a middle position and sentenced the then 77-year-old to 7 years in jail.

The 7-year sentence was upheld on appeal.

Finally, on the show, a man who was blocking a road to prevent logging was acquitted on a charge of contempt of court because the Crown didn’t prove that the man had knowledge of the court order he was alleged to be in contempt of.

The RCMP, who were enforcing the injunction, read only a summary of the injunction to the man before arresting him.

The Crown argued that the doctrine of wilful blindness was applicable.  The judge concluded that this was not applicable as there wasn’t evidence to support this. Wilful blindness could apply if, for example, someone plugged their ears or closed their eyes when an injunction was read or provided to them in writing.

The judge hearing the case pointed out that it’s a criminal offence to obstruct a highway for the purpose of compelling another person to abstain from doing anything they have a lawful right to do, and that knowledge of the law is presumed.  Because the prosecution was for contempt, rather than breaching section 423(1)(g) of the Criminal Code, the accused was found not guilty.

Follow this link for links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

Following 7 days of hearings, with 79 pages of notices of application, responses to applications, and pleadings, 13 affidavits totalling more than 500 pages, 67 authorities, and over 90 pages of written submissions, a BC Supreme Court Judge has concluded that the District of Central Saanich did not have authority, pursuant to its Tree Protection Bylaw, to prevent a farmer from clearing trees to expand their farm.

The judge concluded that while municipalities have some authority to regulate tree removal, the Community Charter, which delegated this authority to municipalities, does not permit such bylaws or regulations to prevent trees from being removed to the extent necessary to permit a property owner from engaging in “development to the density permitted” by applicable zoning.

The District of Central Saanich argued, unsuccessfully, that the words “development” and “density” should be narrowly construed so as to apply only to the construction of homes or buildings.

The judge hearing the case concluded that the terms “development” and “density” include more than the construction of homes or buildings and that these terms include things such as the development of a farm to increase crop yields.

As the property owners pointed out, and the judge accepted, one cannot farm in a forest.

Also on the show, a case involving a vulnerable, elderly, woman who signed away her home as part of an unconscionable purchase and sale agreement is discussed.

The woman, who was 84 at the time of trial, was persuaded to sign a transfer of her home after she had moved into an assisted living facility. The sale agreement said that the woman would receive $485,000 but the terms of the sale provided that no payments would be made for 24 months and then, over between 20 and 40 years, she would be paid from profits of a proposed winery.

Two of the people involved in the purchase took the woman to a notary, rather than a lawyer, to have the home transferred.

Unlike lawyers, notaries don’t provide legal advice.

This notary made no inquiries about the transaction, made no inquiries about the relationship between the woman and the men who brought her to the notary's office, made no inquiries about the woman’s capacity, did not recommend legal advice, and made no notes.

The notary charged $50 and executed the document transferring the woman’s home to the would-be wine company.

At trial, the judge found that the notary had breached even the duty of care the notary owed the elderly woman and ordered that the notary pay the woman for the home.

The BC Court of Appeal agreed that the notary had breached his duty of care but found there was insufficient evidence for the trial judge to have concluded the woman would not have signed the paperwork to transfer her home even if she had been told that she should obtain independent legal advice before signing the transfer papers.

The case is a cautionary tale about the risk of harm to vulnerable people when significant transactions occur without proper legal advice.

It’s not likely a coincidence that the men involved in the unconscionable purchase of the home took the woman to a notary to execute the transfer, rather than a lawyer who would be expected to make further inquiries and offer the woman legal advice about what she was being asked to sign.

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

This week on Legally Speaking with Michael Mulligan:

A University of Victoria instructor pleaded guilty to criminal contempt for blocking a road by chaining himself to a log.

Other people who had been convicted in similar circumstances have been sentenced to a period of probation with 100 hours of community work service.

Following the man's arrest, his bag, containing $1605 of his camping gear,  was “repeatedly run over by a road grader”.

Judges can consider the “collateral consequences” of a charge when determining an appropriate sentence.

As a result, the man’s sentence was ordered to complete only 70 hours of community service: an effective reduction of $53.50 / hour for the run-over camping gear.

Also, on the show, statutory exemptions from paying municipal property tax are discussed.

In British Columbia, municipalities determine their budget and set mill rates for different kinds of property. The mill rates are multiplied by every $1,000 in property value, as determined by BC Assessment.

Because of how this system works, the amount of tax payable by each property owner depends on the relative value of properties and how many properties there are to distribute the tax burden.

Section 220 of the Community Charter includes a list of kinds of properties that enjoy a statutory exemption from paying any property taxes. They include hospitals, schools, graveyards, and property owned by the provincial government. It wouldn’t be sensible if municipalities could impose very high property taxes on the legislature building, for example.

Section 220 (h), however, exempts property owned or leased by religious organizations from paying any municipal tax. The result of this statutory exception is that all other property owners in a municipality are required to pay more in property tax to subsidize religious organizations that are paying nothing.

In addition to the unfairness of requiring all other property owners to subsidize religious organizations, the exemption may be inconsistent with section 2 (a) of the Charter, which provides for “freedom of conscience and religion”. This section has been interpreted to include freedom from being required to engage in religious activity.

In a case called R. v. Big M Drug Mart Ltd., the Supreme Court of Canada held that the Lords Day Act, which required businesses to be shut on Sunday, contravened section 2 (a) of the Charter. This compelled business owners who were not religious or who worshiped on days other than Sunday to close or pay a fine.

There would be a compelling argument that requiring property owners to pay higher property taxes to subsidize religious organizations is unconstitutional.   

Finally, on the show, a new BC Court of Appeal decision expanded the scope of how judges should interpret section 718.2(e) of the Criminal Code. This section provides that when sentencing someone, a judge should consider all available sanctions other than imprisonment “with particular attention to the circumstances of Aboriginal offenders.”

The court reduced a sentence from 5 years to 4 years in jail for a Métis man convicted of aggravated assault for an unprovoked stabbing.

The accused in the case had a horrific childhood, primarily because of his non-indigenous stepfather.

The Court of Appeal concluded that the man had a “significantly reduced level of moral blameworthiness” and had no difficulty inferring that “Canada’s colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court.”

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

This week on Legally Speaking with Michael Mulligan:

In response to political pressure resulting from public disorder and random assaults of strangers, BC Premier Eby announced several policy changes, including some amendments to the Crown Counsel Policy Manual concerning bail.

Much of the social disorder and irrational, random assaults of strangers in urban centres are rooted in the increase in homeless people suffering from mental illness and drug addiction.

In 2012, after many years of downsizing, a large mental hospital called Riverview was closed. It was decided that it would be more humane to treat people suffering from mental illnesses in the community rather than in an institutional setting.

Unfortunately, adequate community treatment for mental illness was never provided.

As a result, many hundreds of people suffering from profound mental illnesses are now left homeless and untreated. At its peak, in the 1950s, more than 4,500 patients lived at Riverview hospital.

Some of the policies announced by Premier Eby are likely to be helpful. One announcement was for additional funding to create more secure hospital spaces for people who are determined to be mentally ill, in need of treatment, and who are a danger to themselves or others.

Unfortunately, to blunt political claims that the social disorder and random attacks on strangers are the results of failing to seek the detention of people once there are arrested and charged with a criminal offence, changes to the Crown Counsel Policy Manual were also announced.

The Crown Counsel Policy Manual is intended to provide direction to Crown Counsel to ensure consistent principled decision-making when conducting criminal prosecutions.

The changes were intended to make the relevant policies sound tougher.

Unfortunately, many of the changes imply that Crown Counsel was not considering relevant things when making decisions on bail. That has not been the case.

In addition, to the extent that the changes create the impression with the judiciary that when Crown Counsel is seeking someone’s detention, it is being done for political reasons rather than because of a reasoned conclusion that detention is appropriate, the changes to the policy may undermine the seriousness with which such submissions are received.

Also, on the show, two new pieces of legislation intended to address a housing shortage are discussed.

Bill 44, the Building and Strata Statutes Amendment Act, 2022, will eliminate the ability of strata corporations to restrict the rental of strata units. It will also eliminate all age restrictions for strata properties, except for 55+ buildings. The changes intend to increase the number of available rental units.

For people who own strata units they do not occupy themselves, the elimination of all rental restrictions will subject owners to an extra “vacancy tax” if the units are not rented. Before the legislation, owners could avoid the vacancy tax if they were not permitted to rent units due to strata rental restrictions.

Bill 43 – the Housing Supply Act, will permit the provincial government to set targets for municipalities to permit more housing to be constructed. If targets are not being met, the legislation permits municipal records to be examined and, ultimately, the provincial government to amend zoning bylaws and issue construction permits.

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

This week on Legally Speaking with Michael Mulligan:

British Columbia has had inadequate legal aid funding for family and poverty law cases for many years.

In 1992 the NDP government imposed a special tax on legal services to fund legal aid. Anyone who hires a lawyer pays this special 7% tax that applies to no other professional services.

In 2002 the Liberal government of the day cut legal aid funding by 40% but kept the tax in place. The result was dramatic cuts to family and poverty law services and legal aid clinics across the province being closed. The government did, however, keep the special tax in place.

This has disproportionately impacted women and indigenous people who relied more heavily on the services that were eliminated.

By 2017 the special tax on legal services was raising more than $210 million per year.

By 2022 only $108.6 million of the funds collected by the special tax was being provided to Legal Aid BC.

Rather than stopping the diversion of funds raised by the special tax on legal services, the government has proposed having paralegals, rather than lawyers, assist with family law and other matters for the poor.

This has been resisted by the Law Society, which is the self-government body that regulates lawyers.

One of the core obligations of the Law Society is to ensure that the public is protected by ensuring people providing legal services are properly qualified.

Having unsupervised paralegals providing family law services is a concern because family law can be very complicated, and mistakes can impact important things such as child custody, spousal and child support.

In an attempt to force the use of paralegals, the provincial government has issued an Intentions Paper which proposes giving the government more control over the Law Society by decreasing the number of elected Benchers and increasing the number of Benchers appointed by the government.

Law Society Benchers are similar to a board of directors. 

This proposal is of significant concern because the legal profession needs to be independent of the government. After all, lawyers often oppose the government.

Until November 18, 2022, an online survey is open concerning the government’s proposals.

Also, on the show, the Supreme Court of Canada has determined that judges are permitted to impose harsher sentences than what is being requested by the Crown; however, they are required to advise the parties they plan to do this and permit the opportunity for further submissions.

The SCC distinguished cases where there was a disagreement on when the sentence should be from cases where there is a joint submission.

For joint submissions, a judge must do what is requested unless it is so inappropriate that it would bring the administration of justice into disrepute.
 
Finally, a judicial recount from the municipal in Port Moody is discussed.

The initial machine vote count resulted in a two-vote difference between the two candidates. Feeding some of the ballots through the vote-counting machine resulted in a slightly different result. A further machine recount identified six ballots the courting machine was having trouble reading.

When these ballots were looked at, the intention of the voters was clear. The result of counting the votes property was a tie. Pursuant to the Local Government Act, the tie was resolved by a random draw.

The candidate who was initially two votes behind won the random draw and became the council member.

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

This week on Legally Speaking with Michael Mulligan:

All too often, people with serious mental illnesses end up in the criminal justice system when they are not afforded adequate and sustained medical treatment.

In a case discussed on the show, a man who had suffered from multiple mental health issues since he was eight years old was charged with assault with a weapon and aggravated assault after he attacked a relative and an elderly neighbour one day after he was released from jail.

The man suffered from a range of mental health issues, including schizoaffective disorder, bipolar disorder, neurological impairment, traumatic brain injury and the toxic effect of extensive and severe substance use.

For many years he had been convicted of various criminal offences. He was repeatedly incarcerated. He would receive some treatment, be released, re-offend, and go back to jail.

The man first began hearing voices at age 17. He believed that the devil Lucifer had stalked him. He had twice carved “666” into his arm as part of these beliefs and then scratched the numbers out with deeper cuts as he would subsequently become afraid that he could not go to heaven while bearing the marks. For years he believed that by drinking his urine, he could keep evil spirits away. He would also keep feces beneath his bed to trap evil spirits so that he could flush them away.

He attacked an elderly neighbour and his cousin the day after being released from jail because he believed Lucifer had told him they had sexually abused others. He believed that he was an angel working to protect victims of sexual assault.

The elderly neighbour suffered cigarette burns, facial bruising, a broken jaw, and several broken teeth.

The case is a tragic example of the inadequacy of long-term, secure mental health treatment facilities in British Columbia. The legislation to do this exists in the form of the Mental Health Act. What is not available are sufficient, secure, long-term treatment resources. 

Putting someone like this man into jail does little to address his lifelong mental health needs and does not protect the public for any longer than each jail sentence.

In the case discussed, the man was initially unfit to stand trial. This means he couldn’t understand basic things, such as the nature of the proceeding.

After seven months of intensive mental health treatment, he was determined to be fit to stand trial.

Then, with the assistance of a lawyer, he admitted that he had committed the offences. The only issue for the judge was whether he should be found not criminally responsible as a result of a mental disorder (NCRMD).

An NCRMD finding can occur when someone is suffering from a mental disorder that prevented them from knowing what they did was wrong at the time.

The judge hearing the case, concluded that the man was NCRMD. As a result, he will remain in a secure mental health facility indefinitely unless he is no longer determined to be a danger.

Also, on the show, an application to unseal documents relating to the investigation of the murder of a Victoria realtor by the name of Lindsay Buziak in February of 2008 is discussed. The application was denied on the basis that the judge concluded the investigation was still active after 14 years and that permitting public access to the material could result in others being placed at serious risk of physical harm.

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

This week on Legally Speaking with Michael Mulligan:

In the context of a judicial review of a decision to compel a patient to continue to receive antipsychotic medication against her will for many years, the difference between bail in a criminal case and involuntary treatment pursuant to the Mental Health Act is discussed.

In most circumstances, when someone is arrested for a criminal offence, there is a presumption that they will be released on bail pending their trial.

If people who were accused of criminal offences were routinely held in jail before having a trial, the presumption of innocence would have little practical meaning.

The right not to be denied bail without just cause is not only specified in the Criminal Code but is also a constitutional right.

The circumnutates in which someone can be kept in jail without having been found guilty of a criminal offence are where it is necessary to 1) ensure the person will attend court for their trial, 2) for the protection or safety of the public or 3) to maintain confidence in the administration of justice.

In most cases, when the police arrest someone, they decide it’s appropriate to release the suspect with whatever conditions they believe are appropriate to ensure the person will attend court and not pose a safety risk.

Common conditions would include things like reporting to a bail supervisor, not possessing weapons, not having contact with specified individuals, or attending to specified locations.

It is not lawful to hold someone in jail without a trial or to impose bail conditions for other reasons. Bail conditions, in a criminal case, cannot be imposed to punish an accused, to enforce the treatment of a mental health or addiction issue, or to encourage someone to plead guilty by making them wait in jail for a long time to have a trial.

Because the right to bail is constitutionally protected and central to the presumption of innocence, it is not subject to being changed into a mechanism to force people who are mentally ill or addicted to drugs to get treatment.

There is, however, an alternative system which is premised on helping people who suffer from mental illness and are a danger to themselves or others. This system operated pursuant to the BC Mental Health Act.

When a police officer believes someone is suffering from a mental disorder and is a danger to themselves or others, they can arrest the person and bring them to a hospital for treatment.

If a doctor concludes that someone is suffering from a mental disorder and requires supervision of care in a designated facility to protect the person or others, they can require them to remain for treatment for up to 48 hours.

If someone is to be kept longer than 48 hours, a second doctor must agree that involuntary treatment is necessary. With the approval of a second doctor, a patient can be kept for up to a month.

Beyond a month, there is a process to review the need for continued involuntary treatment. That involves a tribunal made up of a doctor or retired doctor, a lawyer, and a member of the public.

To work, however, the mental health system requires additional resources, including facilities to house and treat people who are determined to need involuntary, secure treatment.

Given the large number of homeless people who are suffering from mental illness and concurrent substance abuse disorders, additional resources of this kind would be much more effective than waiting for such people to commit a criminal offence and then trying to use the criminal bail system to keep them in jail before trial.

Follow this link for links to the cases discussed.

This week on Legally Speaking with Michael Mulligan:

A dispute over the adoption of a dog named Maddie ended up in court after the woman who “rescued” and sold her tried to get her puppies back to sell.

The dispute involved a woman in Port Alberni who has a business selling dogs that the judge concluded was misrepresented to be a registered non-profit organization called Ziggy’s Rescue.

A family purchased Maddie from the woman for $600 and signed a document entitled Foster and Adoption Contract.

The contract specified that Maddie needed to be spayed, but it turned out she was pregnant, so this wasn’t possible until the puppies were born.

When the woman who was operating Ziggy’s Rescue found out that Maddie was pregnant, she insisted that she get the puppies because she wished to sell them. The woman showed up at the home of the family that purchased Maddie and was screaming, “puppy thieves,” called the police, and yelled, “we will bury you” at the family. 

The woman operating Ziggy’s Rescue ultimately sued the family in small claims court, seeking $5,000 in “lost revenue” and to get Maddie back.

The judge hearing the case, concluded that the woman operating Ziggy’s Rescue was not a reliable witness. He found that she had misrepresented that she was operating a non-profit organization when she was operating a business. The judge asked the woman if she declared her income, and she responded, “not at this time,” and that “we will get caught up.”

The judge concluded that various terms in the Foster and Adoption Contract were unreasonable and unenforceable. He also concluded that Maddie’s best interest should be a consideration when interpreting the contract on the basis that “we need to recognize that dogs, and other pets, are not simply “things” like a chair or a car.”

The judge concluded that “The time has come for Maddie to finally know she is in her forever home and that the defendant’s family are made whole.”

Also, on the show, a case involving BC Mink Breeders is discussed. In 2021 the BC government decided that mink farming should be phased out in the province by 2025 based on the risk they pose to public health. There was evidence that mink could catch and transmit COVID-19 and a concern that this could result in a dangerous mutation of the virus.

The Mink Breeders are challenging the decision, alleging that it was unreasonable. To do so, they are seeking access to the evidence considered by the provincial cabinet. The provincial government did not want to disclose this information.

The judge hearing the case concluded that while the concept of public interest immunity can be used to keep sensitive and confidential documents secret, it was not absolute. As a result, the government has been ordered to provide an affidavit detailing what documents it wished to keep secret and on what basis public interest immunity was being claimed for each of them so that the judge can decide what should be disclosed.

Finally, on the show, a case involving a small strata corporation and permission to cross a deck to get to a set of stairs leading to a backyard is discussed.

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

 

Fentanyl trafficking sentences in BC just got a major overhaul. The BC Court of Appeal has mapped out clearer sentencing guidelines, creating a three-tier system that reflects the devastating impact of the deadly opioid crisis. Street-level dealers now face 18 months to 3 years, mid-level traffickers 4-7 years, and wholesale distributors 8-15 years behind bars. The Court emphasized this framework still allows judges to tailor sentences to individual circumstances, but makes clear that the gravity of fentanyl trafficking demands serious consequences. With over 14,500 British Columbians having lost their lives to toxic drugs in just eight years, the justice system is responding with a structured approach to punishment.

At Simon Fraser University, academic freedom and freedom of association collided when faculty members challenged their own Faculty Association's resolutions on Gaza. The controversial statements narrowly passed but sparked a legal battle under the Societies Act. The case highlights a fascinating tension - what happens when you're required to belong to an organization that takes political positions you fundamentally oppose? The court ultimately allowed the Faculty Association broad latitude in its activities, continuing a precedent that permits professional associations to venture beyond their core employment-related purposes. This ruling affects anyone in Canada who must maintain membership in unions or professional organizations.

We wrap up with a constructive dismissal case that seems straight out of a comedy sketch - except it was all too real for the employee involved. A 63-year-old comptroller was given notice of termination but required to keep working for eight months while being gradually replaced by someone actually named "Mr. Bean." Adding insult to injury, the employee was relocated to an interior office without air conditioning (at an air conditioning company!). The court recognized these cumulative actions created an intolerable work environment, awarding 15 months' severance and confirming employers cannot circumvent termination obligations by making work conditions unbearable.

Have questions about how these legal developments might affect you? We'd love to hear your thoughts on these fascinating intersections of law and everyday life. Subscribe to catch our weekly legal insights and join the conversation about how our justice system continues to evolve.

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

This week on Legally Speaking with Michael Mulligan:

In response to criticism from mayors and others, a report entitled A Rapid Investigation into Repeat Offending and Random Stranger Violence in British Columbia was prepared.

The authors of the report, a retired deputy police chief, and an academic, found that in 2021, while there had been a 7.55% reduction in the non-violent crime severity index in British Columbia, there had been a 4.32% increase in the violent crime serenity index.

Part of this was the result of apparently random assault of strangers. In Vancouver, offences of this kind increased by 35% in 2021.

The report concluded that most suspects in these offences had been apprehended previously under the Mental Health Act.

The Mental Health Act permits people to be apprehended and held for involuntary mental health treatment when someone is determined by doctors to be a danger to themselves or others. Predicting this is, of course, difficult and available resources are inadequate. 

The report explains some of the history of treatment for people with mental illness in British Columbia. Between 1913 and 2012 there was a facility called Riverview Hospital, located in Coquitlam. It provided treatment for people with mental illness in a secure setting. By 1956, there were 4,300 patients living at Riverview.

Riverview was closed in 2012 and the theory was that psychiatric treatment would become “community based”.

Unfortunately, there have not been sufficient resources provided for community based psychiatric care.

As a result, people with serious mental illness and, frequently, drug additions have ended up homeless or living in temporary shelters.

In 2017 BC Corrections concluded that 75% of people admitted to provincial jails had a mental illness and or a substance use disorder.

The report concluded that the property and violent crime committed by people who are suffering from mental illness and drug addiction could not be meaningfully addressed by longer jail sentences. They concluded that while people who are in jail for longer would prevent them from committing crimes while they are incarcerated, this would only result in a potential “small gain” because the people would eventually be released with the same mental health challenges.

Even if was effective, there is insufficient capacity in jail. All 10 provincial jails in British Columbia had an average of 2,500 prisoners in 2021.

This is approximately the number of people who died of drug overdoses in the same year: 2,224.

In 1956, when there were 4,300 patients in River View, the population of BC was less than 1.4 million. As of 2022, the population is more than 5.2 million.

Many of the recommendations in the report involve the urgent need for additional treatment capacity for people with mental illness and drug addiction. These include the need for Crisis Response and Stabilization Centres, where people could receive immediate help. Such facilities would allow people to walk in for help without long waiting periods. They would also provide the police or paramedics somewhere to take people for immediate help.

The report also suggests that assistance for people on a voluntary basis is created, consideration should also be given to a system of involuntary treatment.

An interesting submission by the BC First Nations Justice Council was released, along with the main report. That submission is critical of some of the report’s recommendations and points out the massive overrepresentation of indigenous people in the justice system, and the systemic reasons for this.

Follow this link for links to the report and legislation discussed.

This week on Legally Speaking with Michael Mulligan:

In 2008 the age at which someone can consent to sexual activity was raised from 14 to 16.

Some exceptions permit people younger than 16 to consent to sexual activity with someone close in age. A 12- or 13-year-old can consent to sexual activity with someone who is less than two years older. A 14- or 15-year-old can consent to sexual activity with someone who is less than five years older.

The close-in-age exceptions do not apply if the other person is in a position of trust or authority towards the complaint or if the complaint is in a relationship of dependency or exploitation with them.

It is also a defence to a charge of sexual assault based on an inability to consent because of age, where the accused person mistakenly believed the complaint was old enough to consent, assuming the accused person took all reasonable steps to confirm the age of the complaint.

What “all reasonable steps” will amount to will depend on the circumstances. If someone looked to be 50 years old, nothing but looking at them would likely be sufficient. If, on the other hand, the complaint looked young and was attending an elementary school, all reasonable steps might include checking ID and making multiple independent inquiries to confirm the person’s age.

In the case discussed, a woman who was 24 or 25 years old at the time engaged in sexual activity with a boy who was, in fact, 15 years old but, according to the accused, claimed to be 18 years old.

The judge hearing the case convicted her on the basis that she needed to make inquiries to confirm the boy’s stated age beyond asking him how old he was.

The woman, who had no criminal record, and was deemed a low risk of reoffending, was sentenced to 5.5 years in jail.

The judge found it would be unfair to male offenders convicted of a similar offence if the woman received a lower sentence than would have been imposed on a male.  The judge further concluded that the fact the woman had a 6-year-old son or that she had been sexually assaulted as a child were not reasons to reduce the sentence.

Also, on the show, a case involving the suspension of two elected school trustees is discussed.

The school board in question had 9 members who were divided into two factions on many issued. The majority faction had 5 members and the minority 4.

The majority faction of the board concluded that two members of the minority faction had engaged in a “workplace bullying” of school board employees by statements at meetings and online postings that would cause the employees to be “humiliated or intimidated.” As a punishment, the majority purported to suspend the two members and did not permit them to attend meetings.

The judge hearing the case concluded that the school board had no authority to suspend elected members from attending meetings. She concluded that the School Act, which governs school boards, was a complete code setting out when an elected member could be suspended, and there was no implied authority to do so for other reasons.

Finally, on the show, a case involving a dismissed human rights complaint is discussed. The complainant was fired from his job as a student advisor at the University of BC because he had been using a dating app for gay men to meet people, including 20 university students.

While the student advisor believed that he was discriminated against because of his sexual orientation, he did not have evidence to support this contention. The Court of Appeal concluded that a “mere possibility [of discrimination] … cannot be enough to require a hearing.”

Follow this link for links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

Non-pecuniary damages are compensation for personal injury losses that have not required the outlay of money. The purpose is to compensate injured people for pain, suffering, disability, inconvenience, and loss of enjoyment of life. They are also referred to as compensation for pain and suffering.

Such damages are distinct from pecuniary damages for things such as lost income, the cost of care or special damages for things like the cost of medication or medical equipment.

In 2002 the BC Court of Appeal, in a case called Brisson v. Brisson, decided that juries shouldn’t be given instructions from the trial judge with respect to what range of non-pecuniary damages should be awarded. The idea was that this should be left for the jury to decide based on the evidence rather than having judges influence this.

When a judge is deciding on the amount of non-pecuniary damages, they would consider how much has been awarded in previous cases to achieve some measure of consistency.

Another factor is that, in 1978, the Supreme Court of Canada, in a series of cases often referred to as the trilogy on damages, capped non-pecuniary damages at $100,000. The purpose of the cap was to reduce the cost of car insurance. The cap has increased in accordance with inflation but remains in place. The maximum amount that can be awarded in catastrophic cases is now approximately $400,000.

Because juries are given no instructions about the cap or what has been awarded in previous cases, it is not uncommon for there to be appeals when a jury award is higher than in similar cases or above the cap.

In the case discussed on the show, a jury awarded a single mother who was injured in a car accident $350,000 in non-pecuniary damages as a result of injuries that persisted for at least ten years, which caused ongoing pain, the loss of ability to physically care for her children or run a daycare business.

On appeal, two of the court of appeal judges hearing the case reduced the award to $250,000. A third judge would have reduced the award to $200,000 while criticizing the lack of guidance provided to the jury.

The public policy question this all raises is who should decide how much compensation is appropriate: juries or judges.

In BC, because of the change to ICBC no-fault insurance, there is no longer any compensation for pain and suffering at all. Someone who is injured would only receive reimbursement for financial losses. Had the injury in the case discussed occurred now, the badly injured mother would have received no compensation other than for her pecuniary losses.

Also, on the show, another split decision from the BC Court of Appeal is discussed. In this case, the court was reviewing a trial judge’s decision in a sexual assault case not to permit evidence about prior sexual activity to be considered.

The case involved a married couple who were in the process of separating after the husband told his wife that he was having an affair. The wife claimed that the husband sexually assaulted her when they were living in separate bedrooms in the home. She told the police that they had engaged in consensual sexual activity the day before the allegation. At trial, she claimed that there had been no sexual activity for two weeks prior to the assault.

One of the Court of Appeal judges found that the accused husband should have been permitted to ask questions about the inconsistency. Two other judges disagreed. As a result of the split decision, the husband will be allowed to appeal to the Supreme Court of Canada.

Follow this link for links to the cases discussed.